DATED 22 FEBRUARY 2005
(1) ZONE4PLAY INC.
(2) XXXXXX.XXX (UK) LIMITED
(3) TWO WAY MEDIA LIMITED
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INTERACTIVE FIXED ODDS
BETTING SERVICES AGREEMENT
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THIS AGREEMENT is made on the 22 day of February 2005
BETWEEN:
(1) ZONE 4 PLAY INC. a company registered under the laws of Delaware and whose
principal place of business is at 000 Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxxx 00000 U.S.A ("Z4P");
(2) XXXXXX.XXX (UK) LIMITED a company registered in England and Wales under
number 4494943 and whose registered office is at 00 Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxx X0 0XX ("Winner"); and
(3) TWO WAY MEDIA LIMITED a company registered in England and Wales under
number 4904168 and whose registered office is at 00 Xxxxxxxx Xxxxxx,
Xxxxxx X0X 0XX ("TWM").
WHEREAS:
(A) Z4P is a provider of client-side game applications and of back-end systems
for the gaming and betting industries. Winner is the holder of a
bookmaker's permit in the UK and the owner of the trade xxxx XXXXXX.XXX
and domain name xxxxxx.xx.xx. TWM is establishing fixed odds betting
services on digital television, the World Wide Web, mobile
telecommunications networks and other digital platforms and wishes to
engage Z4P and Winner to provide client-side game applications,
server-side software capable of managing such Channels and project
management support and technical services for such Channels.
(B) Telewest Limited ("Telewest"), NTL Group Limited ("NTL") and other digital
platform operators deliver to their digital television customers a `walled
garden' product comprising various interactive services delivered in
digital form, including opportunities to search for information and
purchase goods and services from a range of content providers selected by
Telewest, NTL and other digital platform operators. TWM has signed and
secured an agreement with Telewest and NTL to be one of their content
providers of fixed odds betting channels.
(C) On October 12th 2004 Z4P, Winner and TWM entered into an agreement for TWM
to engage Z4P and Winner to provide client-side game applications,
server-side software and project management support and the parties hereby
wish to terminate that agreement and replace it with this agreement.
IT IS HEREBY AGREED AS FOLLOWS:
1. Definitions and Interpretation
1.1. Unless otherwise stated, capitalised words and phrases used in this
Agreement shall have the meanings set out in Schedule 1.
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1.2 The Schedules to this Agreement form part of and are incorporated into
this Agreement and references to Clauses and Schedules shall be to clauses
and schedules of this Agreement. Each of the parties shall comply with
their respective obligations as are set out in the Schedules.
1.3 References to a person shall include an individual, corporation, limited
or unlimited liability company, general or limited partnership, trust,
unincorporated association or any other legal entity.
1.4 Headings in this Agreement are used for convenience only and shall not
affect the construction of this Agreement.
2. Termination of the Original Agreement and Term of this Agreement
2.1 The parties hereby agree that upon the commencement of this Agreement the
Original Agreement shall by mutual consent terminate with immediate
effect.
2.2 Subject to the termination rights in Clause 13, this Agreement shall
commence on the date of signature of this Agreement, and shall continue
thereafter for a period of 3 (three) years (the "Initial Term").
2.3 The Initial Term shall be automatically extended for subsequent periods of
two years, unless the parties give notice of termination of this Agreement
no later than six (6) months before the end of the Initial Term or the end
of each subsequent period of two years thereafter. The Initial Term and
any such extension thereof shall hereinafter be referred to as the "Term".
2.4 Z4P shall use all reasonable endeavours to ensure that the front end and
back end development for which it is responsible under this Agreement
shall be completed to enable the Content and the Services to be launched
no later than 24th January 2005.
2.5 TWM shall use all reasonable endeavours to ensure a customer services
solution, integration and testing is completed to enable the Content to be
launched no later than 24th January 2005.
3. The Content
3.1 Z4P shall at its own cost deliver the Content to TWM in accordance with
Schedule 2 and the Project Plan. TWM, Z4P and Winner shall convene at
least weekly project management conference calls to discuss progress in
relation to the Project Plan.
3.2 Z4P grants to TWM a royalty free licence (with the right to sub-license)
throughout the Term and within the Territory, in accordance with and
subject to the terms and conditions of this Agreement, to:
3.2.1 display, copy, electronically store, use, distribute and download
the Content; and
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3.2.2 reformat the Content to the extent that it is reasonably
necessary for technical reasons so that it can be distributed
in the Territory.
3.3 TWM and Z4P shall use best endeavours to ensure that all of the Content
provided by Z4P complies with all applicable laws, regulations, guidelines
and codes of practice (including, if applicable, those of the Advertising
Standards Authority, the British Codes of Advertising and Sales Promotion
and the Independent Committee for the Supervision of Standards of
Telephone Information Services (ICSTIS), any applicable OFCOM Codes and/or
Regulations and the UK Gaming Board's guidelines in relation to Fixed Odds
Betting services (and any successor body of the UK Gaming Board)). In the
Event that TWM becomes aware that the Content is or has become
non-compliant in accordance with this Clause 3.3, then TWM shall promptly
notify Z4P and Z4P shall have 30 days from the date of TWM's notification
to remedy any such non-compliance.
4. The Services and the Software
4.1 Z4P shall at its own cost provide the Services and the Software to TWM in
accordance with Schedule 3 and the Project Plan.
4.2 TWM and Z4P shall ensure that all of the Services and the Software comply
with all applicable laws, regulations, guidelines and codes of practice
(including, if applicable, those of the Advertising Standards Authority,
the British Codes of Advertising and Sales Promotion and the Independent
Committee for the Supervision of Standards of Telephone Information
Services (ICSTIS), any applicable OFCOM Codes and/or Regulations and the
UK Gaming Board's guidelines in relation to Fixed Odds Betting services
(and any successor body of the UK Gaming Board)). In the Event that TWM
becomes aware that the Services and/or the Software are or have become
non-compliant in accordance with this Clause 4.2, then TWM shall promptly
notify Z4P and Z4P shall have 30 days from the date of TWM's notification
to remedy any such non-compliance.
4.3 Z4P shall grant to TWM a royalty-free licence (with the right to
sub-license) to use the Software throughout the Term and within the
Territory in accordance with the terms and conditions of this Agreement.
4.4 Throughout the term of this agreement Winner shall make available the URLs
xxx.xxxxxx.xx.xx exclusively for the provