Master Software Sub License Agreement - Casino Marketing SA and Gamingtech Corp.
MASTER SOFTWARE SUB LICENSE AGREEMENT
This Agreement made as of the 29th day of November, 1999.
BETWEEN:
CASINO MARKETING S.A. a body corporate with offices at the City
of San Jose, Costa Rica (the "Master Licensee")
OF THE FIRST PART
AND
GAMINGTECH CORPORATION a body corporate with offices at Belize
City, Belize, Central America ("Gamingtech").
OF THE SECOND PART
WHEREAS Gamingtech is in the gaming software licensing business.
AND WHEREAS the Master Licensee is in the business of selling software
gaming licenses and wishes to sub license the Software.
AND WHEREAS Gamingtech owns certain interactive gaming software and the
Master Licensee desires to license the object code for such software.
AND WHEREAS Gamingtech is willing to grant the Master Licensee a non
exclusive, non transferable license to the object code for such software for
subsequent sub licensing, subject to the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual promises, covenants and
obligations contained herein, the parties agree as follows:
1. INTERPRETATION
1.1. Words and phrases used herein have the following meaning:
1.1.1. "Agreement" means this Master Software Sub License Agreement, including
Schedules "A", "B", "C" and "D" attached hereto.
1.1.2. "Business" means the operation and management of an online Internet
entertainment and game playing website, including all satellite or
additional websites using the Software by any and all persons or
corporations as permitted hereunder.
1.1.3. "Client Software" means the user interface portion of the Software.
1.1.4 "Dollar" or '$' means United States dollars.
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1.1.5. "Electronic Distribution" means the electronic delivery of computer
software using on-line services, the Internet, phone lines, cable
systems, servers, satellite or other public or private access network or
electronic communication mediums.
1.1.6. "End User" means an individual whom the Master Licensee, or any
permitted third party, permits to access and utilize, but not to further
distribute, the Software
1.1.7. "Gross Revenues". means gross income which is received by any PCI Sub
Licensee in connection with that PCI Sub Licensee's operation of a
Business utilizing the Software, which shall be calculated, with respect
to each server and database operated using the Software by a PCI Sub
Licensee, as the total dollars wagered on all games less all payoffs,
but before any operating, administrative or other expenses, federal,
provincial, or foreign sales, excises or other taxes or tariffs imposed
on the use of the Software. For the purposes of this Agreement Gross
Revenues shall not include any negative amount. Where Gross Revenues
from the Business of a PCI Sub Licensee for a period result in a
negative number, Gross Revenues for that particular PCI Sub Licensee for
that period shall be deemed to be zero.
1.1.8. "Master License Fee" means the aggregate $100,000 payable by the Master
Licensee to Gamingtech pursuant to Clause 5.1 hereof
1.1.9. "License Fees" means the fees payable by the Master Licensee to
Gamingtech pursuant to Clause 5.3.
1.1.10. "Software" means the object code versions of the computer software
described in Schedule "A" herein.
1.1.11. "Master License" means the limited night to sub license the Software
provided to the Master Licensee hereunder.
1.1.12. "CM Sub License" means the limited right to use the Software which is
provided to a third party by the Master Licensee in accordance with the
terms of this Agreement and pursuant to a duly executed CM Sub License
Agreement.
1.1.13. "CM Sub Licensee" means a third party holding a CM Sub License.
1.1.14. "CM Sub License Agreement" means the form of agreement set out in
Schedule D hereto.
1.1.15. "Set Up Fee" means the $40,000 payable by the Master Licensee to
Gamingtech in respect of each and every CM Sub License, pursuant to
Clause 5.2 hereof
1.2. Currency
Unless otherwise indicated, all dollar amounts referred to in this Agreement are
expressed in United States Dollars.
1.3 Sections and Headings
The division of this Agreement into sections and the insertion of
headings are for
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convenience of reference only and shall not affect the interpretation of
this Agreement. Unless otherwise indicated, any reference in this Agreement
to a section or a Schedule refers to the specified section of or Schedule
to this Agreement.
1.4. Number, Gender and Persons
In this Agreement, words importing the singular number only shall include
the plural and vice versa, words importing gender shall include all genders
and words importing persons shall include individuals, corporations,
partnerships, associations, trusts, unincorporated organizations,
governmental bodies and other legal or business entities.
1.5. Accounting Principles
Any reference in this Agreement to generally accepted accounting principles
refers to generally accepted accounting principles as approved from time to
time by the Canadian Institute of Chartered Accountants or any successor
institute. This reference shall not be construed so as to imply any
attornment to Canadian jurisdiction or laws.
1.6. Time of Essence
Time shall be of the essence of this Agreement.
1.7. Severability
If any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect, such
determination shall not impair or affect the validity, legality or
enforceability of the remaining provisions hereof, and each provision is
hereby declared to be separate, severable and distinct.
1.8. Successors and Assigns
This Agreement shall inure to the benefit of and shall be binding on and
enforceable by the parties and, where the context so permits, their
respective successors and permitted assigns.
1.9. Amendment and Waivers
No amendment or waiver of any provision of this Agreement shall be binding
on any party unless consented to in writing by such party. No waiver of any
provision of this Agreement shall constitute a waiver of any other
provision, nor shall any waiver constitute a continuing waiver unless
otherwise expressly provided.
1.10 Schedules
The following Schedules are attached to and form part of this Agreement:
Schedule A - Software
Schedule B - End User License Agreement
Schedule C - Description of Software
Schedule D - CM Sub License Agreement
2. GRANT OF MASTER SUB LICENSE
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2.1 Master Sub-License: Subject to the terms and conditions hereof Gamingtech
hereby grants to the Master Licensee and the Master Licensee accepts from
Gamingtech: (1) a worldwide, nonexclusive non transferable right to sub
license the Software only in connection with the Business to be operated by
a CM Sub Licensee pursuant to the terms of an executed CM Sub License
Agreement and to permit the CM Sub Licensee to transmit the Client Software
only in object code form to End Users by means of Electronic Distribution;
and (ii) a worldwide, non-exclusive non transferable right to permit a CM
Sub Licensee, pursuant to the terms of an executed CM Sub License
Agreement, to grant to End Users the right to use the Client Software in
object code form, only while connected to a server on which the server
component of the Software is installed.
2.2 End User License Agreement: The Master Licensee shall ensure that all CM
Sub Licensees display to End Users an End User License Agreement ("EULA")
prior to download of the Client Software by End User. Such EULA shall
contain provisions which exclude Gamingtech and its parent and subsidiary
corporations from all liabilities related to the End Users use of the
Client Software, and in any event shall contain provisions substantially
similar to those contained in Schedule "B" hereto. The EULA shall be
provided in a format that the End User may download onto End User's hard
disk. The Master Licensee shall ensure that all CM Sub Licensees require
all End Users to either accept or reject the terms and conditions of the
EULA by means of a point and click mechanism or other mechanism acceptable
to Gamingtech prior to the download of the Client Software and, in the
event End User rejects the EULA, End User shall not be permitted to
download the Client Software. The Master Licensee agrees that the mechanism
used by the Master Licensee and all CM Sub Licensees to require End Users
to accept or reject the EULA shall be in a form which will record and store
all End Users acceptance of the EULA for future reference.
2.3. Restrictions: Neither the Master Licensee nor any CM Sub Licensee shall
authorize or permit any third party, to reverse engineer, decompile or
disassemble the Software or to attempt to do the same. If the Master
Licensee becomes aware of the source code of the Software it shall not make
use of or disclose the same to any party.
2.4. No Further Sub-License: The Master Licensee shall have no night to sub
license or otherwise make available the rights granted to it hereunder
except in accordance with an executed CM Sub License Agreement. The Master
Licensee shall not make any changes to the form of the CM Sub License
Agreement which shall, in the sole opinion of Gamingtech, diminish the
rights of or increase the liability of Gamingtech or the Master Licensee to
any third party. A CM Sub Licensee shall have no right to sub-license or
otherwise make available the rights granted to the CM Sub Licensee by the
Master Licensee to any third party (related or otherwise) and such rights
shall only be used by the CM Sub Licensee in connection with its operation
of the Business which shall be comprised of the installation of the
Software on one server for each CM Sub Licensee and the maintenance of one
data base only and which may include multiple websites with individual
URL's which are directed to such single server and single database
permitted for each CM Sub Licensee.
2.5. No Business by Master Licensee: The Master Licensee shall not operate any
Business and shall not permit any parent, associate, affiliate or third
party to operate any Business except
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pursuant to the terms of an executed CM Sub License Agreement.
3. GOVERNMENT APPROVALS
3.1 The Master Licensee warrants and represents that it has or will have
obtained prior to commencing any activities pursuant to this Agreement, all
required government approvals and permits as of the date of this Agreement
in order to sub license the Software as provided herein and will ensure
that all CM Sub Licensees hold all required government approvals and
permits in order to use the Software in their Business, including Internet
gaming licenses, and to operate their Business and that they will maintain
such approvals and pen-nits throughout the term of this Agreement and any
CM Sub License Agreement and obtain any government approvals and permits
that subsequently become required during the term of this Agreement or any
CM Sub License Agreement.
OWNERSHIP
4.1 Software: Except for the limited distribution and sub license rights
granted to the Master Licensee hereunder, Gamingtech retains all right,
title and interest, including intellectual property rights, in and to the
Software, as between Gamingtech, the Master Licensee and all CM Sub
Licensees.
4.2 Proprietary Rights Notices: Neither the Master Licensee nor any CM Sub
Licensee shall remove any copyright or other proprietary rights notices
contained within the Software.
5. PAYMENT
5.1 Master License Fee: In consideration of the nights granted by Gamingtech to
the Master Licensee hereunder, the Master Licensee shall pay Gamingtech
the Master License Fee as to $30,000 upon execution of this Agreement and
shall pay Gamingtech four (4) $17,500 license fee payments, the first of
which shall be due on the date which is three (3) months from the date
hereof and shall make three (3) subsequent $17,500 payments to Gamingtech
on the dates which are six (6), nine (9) and twelve (12) months from the
date of this Agreement, respectively. Interest shall accrue on the balance
of $70,000 represented by the four $17,500 payments at the rate of six (6%)
percent per annum calculated annually and payable quarterly at the same
time as the four payments are to be made.
5.2 Master License Fees: In respect of each and every CM Sub License Agreement,
the Master Licensee shall pay Gamingtech a Set Up Fee of $40,000 and shall
pay Gamingtech monthly License Fees as set forth in Clause 5.3. Each CM Sub
Licensee shall acquire an appropriate server for installation of the
Software and shall acquire all appropriate third party software, including,
without limiting the generality of the foregoing, the following third party
software:
Crystal Reports 7.0
PC Anywhere
MSSQL 6.5 or 7.0
Microsoft NT Server with SP4
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5.3. License Fees: As further consideration of the rights granted to the Master
Licensee hereunder, the Master Licensee shall pay to Gamingtech an ongoing
License Fee calculated as 15% of the Gross Revenue of each and every CM
Sub Licensee for the term of each CM Sub License Agreement and any
extensions thereof.
5.4. Payment: The Master Licensee shall pay License Fees to Gamingtech under
Clause 5.3 on a monthly basis commencing 45 days after each particular CM
Sub Licensee commences a Business as determined by Gamingtech. License
Fees shall be calculated monthly and paid within fifteen (15) days of the
end of each month thereafter and the Master Licensee shall include, with
each payment of License Fees, a report specifying the Gross Revenue earned
by each and every CM Sub Licensee during the period. Any net loss or
negative revenues of a CNI Sub Licensee in a particular month shall be
treated as zero Gross Revenues for the month for that CM Sub Licensee and
there is no carry forward of such amounts in the subsequent calculation of
Gross Revenues for that CM Sub Licensee.
5.5 The obligation of the Master Licensee to pay Set Up Fees or License Fees
to Gamingtech in respect of a CM Sub License shall not be diminished or
suspended, in any respect because of the failure of a CM Sub Licensee to
make any type of payment to the Master Licensee under the terms of a CM
Sub License Agreement.
5.6 Website: The Master Licensee and all CM Sub Licensees shall be responsible
for all website design, construction and all costs associated therewith.
5.7. Taxes: The Master Licensee and each CNI Sub Licensee shall be responsible
for paying all use, sales or value added taxes, duties or governmental
charges, whether presently in force or which come into force in the
future, related to the deliveries and payments hereunder or under the
terms of a CM Sub License Agreement.
5.8. Records: The Master Licensee and each CM Sub Licensee will maintain, in
accordance with generally accepted accounting principles, complete and
accurate books and records in respect of this Agreement, all CM Sub
License Agreements and the CM Sub Licensee's operation of a Business and
the Gross Revenue and other amounts received in connection therewith and
all License Fees due or paid to Gamingtech thereunder.
5.9. Audit: Gamingtech shall have the right, on reasonable notice to the Master
Licensee to a cause the Master Licensee, no more often than once in any
twelve (12) month period, in respect of the Master License or a particular
CM Sub License, to appoint an independent third party to examine the
Master Licensee's books and records, or to cause the Master Licensee to
appoint an independent third party to examine a CM Sub Licensees books and
records, in each case, during regular business hours, in order to verify
compliance with the terms of this Agreement or any CM Sub License
Agreement. Any such audit shall be at the expense Gamingtech unless the
audit reveals an underpayment by the Master Licensee or a PCI Sub Licensee
of greater than five (5%) percent in which case the audit shall be at the
expense of the Master Licensee or the CM Sub Licensee, as the case may be.
The Master Licensee shall forthwith pay to Gamingtech the amount of any
deficiency identified by the audit.
5.10. Notwithstanding the provisions of Clause 5.2, the Master Licensee shall
not be required to pay a Set Up Fee to Gamingtech in respect of the first
CM Sub License granted by the Master Licensee only, however the Master
Licensee shall pay all License Fees in respect of such first CM Sub
License as set out in Clause 5.3. This Clause 5.9 represents a one time
only exemption from the obligation of the Master Licensee to pay the Set
Up Fee in respect of one CM Sub Licensee only.
6. SUPPORT
6.1. Upgrades: Provided that the Master Licensee or any CM Sub Licensee is not
then in default hereunder or under the terms of a CM Sub License
Agreement, during the term of this Agreement Gamingtech shall provide
certain upgrades to the Software, designated as such by Gamingtech, to the
Master Licensee or any such CM Sub Licensee,
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at no cost. All upgrades to the Software shall be considered Software for
the purposes of this Agreement. Upgrades to the Software shall consist of
new games and language localization, as designated as such from time to
time by Gamingtech.
6.2. Other Services: If services beyond Gamingtech's warranty obligations are
requested by the Master Licensee or any CM Sub Licensee and Gamingtech
elects to provide such service, the Master Licensee or the CM Sub Licensee
as the case may be, shall be required to pay additional fees for such
services on the basis of the applicable rates then in effect for
Gamingtech, but Gamingtech shall be entitled to terminate such service at
any time, without notice. Any work performed outside of the hours of 8:30
a.m. to 5:30 p.m., local time of the place where services are performed,
Monday through Friday exclusive of Belizian statutory holidays, shall be
charged at the applicable overtime rates.
6.3. Responsibility for Toll Charges: For any of the services referred to in
Clause 6.2 it shall be the Master Licensee's responsibility to pay for or
reimburse Gamingtech for any toll charges incurred in order to respond to
inquiries or to obtain access to the particular system by telephone.
6.4. Responsibility for Payment: The Master Licensee shall be invoiced the
amounts calculated under Clause 6.2 at the end of the month in which
services were provided. The Master Licensee shall be required to pay
invoices received within thirty (30) days following receipt failing which
interest shall be payable thereon at the rate of twenty-four (24%) per cent
per annum. If services were performed for the benefit of a CM Sub Licensee,
the Master Licensee shall be responsible for payment unless the Master
Licensee has not been informed of the services prior to the provisions
thereof, and has objected to its payment obligations.
GAMINGTECH WARRANTIES, REPRESENTATIONS AND COVENANTS
Gamingtech warrants, represents and covenants to the Master Licensee that:
7.1. Capacity: It has the necessary capacity to enter into this Agreement.
7.2. No Infringement: To the best of its knowledge, information and belief, the
rights of the Master Licensee as provided hereunder will not infringe upon
any patents or copyrights of
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any third party.
7.3 IP Tracking: Gamingtech warrants that the IP tracking capability of the
Software will enable the Master Licensee and any CM Sub Licensee to
monitor/track traffic emanating from a satellite website properly
configured, maintained and connected to a server on which the Software is
properly installed.
7.4. Program Error: Gamingtech warrants that if program errors (defects in the
Software which prevent substantial conformance to the Software
Specifications set out in Schedule C hereto) occur during the term of this
Agreement then, provided that:
iii. the Master Licensee provides prompt notice to Gamingtech of such
program error;
iv. the Master Licensee provides a full and complete disclosure of the
program error and any input or output necessary to assess the same;
V. this Agreement remains in effect and the Master Licensee is not then
in default hereunder;
vi. the Master Licensee allows Gamingtech access to the Software via the
Internet at any and all times and from such place as Gamingtech may
reasonably designate from time to time;
vii. the Software or the server on which the Software was originally
installed has not been modified by the Master Licensee or any third
party; and
viii. provided the program error can be reproduced on Gamingtech's current
Software.
Gamingtech will use reasonable efforts to correct such errors within 60
days following receipt of notice from the Master Licensee of such defects.
If the parties hereto disagree as to whether a program error is
Gamingtech's responsibility hereunder, it shall be the Master Licensee's
obligation to demonstrate and document the program error in the Software.
The Master Licensee acknowledges that its only remedy available in relation
to the occurrence of a program error and the only remedy of a CM Sub
Licensee in respect of a program error, shall be to require Gamingtech to
use reasonable efforts to correct the same and that Gamingtech shall not be
liable for any damages resulting from the occurrence of a program error
however caused, subject to Section 10.
7.5. Upgrades: During the term of this Agreement Gamingtech shall provide the
Master Licensee with upgrades as provided in Clause 6.2. As a result,
Gamingtech's warranty obligations hereunder are contingent on the
MasterLicensee being able to reproduce the error conditions on Gamingtech's
current Software. If the error conditions shall not be so reproduced, the
error conditions shall not be considered to be errors within the Software
and therefore Gamingtech shall not be required to perform further services
in relation to the error conditions stated in Clause 7.4.
7.6. Backup Copy: The Master Licensee agrees to maintain and shall cause all CM
Sub Licensees to maintain a current backup copy of the Software and to make
the same available to Gamingtech at Gamingtech's request.
7.7 Non Warranty Items: Examples of service not covered by Gamingtech's
warranty include, but are not limited to:
i. service required due to failure of hardware;
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ii. service required due to unauthorized modification to the Software or
interference caused by third party software installed on a server;
iii. service required due to improper installation of Software, if the
Software has not been installed by Gamingtech;
iv. failure of software other than the Software as defined hereunder;
v. force majeure;
vi. default or negligence of the Master Licensee;
vii improper use or misuse of the Software or the hardware; and
viii. providing operating services, accessories or supplies.
7.8. No obligation to CM Sub Licensee: Gamingtech shall have no obligation to
any CM Sub Licensee in connection with any matter, including warranty
matters related to the Software and shall only be obligated to deal with
the Master Licensee in respect of any and all warranty matters.
7.9. Limitation: EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT THE SOFTWARE IS
PROVIDED AND SUB LICENSED "AS IS" AND THERE ARE NO WARRANTIES,
REPRESENTATIONS OR CONDITIONS, EXPRESSED OR IMPLIED, WRITTEN OR ORAL,
ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE,
COURSE OF PERFORMANCE OR SERVICE PROVIDED HEREUNDER OR IN CONNECTION
HEREWITH BY GAMINGTECH. EXCEPT AS EXPRESSLY PROVIDED HEREIN GAMINGTECH
DISCLAIMS ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABLE QUALITY,
NONINFRINGEMENT, MERCHANTABILITY, DURABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT
LIMITED TO STATEMENTS REGARDING PERFORMANCE OF THE SOFTWARE, WHICH IS NOT
CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY
GAMINGTECH.
7.10. No Variation: NO AGREEMENTS VARYING OR EXTENDING THE ABOVE WARRANTY OR
LIMITATIONS WILL BE BINDING ON GAMINGTECH UNLESS IN WRITING AND SIGNED BY
AN AUTHORIZED REPRESENTATIVE OF GAMINGTECH.
8. MASTER LICENSEE'S WARRANTIES, REPRESENTATIONS AND COVENANTS
The Master Licensee warrants, represents and covenants to Gamingtech as follows
and acknowledges that Gamingtech is relying on such warranties, representations
and covenants in entering into this Agreement and the transactions contemplated
in this Agreement:
8.1 Capacity: The Master Licensee has the necessary capacity to enter into
this Agreement and shall use or permit the use of the Software only in
accordance with in compliance with the laws of the Jurisdiction in which a
Business is conducted by a CM Sub Licensee or the Software is to be used
and in accordance with generally accepted gaming industry standards and
practices.
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8.2. Access: In order to satisfy any warranty matters, the Master Licensee shall
provide Gamingtech with access to the Software in use by all CM Sub
Licensees via the Internet using such software for such purposes as
Gamingtech may determine.
8.3. Bandwidth: Master Licensee will ensure that all CM Sub Licensees supply an
adequate amount of bandwidth to ensure remote access by Gamingtech for the
purpose of warranty maintenance and upgrades.
8.4 Master Licensee Business: The Master Licensee shall not conduct the
Business or use the Software in connection with the Business and shall only
sub license the Software, or pen-nit the use of the Software pursuant to
executed CM Sub License Agreements.
8.5. No Modification: The Master Licensee shall not modify the terms of the CM
Sub License Agreement from that form set out as Schedule D hereto in any
manner which, in the sole opinion of Gamingtech would reduce the rights of
or increase the liability of Gamingtech to any third party without, in each
case, first obtaining the written approval of Gamingtech. Any consent to a
modification of the CM Sub License Agreement shall not be deemed or
considered a continuing consent to modifications and all modified CM Sub
License Agreements shall require the prior written approval of Gamingtech.
9. INFRINGEMENT
9.1. Defence and Settlement: If notified promptly and in writing of any action
(and all prior related claims) brought against the Master Licensee alleging
that the Master Licensee's use of the Software under this Agreement
infringes any valid Canadian or United States patent or copyright,
Gamingtech may, subject as provided below, defend and settle that action at
its expense and may, subject as provided below, pay the costs and damages
of any type finally awarded against the Master Licensee in the action, but
is not obligated to do so, and provided that (i) Gamingtech shall have sole
control of the defense of any such action and all negotiations for its
settlement or compromise; and (ii) the Master Licensee and where applicable
those for whom the Master Licensee is responsible, cooperates fully with
Gamingtech in its defense of the action. If the Master Licensee receives
notice of a valid claim or demand regarding infringement, or if the use of
the Software shall be prevented by injunction, Gamingtech shall, at its
option and expense either (i) procure for the Master Licensee the right to
continued use of the Software as provided hereunder, (ii)modify the
Software so that it is no longer infringing, (iii)replace the Software with
computer software of equal capability, or (iv) terminate this Agreement as
to the infringing Software; provided that Gamingtech agrees that it will
exercise any of the options (1) to (iii) prior to exercising option (iv)
if, in Gamingtech's opinion, such options are commercially feasible to
Gamingtech. The foregoing indemnification does not extend to any claim
arising out of a modification to the Software by any party other than
Gamingtech to the extent such claim would not have arisen had such
modification not been made, any combination of the Software with any other
software or hardware to the extent such claim would not have an' sen had
such combination not been made, or the use or distribution of the Software
other than as permitted under this Agreement or a CM Sub License Agreement
and the Master Licensee shall indemnify and hold Gamingtech harmless from
any infringement arising therefrom. THE FOREGOING STATES THE ENTIRE
LIABILITY AND OBLIGATIONS OF GAMINGTECH TO THE MASTER LICENSEE OR ANY CM
SUB LICENSEE AND THE
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EXCLUSIVE REMEDY OF THE MASTER LICENSEE OR ANY CM SUB LICENSEE WITH
RESPECT TO ANY ALLEGED INTELLECTUAL PROPERTY INFRINGEMENT.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability: IN NO EVENT WILL GAMINGTECH OR ANY ASSOCIATE,
AFFILIATE, PARENT OR SUBSIDIARY CORPORATION OF GAMINGTECH, BE LIABLE TO
THE MASTER LICENSEE OR ANY CM SUB LICENSEE FOR INCIDENTAL, INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER RESULTING FROM
LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY CM SUB LICENSE AGREEMENT OR THE USE OR PERFORMANCE OF THE
SOFTWARE, OR OTHER GAMINGTECH PROVIDED MATERIAL OR SERVICES WHETHER IN AN
ACTION IN CONTRACT OR TORT INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND
WHETHER OR NOT GAMINGTECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
10.2. Aggregate Liability: Without limiting the general exclusion of liability
as provided in Clause 10.1, the liability of Gamingtech and any of its
associates, affiliates, parent or subsidiary corporations to the Master
Licensee whether for negligence, breach of contact, misrepresentation or
otherwise shall in respect of a single occurrence or a series of
occurrences shall in no circumstances exceed the $ 100,000 aggregate cash
payments actually made to Gamingtech as the Master License Fees under
Clause 5.1 of this Agreement.
11. MASTER LICENSEE INDEMNIFICATION
11.1 Indemnification: The Master Licensee agrees to indemnify and save
Gamingtech and its associates, affiliates, parent or subsidiary
corporations harmless from and against any and all claims, demands, costs
and liabilities (including all reasonable legal and attorney fees and
expenses) of any kind whatsoever, arising directly or indirectly out of
claims brought by CM Sub Licensee, End Users or any third party, and/or
brought under any law, including without limitation any government
department or agency as a result of (i) the combination or use of the
Software with any other software, hardware or other material, (ii) the
transmission of the Client Software or the use of the Client Software by
an End User, (iii) breach of Section 8 warranties; (iv) the operation and
management of a Business by any CM Sub Licensee; or (v) any act or
omission by the Master Licensee or a CM Sub Licensee regarding the use of
the Software.
12. CONFIDENTIALITY
12.1 Proprietary Information: Documentation and information (including
electronically, orally or visually disclosed information) are confidential
and "Proprietary Information" for the purposes of this Section 12 if (a)
it is designated as confidential or proprietary, by letter, stamp or
legend (b) it would be apparent to a reasonable person, familiar with the
disclosing party's business or the industry in which it operates, that
such information is of a confidential or proprietary nature, or the
disclosing party, within ten (10) days of a disclosure, indicates
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to the receiving party that such disclosure is confidential. Proprietary
Information shall not include information defined as Proprietary
Information above which the receiving party can conclusively establish (1)
was in the possession of the receiving party at the time of disclosure;
(ii) prior to or after the time of disclosure becomes part of the public
domain without the act or omission of the party to whom it was disclosed;
(111) is disclosed to the receiving party by a third party under no legal
obligation to maintain the confidentiality of such information; or (iv)
was independently developed by the receiving party. All such Proprietary
Information shall be treated confidentially by the receiving party and its
employees, contractors and agents and shall not be disclosed by the
receiving party without the disclosing party's prior written consent.
However, the receiving party may disclose Proprietary Information of the
disclosing party in accordance with judicial or other governmental order,
provided that receiving party shall give the disclosing party reasonable
notice prior to such disclosure and shall comply with any applicable
protective order or equivalent.
12.2. Treatment of Proprietary Information: Neither party shall in any way
duplicate all nor any part of the other party's Proprietary Information,
except in accordance with the terms and conditions of this Agreement. Each
party shall have an appropriate agreement with each of its employees,
contractors, agents and sub licensees having access to the other party's
Proprietary Information sufficient to enable that party to comply with all
the terms of this Agreement. Each party agrees to protect the other's
Proprietary Information with the same standard of care and procedures
which it uses to protect its own trade secrets and confidential or
proprietary information of like importance and, in any event, shall adopt
or maintain procedures reasonably calculated to protect such Proprietary
Information.
12.3. Further Treatment of Proprietary Information: Each party agrees to hold
the other party's Proprietary Information in trust and confidence for such
party and not to use the same other than as expressly authorized under
this Agreement. Each party agrees not to disclose any such Proprietary
Information without the prior written consent of the other, to anyone
other than that party's employees, contractors and agents who have a need
to know same to carry out the rights granted hereunder.
12.4. Action to Protect: Each party shall promptly report to the other any
actual or suspected violation of the terms of this Section 12, and shall
take all reasonable steps to prevent, control or remedy such violation.
12.5 Equitable Relief In recognition of the unique and proprietary nature of
the information disclosed by the parties, it is agreed that each party's
remedies for a breach by the other of its obligations under this Section
12 shall be inadequate and the disclosing party shall, in the event of
such breach be entitled to equitable relief, including without limitation,
injunctive relief and specific performance, in addition to any other
remedies provided hereunder or available at law.
12.6 Proprietary Information: For the purposes of this Agreement the Software,
and all upgrades or modifications and all materials related thereto shall
be treated as Proprietary Information of Gamingtech disclosed to the
Master Licensee and all information relating to the clients of the Master
Licensee shall be treated as Proprietary Information of the Master
Licensee disclosed to Gamingtech.
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13. TERMINATION
13.1. Term: The term of this Agreement shall be three (3 )) years commencing on
the date hereof provided that this Agreement shall automatically renew for
two successive three (3) year terms provided that: (i) the Master Licensee
is not in default hereunder at the termination of the then current three
(3) year term; (1i) the Master Licensee has not been in default during
such term for a period of sixty (60) days on a cumulative, not consecutive
basis and; (iii) no CM Sub Licensee is in default as at the termination of
the then current term of this Agreement. This Agreement may be terminated
by either party in the event of any material breach by the other party
hereto which continues after thirty (3 0) days written notice of said
breach (which notice shall, in reasonable detail, specify the nature of
the breach) by the non-defaulting party to the defaulting party. A
material breach shall include, without limitation, any breach of Sections
2, 3, 4, 5, 8 and 12.
13.2. Effect of Termination: Upon the termination of this Agreement by any party
and for any reason, the rights and licenses granted to the Master Licensee
by Gamingtech and all CM Sub License Agreements shall terminate
immediately and the Master Licensee shall and shall cause all CM Sub
Licensees to cease use of the Software and shall, at the option of
Gamingtech, return to Gamingtech or destroy all copies of the Software in
the possession of the Master Licensee and all CM Sub Licensees and
Gamingtech shall be entitled to unilaterally take any and all steps or
actions they may deem necessary to strictly enforce this Clause 13.2.
13.3. License Fees: No termination of this Agreement shall release the Master
Licensee from its obligations to pay Gamingtech Set Up Fees or License
Fees which accrued prior to such termination or which shall accrue to
Gamingtech after the effective date of such termination as a result of
the continued use of the Software after the termination of this Agreement,
nor shall any termination have the effect of releasing the Master Licensee
from the provisions of Section 12 which provisions shall survive the
termination of this Agreement.
13.4 Non Payment: Notwithstanding anything contained herein, non payment by the
Master Licensee or any CM Sub Licensee of any Set Up Fees or License Fees
provided for herein or in a CM Sub License Agreement, at the times
specified therein, shall entitle Gamingtech to immediately terminate this
Agreement or in the case of a defaulting CM Sub Licensee, to cause the
Master Licensee to terminate the CM Sub License Agreement, as the case may
be, and in such event Gamingtech shall be entitled to unilaterally take
any and all such actions it may deem necessary to prevent the continued
use of the Software.
14. REMEDIES
14.1. If the Master Licensee breaches any of its obligations hereunder and such
breach remains unremedied for a period of twenty-one (2 1) days from
notice thereof, Gamingtech shall be entitled to seek equitable relief to
protect its interests herein including but not limited to injunctive or
other equitable relief, it being acknowledged by the Master Licensee that
Gamingtech would suffer irreparable harm and that damages do not form an
adequate remedy.
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14.2. If the Master Licensee fails to completely abide by any term, condition or
covenant of this Agreement or otherwise commits a breach of this Agreement
and such breach remains unremedied for a period of twenty-one (2 1) days
from notice thereof, then Gamingtech may, at its option, immediately
terminate this Agreement by providing written notice as such to the Master
Licensee.
14.3. If the Master Licensee becomes insolvent or files a petition in
Bankruptcy, has filed against it an involuntary petition in Bankruptcy or
a Receiver is appointed over the assets of the Master Licensee, or the
Master Licensee commits an act of Bankruptcy, then Gamingtech may, at its
option, immediately terminate this Agreement by written notice as such to
the Master Licensee.
14.4. If this Agreement is terminated in accordance with the provisions hereof
the Master License Fee as provided for in Clause 5.1 will be deemed to
have been paid for the use of the Software during the time it was in the
possession of the Master Licensee and as a result, in such event, the
Master Licensee will not be entitled to any refund of the Master License
Fee, or any portion thereof
15. NOTICES
15.1. Notices: Any notice required or permitted to be given under the terms of
this Agreement shall be in writing and given by personal delivery or sent
by registered mail, postage prepaid, or by fax, to Gamingtech at 35
Barrack Road, Belize City, Belize, Central America and in the case of the
Master Licensee at the following address: 40" Street, 2 d Avenue, Suite
208, San Jose, Costa Rica. Either party may change its address for notice
by notice to the other party in the manner prescribed above. Any notice
given pursuant to this Section shall be deemed to have been received on
the date actually received.
16. GENERAL
16.1. Applicable Law: This Agreement shall be governed by and construed in
accordance with the laws of the Country of Belize and the parties attom to
the jurisdiction of the courts of Belize in respect of all matters
relating to the interpretation or enforcement of this Agreement.
16.2. Survival: The provisions of Sections 4, 7, 8, 9, 10, 11, 12, 13, 14, and
16 shall survive any termination of this Agreement until expressly waived
in writing by the party for whom they are of benefit or terminated by a
further written agreement of the parties.
16.3. Enforceability: If any provision of this Agreement is declared by a court
of competent jurisdiction to be invalid, illegal or unenforceable, such
provision or part thereof which is necessary to render the provision
valid, legal and enforceable, shall be severed from the agreement and the
other provisions and the remaining part thereof of that provision shall
remain in full force and effect.
16.4. Further Assurances: The parties agree to do all such things and to execute
such further documents as may reasonably be required to give full effect
to this Agreement.
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16.5. Entire Agreement: This Agreement constitutes the entire agreement between
the parties concerning the subject matter hereof and cancels and
supersedes any prior understandings and agreements between the parties
hereto with respect thereto. There are no representations, warranties,
terms, conditions, undertakings or collateral agreements, expressed,
implied or statutory, between the parties other than as expressly set
forth in this Agreement.
16.6. Remedies: The remedies expressly stated in this Agreement shall be in
addition to and not in substitution for those generally available at law
or in equity, except as otherwise limited herein.
16.7. Assignment: Neither party may assign this Agreement nor the rights
granted hereunder without the prior written consent of the other which
consent shall not be unreasonably withheld; provided that either party
may assign this Agreement to a successor corporation in the event of a
merger or other reorganization in which it is not the surviving entity;
and provided further that Gamingtech may assign all or any part of its
rights under this Agreement to a parent, affiliate or wholly-owned
subsidiary; provided, in every such case, that any such successor or
assignee organization is able to perform under this Agreement and agrees
to be bound by the terms hereof
16.8. Counterparts: This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed to be an original and
all of which together shall constitute one and the same instrument.
16.9. Publicity: The Master Licensee shall not and shall ensure that all CM Sub
Licensees shall not refer to Gamingtech nor to this Agreement or any CM
Sub License Agreement in public releases or advertising without securing
the prior written approval of Gamingtech.
16.10. Independent Contractors: The parties to this Agreement are independent
contractors. No relationships of principal to an agent, master to a
servant, employer to employee, franchiser to franchisee, partner or joint
venturers is established hereby between the parties. Neither party has
the authority to bind the other nor incur any obligation on its behalf.
Gamingtech shall not take part in, have any control over or participate
in the business of the Master Licensee or the Business of any CM Sub
Licensee, it being the express intention and understanding of the parties
that the CM Sub Licensees shall conduct the Business and that Gamingtech
supply the Software only as described herein. The payment by the Master
Licensee or CM Sub Licensees of Royalties as provided in Clause 5.3 shall
not, and the parties hereto confirm and agree that the same shall not
constitute any nor be construed as any participation in the business of
the Master Licensee or the Business any CM Sub Licensee by Gamingtech.
16.11. Force Majeure: Notwithstanding anything to the contrary contained in this
Agreement, the failure or delay in performance by either Gamingtech or
the Master Licensee, other than in respect of the performance of payment
obligations, shall be excused to the extent it is caused by an event
beyond the party's control, provided that the party prevented from or
delayed in rendering performance notifies the other party immediately and
in detail of the commencement and nature of such cause, and provided
further that such party uses its best efforts to render performance in a
timely manner, utilizing to such ends all resources reasonably required
in the circumstances. If such event continues beyond sixty (60) days,
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either party may terminate this Agreement. Without limiting the generality
of the foregoing, the failure of a CM Sub Licensee to make payments to the
Master Licensee pursuant to the terms of the CM Sub License Agreement,
shall not constitute a force majeure with respect to the Master Licensee's
obligations to make payments to Gamingtech as provided herein.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first written above.
GAMINGTECH CORPORATION
Per: /s/ Richard Latham
--------------------------------------
Richard Latham, President
CASIONO MARKETING S.A.
Per: /s/ Victor Ramirez
--------------------------------------
Victor Ramirez
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SCHEDULE "A"
The software is a Java based virtual casino identified as a package called
CasinoCasino which resides on a Gamingtech server located in Belize City,
Belize.
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SCHEDULE "B "
End User License Agreement
A. ELIGIBILITY:
1. The casino is restricted to individuals of legal age of majority only. You
cannot play under any circumstances if you are not at least eighteen years of
age. Minors may not play. Participation in the activities and games of the
Internet casino is open only to the residents of those jurisdictions where such
participation is legal and not prohibited. Participation in the activities and
the games of the Internet casino is void wherever prohibited by law.
2. Player understands that the game is for entertainment value only. Player
understands and acknowledges that no purchase is necessary or required to play
the games. If a player wishes to play without betting money, he/she may do so,
on the free site only.
3. Employees of the Internet casino, the company, its licensees, distributors,
wholesalers, affiliates, subsidiaries, advertising, promotion or other agencies,
media partners, retailers and members of the immediate families of each are not
eligible to participate in the games.
B. OTHER CONDITIONS
Player is not required to participate in the Game and such participation, if
elected by Player, is at Players sole option, discretion and risk. Materials of
the game (whether electronically obtained or obtained by other means) are
automatically void if counterfeited, mutilated, forged, altered or tampered with
in any way, if illegal, mechanically or electronically reproduced, obtained
outside authorized legitimate channels or if they contain printing, production,
typographical, mechanical, electronic or any other errors. Any and all materials
submitted for prize claims become the property of the company and will not be
returned. The company is not responsible for lost, late, illegal, incomplete,
damaged, mutilated, misdirected, or postage due mail, requests, prize claims or
entries. Liability for materials of the game containing any error is limited to
replacement. Errors due to the computer hardware and software is the sole
responsibility of the of the end user, not the company. No refunds shall be
given. Taxes, if any, on any prize is players sole responsibility. By accepting
prize and/or winnings, Player consents to use his/her name for advertising and
promotional purposes without additional compensation except where prohibited by
law. Player, by acceptance of prize, acknowledges compliance with all rules
herein. The company makes no representations or warranties, implicit or
explicit, as to the legal right for player to participate in the game nor shall
any of the companies employees, licensees, distributors, wholesalers,
affiliates, subsidiaries, advertising, promotion or other agencies, media
partners, agents or retailers have the authority to make any such
representations or warranties. The company shall not be required to maintain
user names or passwords and if player misplaces, forgets, loses, or is otherwise
unable to enter the Internet casino because of anything other than company
error, if a player should give away, tell, share or lose their account number
and password, the Internet casino will not be responsible and will not be held
liable for any claims regarding that account. The terms and conditions contained
herein may be modified and/or amended only by the company posting such
modification and/or amendments in the Terms and Conditions section of the
website. The company shall not be liable for computer malfunctions nor attempts
by player to participate in the game by methods, means or ways not intended by
the company. The company reserves the right to cancel players account for any
reason and issue any
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balance in players account at the time of such cancellation. The terms and
conditions contained herein represents the complete, final and exclusive
agreement between the player and the company.
C. PLAYER AGREES AND BECOMES A PARTY TO THE RULES
By entering the website, opening an account at the website, playing the casino,
use and reuse of such an account, participation in the game, or acceptance of
any prize, player hereby represents, warrants and certifies all of the
following:
1. Player fully understands, agrees to, becomes a party to and shall abide by
all rules, regulations, terms and conditions contained herein and as such rules,
regulations, terms and conditions may change from time to time.
2. Player is over the age of legal majority, i.e. player is an "adult" as that
term is legally defined in player's jurisdiction
3. Player shall not allow any other person or third party including, without
limitation, any minor, to use or reuse players account, access and/or use any
materials or information from the website, accept any prize, or participate in
any games.
4. Player has the full, complete and unrestricted legal right to participate in
the game and players participation in the game is not prohibited in the players
jurisdiction.
5. Player does not find the game or the website to be offensive, objectionable,
unfair, nor indecent.
6. Player understands that the game is for entertainment value only. Player
understands and acknowledges that no purchase is necessary or required to play
the game. If a player wishes to play without betting money, he/she may do so, on
the free site only.
7. Player shall hold the company, its employees, officers, director, licensees,
distributors, wholesalers, affiliates, subsidiaries, advertising, promotion or
other agencies, media partners, agents and retailers harmless and shall
indemnify the same form any and all cost, expenses, liabilities and damages
whatsoever that may arise as a result of the players:
(i) entry, use, or reuse of the website
(1i) use of any materials at the website
(iii) entry, use or reuse of the casino server (iv) participation in the game,
or
(v) the acceptance of any prize
8. Player understands that the terms Internet casino are the trademarks, service
marks, and trade names of the companies and player obtains no rights to such
terms, nor any other terms, graphics, text, concepts or methodologies, using the
website and the material contained therein.
9. Players interest in the game and the website is personal, and not
professional. Players entering the casino is solely for the players own personal
entertainment and any other entrance, access, use or reuse of the casino or the
website is strictly prohibited.
10. Player shall periodically review at a rate not less than once monthly these
terms and conditions of the Internet casino posted at the website.
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11. Players shall not have any cause or night of action for damages or otherwise
against Gamingtech Corporation, the owner of the gaming software or any of their
associates, affiliates, parent or subsidiary corporations and the Player hereby
expressly waives any and all such causes or rights of action.
12. Players shall not participate in the games, open, use or reuse an account,
enter the website, or the casino, nor accept any prize if player does not fully
understand, agree to, become a party to, and shall abide by, without exception,
all rules, regulations, terms and conditions contained herein and as such rules,
regulations, terms and conditions may change from time to time.
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SCHEDULE
Description of Casino Casino Software
Casino Casino is a JAVA based Internet casino software package that allows
customers to set up and operate an Internet based casino site subject to proper
licensing, hardware and bandwidth to be supplied by the customer. Casino Casino
offers the following games: Blackjack, Camibean Poker, Baccarat, Pai Gow Poker,
Slots (8 different types), Roulette, Craps, and Video Poker (4 different types).
Casino Casino was designed to operate over the Internet with no requirement for
downloading of any software in advance. This is made possible by using the JAVA
development platform, which will operate on any personal computer that is
connected to the Internet. The Casino Casino software consists of three main
daemons or servers, namely Games, Commerce and BankFurther descriptions of each
are contained herein. All three daemons are thread based, any new requests start
a new thread. Once the service is finished the thread is terminated. Since the
lifetime of the thread is minimal the overhead of a large number of players is
minimal. The Software is designed for optional performance with the Internet
Explorer 4.0 or higher browser.
1. The gaming engine is responsible for running the random number generator
(RGN) used in all the games. The advantage of this central engine is that as new
games are developed they can be plugged into this central engine, with out the
need for a complete re-write. The number generator is based on the "lagged
Fibonacci method". The initial seed is also randomly generated using standard
Java calls to obtain a number between 0 and 232 (4 billion).This action occurs
on the server side to which the player has no access. If a player disconnects
during a game, i.e.: blackjack, then the player is awarded a loss.
2. The database engine keeps track of all the players and gaming transactions
and adheres to the RDBMS & object orientated computing environment. All
transactions are tracked by administrative software that is based on Microsoft
SQL. Player information is available to the casino operator, online using a
loaded java applet, that operates in the Microsoft Internet Browser. Operators
can generate certain reports on the status of players, actual bank transactions
with flags and the status of the games. The operator is provided access to this
database by entering a username and password to ensure security. Multiple on-
line reports can be generated simultaneously because each query will launch a
new Internet window. Operators can be on-line and monitor any or all players in
real time by refreshing their view windows as often as required and some of the
reports that are required to be monitored continuously are set to auto-refresh
ever one minute.
Operators can also add or remove players from the site, issue credits or debits
and check the overall performance of all the games and players per game by date,
historically, demographically or by the various modes of payment.
3. The commerce engine is responsible for interfacing to the credit card
processor. The player must fill out an on-line application provided by the
Casino Casino software package that includes all relevant address and contact
information. The player is instructed to select a password. After the form is
completed the player is issued a username by the Commerce software which
forwards the details to the auto-email engine which sends out a "welcome to
casino" email message with username and password. The player logs in through the
browser using the username and password. The player is now presented with the
option to register a credit card from which funds will be debited to play the
casino games. The credit card number and expiry date as well as the customer
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information are stored together on the Commerce server in a SQL database format.
The player then can deposit funds into his/her account to use at any or all of
the games offered by the Casino Casino software. At this point the software will
forward the customer information and the credit card information to an online
credit card processing facility ( for example Secure Bank.com) This third party
is responsible for validating the credit card and customer information through a
"scrubbing" process. If the customer is in good standing a message will be sent
back to the Commerce server and the customer will be notified that the funds are
available and can begin gaming immediately. If the customer does not pass the
credit test, he is notified that the transaction has failed and he is unable to
proceed.
Unless configuration can be completed remotely, we require the client to ship
the server to our office and we can perform the initial set up. Once the server
is returned and is on-line our staff need to have continuous access through PC
Anywhere to remotely log onto the server to perform any maintenance, repairs or
upgrades as determined necessary. Adequate bandwidth or connection speed of at
least 256k is required for proper operation and maintenance of the Casino Casino
Software which will be provided by the casino operators.
Security of the games server is the responsibility of the Master Licensee or a
CM Sub Licensee. We require that the Master Licensee or a CM Sub Licensee
implement Secure Socket Layer ("SSL") on the server on which the Software is
installed. Gamingtech will assist the Master Licensee with the installation of
SSL at no cost.
The operating parameters for each game are as follows:
Blackjack: There are 8 decks in the dealing shoe. The shoe is reshuffled after
each hand. This adheres to rules including, double down on any hand, four split
any same cards, double down on splits and insurance. There is no surrender.
Carribean Poker: This is a single deck shoe and is re-shuffled after every hand.
The games uses the standard rules for payout.
Slots: The payout of the slots is governed by the number of graphic icons on the
wheels and the use of the RNG. There are three wheels and the RNG is used to
stop each of the wheels at different locations. Adjustment of the odds is
hardcoded.
Video Poker: Video poker is a single deck deal and is re-shuffled after every
play. The games use the rules for payout, as posted on each of the machines.
Players may throw away the whole hand if they wish.
Roulette: The roulette uses the RNG for each wheel spin. As long as the player
stays on the game the game will list, on the left side of the display window, a
history of the numbers that have been generated by the game. The list is 15
numbers long. The 16' number will be displayed at the top of the list and the I"
number will be dropped from the list.
Craps: The RNG is used for each roll of the dice. The payout is set as per the
standard rules of Craps.
Baccarat: There are eight decks in the dealing shoe. The object of the game is
to wager that either the player's hand will win, the banker's hand will win, or
that the game will result in a tie. If the
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player wins by betting on the banker, the bank will receive a 5% commission on
the bet. The odds for the tie are 8 to 1. The shoe is reshuffled after each
hand.
Pai Gow Poker: Pai Gow Poker is played with a deck of 53 cards, a standard deck
plus one wild joker. The goal as a player is to beat both of the dealer's hands.
If the player only beats one of the dealer's two hands, then the game results in
a tie. Each time the player wins, the bank gets a 5% commission on the amount
bet. The rules and odds are based on standard rules.
The Master Licensee and each CM Sub Licensee shall assume all responsibility for
any and all security issues relating to the use of the Software in connection
with the Business. Any adjustments to the home page, graphics, etc, are the
responsibility of the casino operator.
Gamingtech's warranty shall only be applicable where the Master Licensee or CM
Sub Licensee has not altered the system on which the Software is operating (
hardware, software and connectivity), from the configuration originally
installed by Gamingtech and implemented by the server operator at the time the
Business is commenced. Any software installed by the casino operator must be
approved by Gamingtech. Gamingtech will not be responsible for the Master
Licensee's server or any of the CM Sub Licensee's servers or their data, at any
time.
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SCHEDULE D
SOFTWARE SUB LICENSE AGREEMENT
This Agreement made as of the - day of ___
BETWEEN:
_________________________________ a body corporate with offices at
(the "Licensee")
OF THE FIRST PART
AND
CASINO MARKETING S.A. a body corporate with offices at
San Jose, Costa Rica ("Licensor").
OF THE SECOND PART
WHEREAS Licensor is in the gaming software sub licensing business.
AND WHEREAS Licensor holds the certain rights to sub license, certain
interactive gaming software under a Master Sub License Agreement and the
Licensee desires to license the object code for such software and Licensor is
willing to grant the Licensee a non exclusive license to the object code for
such software subject to the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual promises, covenants and
obligations contained herein, the parties agree as follows:
1. INTERPRETATION
Words and phrases used herein have the following meaning:
1.1.1. "Agreement" means this Software Sub License Agreement, including
Schedules "A", "B" and "C" attached hereto.
1.1.2. "Business" means the operation and management of an online Internet
entertainment and game playing website utilizing the Software.
1.1.3. "Client Software" means the user interface portion of the Software.
1.1.4 "Dollar" or "$" means United States dollars.
1.1.5. "Electronic Distribution" means the electronic delivery of computer
software using on-line services, the Internet, phone lines, cable
systems, servers, satellite or other public or private access network or
electronic communication mediums.
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1.1.6. "End User" means an individual whom the Licensee permits to access and
utilize, but not to further distribute, the Software.
1.1.7. "Gross Revenues" means gross income which is received by the Licensee or
any affiliate or associate of the Licensee in connection with the
Business utilizing the Software, which shall be calculated as the total
dollars wagered on all games less all payoffs, but before any operating,
administrative or other expenses, governmental sales, excises pr other
taxes or tariffs imposed on the use of the Software. For the purposes of
this Agreement Gross Revenues shall not include any negative amount.
Where Gross Revenues for a period result in a negative number, Gross
Revenues for that period shall be deemed to be zero.
1.1.8. "License Fee" means the monthly payments to be made by the Licensee to
the Licensor pursuant to Clause 5.2 hereof.
1.1.9. "Software" means the object code versions of the computer software
described in Schedule "A" herein.
1.1.10. "Set Up Fee" means the fee payable to Licensor pursuant to Clause 5.1
hereof
1.2. Currency
Unless otherwise indicated, all dollar amounts referred to in this
Agreement are expressed in United States Dollars.
1.3. Sections and Headings
The division of this Agreement into sections and the insertion of
headings are for convenience of reference only and shall not affect the
interpretation of this Agreement. Unless otherwise indicated, any
reference in this Agreement to a section or a Schedule refers to the
specified section of or Schedule to this Agreement.
1.4. Number, Gender and Persons
In this Agreement, words importing the singular number only shall
include the plural and vice versa, words importing gender shall include
all genders and words importing persons shall include individuals,
corporations, partnerships, associations, trusts, unincorporated
organizations, governmental bodies and other legal or business entities.
1.5. Accounting Principles
Any reference in this Agreement to generally accepted accounting
principles refers to generally accepted accounting principles as
approved from time to time by the Canadian Institute of Chartered
Accountants or any successor institute. This reference shall not be
construed so as to imply any attornment to Canadian jurisdiction or
laws.
1.6. Time of Essence
Time shall be of the essence of this Agreement.
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1.7 Severability
If any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect, such
determination shall not impair or affect the validity, legality or
enforceability of the remaining provisions hereof, and each provision is
hereby declared to be separate, severable and distinct.
1.8. Successors and Assigns
This Agreement shall enure to the benefit of and shall be binding on and
enforceable by the parties and, where the context so permits, their
respective successors and permitted assigns.
1.9. Amendment and Waivers
No amendment or waiver of any provision of this Agreement shall be binding
on any party unless consented to in writing by such party. No waiver of
any provision of this Agreement shall constitute a waiver of any other
provision, nor shall any waiver constitute a continuing waiver unless
otherwise expressly provided.
1.10 Schedules
The following Schedules are attached to and form part of this Agreement:
Schedule A Software
Schedule B End User License Agreement
Schedule C Description of Software
2. GRANT OF LICENSE
2.1. Sub-License: Subject to the terms and conditions hereof Licensor hereby
grants to the Licensee and the Licensee accepts from Licensor: (1) a
worldwide, non-exclusive, nontransferable license to use the Software only
in connection with the Business and to transmit the Client Software only
in object code form to End Users by means of Electronic Distribution; and
(11) a worldwide, non-exclusive, non-transferable license to use and to
grant to End Users the right to use the Client Software in object code
form, only while connected to a server on which the server component of
the Software is installed.
2.2 End User License Agreement: The Licensee shall display to End Users an End
User License Agreement ("EULA") prior to download of the Client Software
by End User. Such EULA shall contain provisions which exclude the
Licensor, the owner of the Software and their associates, affiliates,
parent and subsidiary corporations from all liabilities related to the End
Users use of the Client Software, and in any event shall contain
provisions substantially similar to those contained in Schedule "B"
hereto. The EULA shall be provided in a format that the End User may
download onto End User's hard disk. The Licensee shall require all End
Users to either accept or reject the terms and conditions of the EULA by
means of a point and click mechanism or other mechanism acceptable to
Licensor prior to the download of the Client Software and, in the event
End User rejects the EULA, End User shall not be permitted to download the
Client Software. The Licensee agrees that the mechanism used
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by the Licensee to require End Users to accept or reject the EULA shall be
in a form which will record and store all End Users acceptance of the EULA
for future reference.
2.3. Restrictions: The Licensee shall not, and shall not authorize any third
party to, reverse engineer, decompile or disassemble the Software or to
attempt to do the same. If the Licensee becomes aware of the source code
of the Software it shall not make use of or disclose the same to any
party.
2.4. No Further Sub-License: The Licensee shall have no right to sub-license or
otherwise make available the rights granted to the Licensee in Clause 2.1
to any third party (related or otherwise) and such rights shall only be
used by the Licensee in connection with its operation of the Business
which shall be comprised of the installation of the Software on one server
and the maintenance of one data base only.
3. GOVERNMENT APPROVALS
3.1 The Licensee warrants and represents that it has or will have obtained
prior to commencing the Business, all required government approvals and
permits in order to use the Software in its Business and to operate its
Business, including an Internet gaming license as required, and that it
will maintain such approval and permits throughout the term of this
Agreement and obtain any government approvals and permits that
subsequently become required during the term of this Agreement or any
extensions thereof
3.2. The Licensee shall take such actions as it deems necessary in order to
prohibit participation in the activities and games of the Software where
prohibited by law.
OWNERSHIP
4.1. Software: Except for the limited rights granted to the Licensee hereunder,
Gamingtech Corporation retains all right, title and interest, including
intellectual property rights, in and to the Software.
4.2. Proprietary Rights Notices: The Licensee shall not remove any copyright or
other proprietary rights notices contained within the Software.
PAYMENT
5.1. Set Up Fee: In consideration of the rights granted by Licensor to the
Licensee hereunder, the Licensee shall pay Licensor as the initial Set Up
Fee, the sum of $ _____ upon execution of this Agreement and shall pay the
Licensor monthly License Fees as set forth in Clause 5.2. Licensee shall
acquire an appropriate server for installation of the Software and shall
acquire all necessary third party software, including, without limiting
the generality of the foregoing, the following third party software:
Crystal Reports 7.0
PC Anywhere
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MSSQL 6.5 or 7.0
Microsoft NT Server with SP4
5.2. License Fees: As further consideration of the rights granted by Licensor
to the Licensee hereunder, the Licensee shall pay to the Licensor monthly
License Fees calculated as ! % of Gross Revenue for the entire ten-n of
this Agreement and any extensions thereof
5.3. Payment: The Licensee shall pay License Fees to the Licensor under Clause
5.2 on a monthly basis commencing at the end of the first month after the
Licensee commences the Business. License Fees shall be calculated monthly
and paid within fifteen (15) days of the end of each month and the
Licensee shall include, with each payment of License Fees, a report
specifying the Gross Revenue earned during the period. Any net loss or
negative revenues in a particular month shall be treated as zero Gross
Revenues for the month and there is no carry forward of such amounts.
5.4. Website: The Licensee shall be responsible for all website design,
construction, maintenance and all costs associated therewith.
5.5. Server: The Licensee shall be responsible for the proper configuration,
custody, maintenance and control of the server upon which the Software is
installed and in respect of all third party software installed thereon.
5.6. Taxes: The Licensee shall be responsible for paying all use, sales or
value added taxes, duties or governmental charges, whether presently in
force or which come into force in the future, related to the deliveries
and payments hereunder.
5.7. Records: The Licensee will maintain, in accordance with generally accepted
accounting principles complete and accurate books and records in respect
of its operation of the Business and the Gross Revenue and other amounts
received in connection therewith and all License Fees due or paid
hereunder.
5.8. Audit: The Licensor shall have the right, on reasonable notice to the
Licensee, no more often than once in any twelve (12) month period, to
appoint an independent third party to examine the Licensee's books and
records, during regular business hours, in order to verify the Licensee's
compliance with the terms of this Agreement. Any such audit shall be at
the expense of the party initiating the audit unless the audit reveals an
underpayment of greater than five (5%) percent in which case the audit
shall be at the expense of the party initiating the audit. The Licensee
shall forthwith pay to the Licensor, the amount of any deficiency
identified by the audit.
6. SUPPORT
6.1. Upgrades: Provided that the Licensee is not then in default hereunder,
during the term of this Agreement Licensor shall provide certain upgrades
to the Software, designated as such by Licensor, to the Licensee at no
cost. All upgrades to the Software shall be considered Software for the
purposes of this Agreement. Upgrades to the Software shall consist of new
games and language localization, as designated as such from time to time
by Licensor.
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6.2. Other Services: If services beyond Licensor's warranty obligations are
requested by the Licensee and if Licensor elects to provide such service,
the Licensee shall be required to pay additional fees for such services on
the basis of the applicable rates then in effect for Licensor, but
Licensor shall be entitled to terminate such service at any time, without
notice. Any work performed outside of normal business hours shall be
charged at the applicable overtime rates.
6.3. Responsibility for Toll Charges: For any of the services referred to in
sub-paragraph 6.2 it shall be the Licensee's responsibility to pay for or
reimburse Licensor for any toll charges incurred in order to respond to
inquiries or to obtain access to the particular system by telephone.
6.4. Responsibility for Payment: The Licensee shall be invoiced the amounts
calculated under sub-paragraph 6.2 at the end of the month in which
services were provided. The Licensee shall be required to pay such
invoices within thirty (30) days following receipt failing which interest
shall accrue and be payable thereon at the rate of twenty-four (24%) per
cent per annum.
7. LICENSOR'S WARRANTIES, REPRESENTATIONS AND COVENANTS
Licensor warrants, represents and covenants to the Licensee that:
7.1. Capacity: It has the necessary capacity to enter into this Agreement.
7.2. No Infringement: To the best of its knowledge, information and belief, the
sub-license of the Software to the Licensee as contemplated herein will
not infringe upon any patents or copyrights of any third party.
7.3. Program Error: Licensor warrants that if program errors (defects in the
Software which prevent substantial conformance to the Software
Specifications set out in Schedule "C" hereto) occur during the term of
this Agreement then, provided that:
i. the Licensee provides prompt notice to Licensor of such program
error;
ii the Licensee provides a full and complete disclosure of the program
error and any input or output necessary to assess the same;
iii. this sub-license remains in effect and the Licensee is not then in
default hereunder;
iv. the Licensee allows Licensor or any third parties identified by the
Licensor, access to the Software via the Internet, with adequate
bandwidth as determined by Licensor,
v. at any and all times and from such place as Licensor may designate
reasonably from time to time;
vi. the Software or the server on which the Software was originally
installed has not been modified by the Licensee or any third party;
and
vii. provided the program error can be reproduced on Licensor's current
Software.
Licensor will use reasonable efforts to correct such errors within 60 days
following receipt of notice from the Licensee of such defects. Licensor's
obligation to correct a program error is specifically conditional on the
satisfaction of all conditions described in Sub-Clause 7.3(i) through
7.3(vi). If the parties hereto disagree as to whether a program error is
Licensor's
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responsibility hereunder, it shall be the Licensee's obligation to
demonstrate and document the program error in the Software. The Licensee
acknowledges that its only remedy available in relation to the occurrence
of a program error shall be to require Licensor to use reasonable efforts
to correct the same and that neither Licensor nor its associates,
affiliates, parent or subsidiary corporations shall be liable for any
damages resulting from the occurrence of a program error however caused,
subject to Section 10.
7.4. Upgrades: During the term of this Agreement Licensor shall provide the
Licensee with upgrades as provided in Clause 6.2. As a result, Licensor's
warranty obligations hereunder are contingent on the Licensee being able
to reproduce the error conditions on Licensor's current Software. If the
error conditions shall not be so reproduced, the error conditions shall
not be considered to be errors within the Software and therefore Licensor
shall not be required to perform further services in relation to the error
conditions stated in Clause 7.3.
7.5. Backup Copy: The Licensee agrees to maintain a current backup copy of the
Software and to make the same available to Licensor at Licensor's request.
7.6. Non-Warranty Items: Examples of service not covered by Licensor's warranty
include, but are not limited to:
i. service required due to failure of hardware;
ii. service required due to unauthorized modification to the Software;
iii. service required due to improper installation of Software, if the
Software has not been installed by Licensor;
iv. interference of third party software, installed on the server, on
the functionality of the software;
v. failure of software other than the Software as defined hereunder;
vi. force majeure;
vii. default or negligence of the Licensee;
viii. improper use or misuse of the Software or the hardware; and
ix. providing operating services, accessories or supplies.
7.7. Limitation: EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT THE SOFTWARE IS
PROVIDED AND LICENSED "AS IS" AND THERE ARE NO WARRANTIES, REPRESENTATIONS
OR CONDITIONS, EXPRESSED OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE,
OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE, COURSE OF PERFORMANCE
OR SERVICE PROVIDED HEREUNDER OR IN CONNECTION HEREWITH BY THE LICENSOR OR
ANY THIRD PARTY. EXCEPT AS EXPRESSLY PROVIDED HEREIN LICENSOR DISCLAIMS
ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABLE QUALITY, NON-
INFRINGEMENT, MERCHANTABILITY, DURABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT
LIMITED TO STATEMENTS REGARDING PERFORMANCE OF THE SOFTWARE, WHICH IS NOT
CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY LICENSOR.
7.8. No Variation: NO AGREEMENTS VARYING OR EXTENDING THE ABOVE WARRANTY OR
LIMITATIONS WILL BE BINDING ON THE LICENSOR OR ANY THIRD PARTY UNLESS IN
WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF LICENSOR
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8. THE LICENSEE'S WARRA TIES, REPRESENTATIONS AND COVENANTS
The Licensee warrants, represents and covenants to Licensor as follows and
acknowledges that Licensor is relying on such warranties, representations
and covenants in entering into this Agreement and the transactions
contemplated in this Agreement:
8.1. Capacity: The Licensee has the necessary capacity to enter into this
Agreement and shall use the Software only in accordance with in compliance
with the laws of the jurisdiction in which the Business in conducted and in
accordance with generally accepted gaming industry standards and practices.
8.2. Unauthorized Use: Licensee will not permit any third party other than an
End User, to use the Software for any purpose.
9. INFRINGEMENT
9.1. Defence and Settlement: If notified promptly and in writing of any action
(and all prior related claims) brought against the Licensee alleging that
the Licensee's use of the Software under this Agreement infringes any valid
Canadian or United States patent or copyright, Licensor may, subject as
provided below, defend and settle that action at its expense and may,
subject as provided below, pay the costs and damages of any type finally
awarded against the Licensee in the action, but is not obligated to do so,
and provided that (1) Licensor shall have sole control of the defense of
any such action and all negotiations for its settlement or compromise; and
(ii) the Licensee and where applicable those for whom the Licensee is
responsible, cooperates fully with Licensor in its defense of the action.
If the Licensee receives notice of a valid claim or demand regarding
infringement, or if the use of the Software shall be prevented by
injunction, Licensor shall, at its option and expense either (1) procure
for the Licensee the right to continued use of the Software as provided
hereunder, (ii)modify the Software so that it is no longer infringing,
(110replace the Software with computer software of equal capability, or
(iv) terminate this Agreement as to the infringing Software; provided that
Licensor agrees that it will exercise any of the options (1) to (111) prior
to exercising option (iv) if, in Licensor's opinion, such options are
commercially feasible to Licensor. The foregoing indemnification does not
extend to any claim arising out of a modification to the Software by any
party other than Licensor to the extent such claim would not have arisen
had such modification not been made, any combination of the Software with
any other software or hardware to the extent such claim would not have
arisen had such combination not been made, or the use or distribution of
the Software other than as permitted under this Agreement and the Licensee
shall indemnify and hold Licensor harmless from any infringement arising
therefrom. THE FOREGOING STATES THE ENTIRE LIABILITY AND OBLIGATIONS OF
LICENSOR AND THE EXCLUSIVE REMEDY OF THE LICENSEE WITH RESPECT TO ANY
ALLEGED INTELLECTUAL PROPERTY INFRINGEMENT.
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10. LIMITATION OF LIABILITY
10.1. Limitation of Liability: IN No EVENT WILL GAMINGTECH CORPORATION, THE
LICENSOR OR ANY ASSOCIATE, AFFILIATE, PARENT OR SUBSIDIARY CORPORATION OF
EITHER OF THEM, BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF
USE, DATA OR PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
OR THE USE OR PERFORMANCE OF THE SOFTWARE, OR OTHER Licensor PROVIDED
MATERIAL WHETHER IN AN ACTION IN CONTRACT OR TORT INCLUDING BUT NOT
LIMITED TO NEGLIGENCE AND WHETHER OR NOT GAMINGTECH CORPORATION OR THE
LICENSOR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2. Aggregate Liability: Without limiting the general exclusion of liability
as provided in Clause 10.1, the liability of the Licensor, the owner of
the Software and any of their associates, affiliates, parent or subsidiary
corporations to the Licensee whether for negligence, breach of contact,
misrepresentation or otherwise shall in respect of a single occurrence or
a series of occurrences shall in no circumstances exceed the cash payments
actually made to Licensor as the Set up Fee under Clause 5.1 of this
Agreement.
11. THE LICENSEE INDEMNIFICATION
11.1. Indemnification: The Licensee agrees to indemnity and save the Licensor,
the owner of the Software and their associates, affiliates, parent or
subsidiary corporations harmless from and against any and all claims,
demands, costs and liabilities (including all reasonable legal and
attorney fees and expenses) of any kind whatsoever, arising directly or
indirectly out of claims brought by End Users or any third party, and/or
brought under any law, including without limitation any government
department or agency as a result of (i) the Licensee's combination or use
of the Software with any other software, hardware or other material, (ii)
the Licensee's transmission of the Client Software or the use of the
Client Software by an End User, (111) breach of Section 8 warranties; (iv)
the Licensee's operation and management of the Business; or (v) any act or
omission by the Licensee regarding the use of the Software except in
accordance with Section 2.
12. CONFIDENTIALITY
12.1. Proprietary Information: Documentation and information (including
electronically, orally or visually disclosed information) are confidential
and "Proprietary Information" for the purposes of this Section 12 if (a)
it is designated as confidential or proprietary, by letter, stamp or
legend (b) it would be apparent to a reasonable person, familiar with the
disclosing party's business or the industry in which it operates, that
such information is of a confidential or proprietary nature, or the
disclosing party, within ten (10) days of a disclosure, indicates to the
receiving party that such disclosure is confidential. Proprietary
Information shall not include information defined as Proprietary
Information above which the receiving party can conclusively establish
/(1)/ was in the possession of the receiving party at the time of
disclosure; (11) prior to or after the time of disclosure becomes part of
the public domain without the act or omission of the party to whom it was
disclosed; (111) is disclosed to the
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receiving party by a third party under no legal obligation to maintain the
confidentiality of such information; or (iv) was independently developed
by the receiving party. All such Proprietary Information shall be treated
confidentially by the receiving party and its employees, contractors and
agents and shall not be disclosed by the receiving party without the
disclosing party's prior written consent. However, the receiving party may
disclose Proprietary Information of the disclosing party in accordance
with Judicial or other governmental order, provided that receiving party
shall give the disclosing party reasonable notice prior to such disclosure
and shall comply with any applicable protective order or equivalent.
12.2 Treatment of Proprietary Information: Neither party shall in any way
duplicate all nor any part of the other party's Proprietary Information,
except in accordance with the terms and conditions of this Agreement. Each
party shall have an appropriate agreement with each of its employees,
contractors and agents having access to the other party's Proprietary
Information sufficient to enable that party to comply with all the terms
of this Agreement. Each party agrees to protect the other's Proprietary
Information with the same standard of care and procedures which it uses to
protect its own trade secrets and confidential or proprietary information
of like importance and, in any event, shall adopt or maintain procedures
reasonably calculated to protect such Proprietary Information.
12.3. Further Treatment of Proprietary Information: Each party agrees to hold
the other party's Proprietary Information in trust and confidence for such
party and not to use the same other than as expressly authorized under
this Agreement. Each party agrees not to disclose any such Proprietary
Information without the prior written consent of the other, to anyone
other than that party's employees, contractors and agents who have a need
to know same to carry out the rights granted hereunder.
12.4. Action to Protect: Each party shall promptly report to the other any
actual or suspected violation of the terms of this Section 12, and shall
take all reasonable steps to prevent, control or remedy such violation.
12.5. Equitable Relief: In recognition of the unique and proprietary nature of
the information disclosed by the parties, it is agreed that each party's
remedies for a breach by the other of its obligations under this Section
12 shall be inadequate and the disclosing party shall, in the event of
such breach be entitled to equitable relief, including without limitation,
injunctive relief and specific performance, in addition to any other
remedies provided hereunder or available at law.
12.6 Proprietary Information: For the purposes of this Agreement the Software,
and all upgrades or modifications and all materials related thereto shall
be treated as Proprietary Information of Licensor disclosed to the
Licensee.
13. TERMINATION
13.1. Term: The initial term of this Agreement will be for a period of two (2)
years. Provided that the Licensee is not in default under the terms of
this Agreement at the end of a current two year term and has not been in
default hereunder for a period of sixty (60) or more days, on a cumulative
not consecutive basis, during the current term, the Licensee will have the
option
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of renewing this Agreement 90 days prior to the end of the initial term,
for an additional two (2) year term on the same terms provided herein
except for the Set Up Fee obligations under Clause 5.1 and this Clause
13.1 shall not be applicable to the renewal terms. This Agreement may be
terminated by either party in the event of any material breach by the
other party hereto which continues after thirty (30) days written notice
of said breach (which notice shall, in reasonable detail, specify the
nature of the breach) by the non-defaulting party to the defaulting party.
A material breach shall include, without limitation, any breach of
Sections 2, 3, 4, 5, 8 and 12.
13.2. Effect of Termination: Upon the termination of this Agreement the rights
and licenses granted to the Licensee by Licensor hereunder shall terminate
immediately and the Licensee shall cease all use of the Software and
shall, at the option of Licensor, return to Licensor or destroy all copies
of the Software in the possession of the Licensee and Licensor shall be
entitled to unilaterally take any and all steps or actions they may deem
necessary to enforce this Clause 13.2.
13.3. License Fees: No termination of this Agreement shall release the Licensee
from its obligations to pay Licensor any License Fees which accrued prior
to such termination or which shall accrue after the effective date of such
termination as a result of the Licensee's use of the Software after the
termination of this Agreement, nor shall any termination have the effect
of releasing the Licensee from the provisions of Section 12 which
provisions shall survive the termination of this Agreement.
13.4. Non Payment: Notwithstanding anything contained herein, non payment by the
Licensee of any License Fees provided for herein, at the times specified
herein, shall entitle Gamingtech Corporation and the Licensor to
immediately terminate this Agreement and in such event Gamingtech
Corporation and the Licensor shall be entitled to take any and all such
actions it may deem necessary to prevent the continued use of the
Software.
13.5. Termination of Master License: Notwithstanding any other provision hereof
the Licensee acknowledges that the rights of Licensor to sub license the
Software as provided for herein, is described under the terms of Master
Sub License Agreement made between the Licensor and Gamingtech Corporation
of Belize City, Belize and that a default by the Licensor under the terms
of the Master Sub License Agreement may result in the termination of the
Master Sub License Agreement, which in turn may result in the termination
of this Agreement. In the event of such termination Gamingtech Corporation
is given the right, which right is hereby recognized and confirmed by the
Licensee, to take any and all such steps as Gamingtech Corporation may
determine necessary to prevent the continued use the Software by the
Licensee. In event of the termination of this Agreement by virtue of the
termination of the Master Sub License Agreement, and provided that the
Licensee is not then in default hereunder, the Licensee shall be permitted
to terminate this Agreement and shall be entitled to contact Gamingtech
Corporation directly and negotiate any continued use of the Software on
such terms as may be negotiated, without compensation to the Licensor and
similarly, in such circumstances, Gamingtech Corporation shall be entitled
to contact the Licensee or otherwise negotiate with the Licensee with
respect to the Licensee's continued use of the Software, without
interference by the Licensor or compensation of any nature to the
Licensor.
14. LICENSOR REMEDIES
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14.1. If the Licensee breaches any of its obligations hereunder, the Licensor
shall be entitled to seek equitable relief to protect their interests
herein and in the Software including but not limited to injunctive or
other equitable relief, it being acknowledged by the Licensee that the
Licensor would suffer irreparable harm and that damages do not form an
adequate remedy.
14.2. If the Licensee falls to completely abide by any term, condition or
covenant of this Agreement or otherwise commits a breach of this
Agreement, then Licensor may, at its option, immediately terminate this
Agreement by providing written notice as such to the Licensee.
14.3. If the Licensee becomes insolvent or files a petition in Bankruptcy, has
filed against it an involuntary petition in Bankruptcy or a Receiver is
appointed over the assets of the Licensee, or the Licensee commits an act
of Bankruptcy, then Licensor may, at its option, immediately terminate
this Agreement by written notice as such to the Licensee.
14.4. If this Agreement is terminated in accordance with the provisions hereof
the Set Up Fee as provided for in Clause 5.1 will be deemed to have been
paid for the use of the Software provided during the time it was in the
possession of the Licensee and as a result, in such event, the Licensee
will not be entitled to any refund of the Set Up Fee or any License Fees,
or any portion thereof.
15. NOTICES
15.1 Notices: Any notice required or permitted to be given under the terms of
this Agreement shall be in writing and given by personal delivery or sent
by registered mail, postage prepaid, or by fax, to Casino Marketing S.A.
at 40th Street, 2 d Avenue, Suite 20 8, San Jose, Costa Rica and 1 n the
case of the Licensee at the following address: ________________________.
Either party may change its address for notice by notice to the other
party in the manner prescribed above. Any notice given pursuant to this
Section shall be deemed to have been received on the date actually
received.
16. GENERAL
16.1. Applicable Law: This Agreement shall be governed by and construed in
accordance with the laws of Costa Riac and the parties attorn to the
courts of Costa Rica in respect of the enforcement or interpretation of
this Agreement.
16.2. Survival: The provisions of Sections 4, 5, 9, 10, 11, 12, and 14 shall
survive any termination of this Agreement until expressly waived in
writing by the party for whom they are of benefit or terminated by a
further written agreement of the parties.
16.3. Enforceability: If any provision of this Agreement is declared by a court
of competent jurisdiction to be invalid, illegal or unenforceable, such
provision or part thereof which is necessary to render the provision
valid, legal and enforceable, shall be severed from the agreement and the
other provisions and the remaining part thereof of that provision shall
remain in full force and effect.
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16.4. Further Assurances: The parties agree to do all such things and to
execute such further documents as may reasonably be required to give full
effect to this Agreement.
16.5. Entire Agreement: This Agreement constitutes the entire agreement between
the parties concerning the subject matter hereof and cancels and
supersedes any prior understandings and agreements between the parties
hereto with respect thereto. There are no representations, warranties,
terms, conditions, undertakings or collateral agreements, expressed,
implied or statutory, between the parties other than as expressly set
forth in this Agreement.
16.6. Remedies: The remedies expressly stated in this Agreement shall be in
addition to and not in substitution for those generally available at law
or in equity.
16.7. Waiver: No waiver of any provision of this agreement by a party shall be
enforceable against that party unless it is in writing and signed by an
authorized officer of that party.
16.8. Assignment: Neither party may assign this Agreement nor the rights
granted hereunder without the prior written consent of the other which
consent shall not be unreasonably withheld; provided that either party
may assign this Agreement to a successor corporation in the event of a
merger or other reorganization in which it is not the surviving entity;
and provided further that Licensor may assign all or any part of its
rights under this Agreement to a parent, affiliate or wholly-owned
subsidiary; provided that any such organization is able to perform under
this Agreement and agrees to be bound by the terms hereof.
16.9. Counterparts: This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed to be an original and
all of which together shall constitute one and the same instrument.
16.10. Publicity: Licensee shall not refer to Gamingtech Corporation, the
Licensor nor to this Agreement in public releases or advertising without
securing the prior written approval of Gamingtech Corporation or the
Licensor, as the case may be.
16.11. Independent Contractors: The parties to this Agreement are independent
contractors. No relationships of principal to an agent, master to a
servant, employer to employee, franchiser to franchisee, partner or joint
venturers is established hereby between the parties. Neither party has
the authority to bind the other nor incur any obligation on its behalf.
Licensor shall not take part in, have any control over or participate in
the Business, it being the express intention and understanding of the
parties that the Licensee shall conduct the Business and that Licensor
supply the Software only as described herein. The payment by the Licensee
of License Fees as provided in Clause 5.2 shall not, and the parties
hereto confirm and agree that the same shall not constitute any nor be
construed as any participation in the business of the Licensee by
Licensor.
16.12. Force Majeure: Notwithstanding anything to the contrary contained in this
Agreement, the failure or delay in performance by either Licensor or the
Licensee, other than the performance of payment obligations, shall be
excused to the extent it is caused by an event beyond the party's
control, provided that the party prevented from or delayed in rendering
performance notifies the other party immediately and in detail of the
commencement and nature of such cause, and provided further that such
party uses its best efforts to render performance in a timely manner,
utilizing to such ends all resources reasonably required in
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the circumstances. If such event continues beyond sixty (60) days, either
party may terminate this Agreement.
16.13. Gamingtech: The parties acknowledge that Gamingtech Corporation is not a
party to this Agreement and that there is no privity of contract between
Gamingtech Corporation and the Licensee. The parties at knowledge that
the rights of Gamingtech Corproation as provided for or referred to
herein shall nonetheless be exercisable by Gamingtech Corporation
directly or through the Licensor and any attempt to enforce such rights
directly or indirectly shall be considered lawful and enforceable by the
Licensee.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first above written.
CASINO MARKETING S.A.
Per: ________________________________
________________________________
Per: ________________________________
Name: ________________________________
Title: ________________________________
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SCHEDULE "A"
The software is a Java based virtual casino identified as a package called
CasinoCasino which resides on a Gamingtech Corporation server located at Belize
City, Belize.
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SCHEDULE "B "
End User License Agreement
A. ELIGIBILITY:
1. The casino is restricted to individuals of legal age of majority only. You
cannot play under any circumstances if you are not at least eighteen years of
age. Minors may not play. Participation in the activities and games of the
Internet casino is open only to the residents of those jurisdictions where such
participation is legal and not prohibited. Participation in the activities and
the games of the Internet casino is void wherever prohibited by law.
2. Player understands that the game is for entertainment value only. Player
understands and acknowledges that no purchase is necessary or required to play
the games. If a player wishes to play without betting money, he/she may do so,
on the free site only.
3. Employees of the Internet casino, the company, its licensees, distributors,
wholesalers, affiliates, subsidiaries, advertising, promotion or other agencies,
media partners, retailers and members of the immediate families of each are not
eligible to participate in the games.
B. OTHER CONDITIONS
Player is not required to participate in the Game and such participation, if
elected by Player, is at Players sole option, discretion and risk. Materials of
the game (whether electronically obtained or obtained by other means) are
automatically void if counterfeited, mutilated, forged, altered or tampered with
in any way, if illegal, mechanically or electronically reproduced, obtained
outside authorized legitimate channels or if they contain printing, production,
typographical, mechanical, electronic or any other errors. Any and all materials
submitted for prize claims become the property of the company and will not be
returned. The company is not responsible for lost, late, illegal, incomplete,
damaged, mutilated, misdirected, or postage due mail, requests, prize claims or
entries. Liability for materials of the game containing any error is limited to
replacement. Errors due to the computer hardware and software is the sole
responsibility of the of the end user, not the company. No refunds shall be
given. Taxes, if any, on any prize is players sole responsibility. By accepting
prize and/or winnings, Player consents to use his/her name for advertising and
promotional purposes without additional compensation except where prohibited by
law. Player, by acceptance of prize, acknowledges compliance with all rules
herein. The company makes no representations or warranties, implicit or
explicit, as to the legal right for player to participate in the game nor shall
any of the companies employees, licensees, distributors, wholesalers,
affiliates, subsidiaries, advertising, promotion or other agencies, media
partners, agents or retailers have the authority to make any such
representations or warranties. The company shall not be required to maintain
user names or passwords and if player misplaces, forgets, loses, or is otherwise
unable to enter the Internet casino because of anything other than company
error, if a player should give away, tell, share or lose their account number
and password, the Internet casino will not be responsible and will not be held
liable for any claims regarding that account. The terms and conditions contained
herein may be modified and/or amended only by the company posting such
modification and/or amendments in the Terms and Conditions section of the
website. The company shall not be liable for computer malfunctions nor attempts
by player to participate in the game by methods, means or ways not intended by
the company. The company reserves the right to cancel players account for any
reason and issue any
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balance in players account at the time of such cancellation. The terms and
conditions contained herein represents the complete, final and exclusive
agreement between the player and the company.
C. PLAYER AGREES AND BECOMES A PARTY TO THE RULES
By entering the website, opening an account at the website, playing the casino,
use and reuse of such an account, participation in the game, or acceptance of
any prize, player hereby represents, warrants and certifies all of the
following:
1. Player fully understands, agrees to, becomes a party to and shall abide by
all rules, regulations, terms and conditions contained herein and as such rules,
regulations, terms and conditions may change from time to time.
2. Player is over the age of legal majority, i.e. player is an "adult" as that
term is legally defined in player's jurisdiction
3. Player shall not allow any other person or third party including, without
limitation, any minor, to use or reuse players account, access and/or use any
materials or information from the website, accept any prize, or participate in
any games.
4. Player has the full, complete and unrestricted legal right to participate
in the game and players participation in the game is not prohibited in the
players Jurisdiction.
5. Player does not find the game or the website to be offensive,
objectionable, unfair, nor indecent.
6. Player understands that the game is for entertainment value only. Player
understands and acknowledges that no purchase is necessary or required to play
the game. If a player wishes to play without betting money, he/she may do so, on
the free site only.
7. Player shall hold the company, its employees, officers, director,
licensees, distributors, wholesalers, affiliates, subsidiaries, advertising,
promotion or other agencies, media partners, agents and retailers harmless and
shall indemnify the same form any and all cost, expenses, liabilities and
damages whatsoever that may arise as a result of the players:
(i) entry, use, or reuse of the website
(ii) use of any materials at the website
(iii) entry, use or reuse of the casino server
(iv) participation in the game, or
(v) the acceptance of any prize
8. Player understands that the terms Internet casino are the trademarks,
service marks, and trade names of the companies and player obtains no rights to
such terms, nor any other terms, graphics, text, concepts or methodologies,
using the website and the material contained therein.
9. Players interest in the game and the website is personal, and not
professional. Players entering the casino is solely for the players own personal
entertainment and any other entrance, access, use or reuse of the casino or the
website is strictly prohibited.
10. Player shall periodically review at a rate not less than once monthly these
terms and conditions of the Internet casino posted at the website.
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11. Players shall not have any cause or right of action for damages or
otherwise against Licensor, the owner of the gaming software or any of its
associates, affiliates, parent or subsidiary corporations and the Player hereby
expressly waives any and all such causes or rights of action.
12. Players shall not participate in the games, open, use or reuse an account,
enter the website, or the casino, nor accept any prize if player does not fully
understand, agree to, become a party to, and shall abide by, without exception,
all rules, regulations, terms and conditions contained herein and as such rules,
regulations, terms and conditions may change from time to time.
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SCHEDULE "C"
Description of Casino Casino Software
Casino Casino is a JAVA based Internet casino software package that allows
customers to set up and operate an Internet based casino site subject to proper
licensing, hardware and bandwidth to be supplied by the customer. Casino Casino
offers the following games: Blackjack, Carribean Poker, Slots (4 different
types), Roulette, Craps, and Video Poker (4 different types). Casino Casino was
designed to operate over the Internet with no requirement for downloading of any
software in advance. This is made possible by using the JAVA development
platform, which will operate on any personal computer that is connected to the
Internet. The Casino Casino software consists of three main daemons or servers,
namely Games, Commerce and Bank. Further descriptions of each are contained
herein. All three daemons are thread based, any new requests start a new thread.
Once the service is finished the thread is terminated. Since the lifetime of the
thread is minimal the overhead of a large number of players is minimal. The
Software is designed for optional performance with the Internet Explorer 4.0 or
higher browser. While compatable with other browsers, the Software may display
irregularities using such browsers and will display anomalies if a User is
behind a firewall or proxy server. The JAVA code compiled is most compatible
with IE4.0's ire (JAVA Run time Environment) native to each browser.
1. The gaming engine is responsible for running the random number generator
(RGN) used in all the games. The advantage of this central engine is that as new
games are developed they can be plugged into this central engine, with out the
need for a complete re-write. The number generator is based on the "lagged
Fibonacci method". The initial seed is also randomly generated using standard
Java calls to obtain a number between 0 and 2 32 (-4 billion).This action occurs
on the server side to which the player has no access. If a player disconnects
during a game, ie: blackjack, then the player is awarded a loss.
2. The database engine keeps track of all the players and gaming transactions
and adheres to the RDBMS & object orientated computing environment. All
transactions are tracked by administrative software that is based on Microsoft
SQL. Player information is available to the casino operator, online using a
loaded java applet, that operates in the Microsoft Internet Browser. Operators
can generate certain reports on the status of players, actual bank transactions
with flags and the status of the games. The operator is provided access to this
database by entering a username and password to ensure security. Multiple on-
line reports can be generated simultaneously because each query will launch a
new Internet window. Operators can be on-line and monitor any or all players in
real time by refreshing their view windows as often as required and some of the
reports that are required to be monitored continuously are set to auto-refresh
every one minute.
Operators can also add or remove players from the site, issue credits or debits
and check the overall performance of all the games -and players per game by date
or historically.
3. The commerce engine is responsible for interfacing to the credit card
processor. The player must fill out an on-line application provided by the
Casino Casino software package that includes all relevant address and contact
information. The player is instructed to select a password. After the form is
completed the player is issued a username by the Commerce software which
forwards the details to the auto-email engine which sends out a "welcome to
casino" email message with
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username and password. The player logs in through the browser using the username
and password. The player is now presented with the option to register a credit
card from which funds will be debited to play the casino games. The credit card
number and expiry date as well as the customer information are stored together
on the Commerce server in a SQL database format. The player then can deposit
funds into his/her account to use at any or all of the games offered by the
Casino Casino software. At this point the software will forward the customer
information and the credit card information to an online credit card processing
facility ( for example Secure Bank.com) This third party is responsible for
validating the credit card and customer information through a "scrubbing"
process. If the customer is in good standing a message will be sent back to the
Commerce server and the customer will be notified that the funds are available
and can begin gaming immediately. If the customer does not pass the credit test,
he is notified that the transaction has failed and he is unable to proceed.
Adequate bandwidth or connection speed is required for proper operation and
maintenance of the Casino Casino Software,
The operating parameters for each game are as follows:
Blackjack: There are 8 decks in the dealing shoe. The shoe is reshuffled
approximately 3/4 of the way through but not always at the same place. The RNG
will generate the shuffle location as the deck approaches the 3/4 mark. Also if
the player leaves the game and re-enters a re-shuffle will occur. This adheres
to standard Las Vegas rules including, double down on any hand, split any same
cards, double down on splits and insurance. There is no surrender.
Carribean Poker: This is a single deck shoe and is re-shuffled after every hand.
The games uses the standard Las Vegas rules for payout.
Slots: The payout of the slots is governed by the number of graphic icons on the
wheels and the use of the RNG. There are three wheels and the RNG is used to
stop each of the wheels at different locations. Adjustment of the odds is
hardcoded.
Video Poker: Video poker is a single deck deal and is re-shuffied after every
play. The games use the standard Las Vegas rules for payout, as posted on each
of the machines. Players may throw away the whole hand if they wish.
Roulette: The roulette uses the RNG for each wheel spin. As long as the player
stays on the game the game will list, on the left side of the display window, a
history of the numbers that have been generated by the game. The list is 15
numbers long. The 16th number will be displayed at the top of the list and the
1st number will be dropped from the list. The minimum bet is 5 dollars and the
max bet is 100 dollars.
Craps: The RNG is used for each roll of the dice. The payout is set as per the
rules of Craps, Las Vegas.
The Licensee shall assume all responsibility for any and all security issues
relating to the use of the Software in connection with the Business. Any
adjustments to the home page, graphics, etc, are the responsibility of the
casino operator.
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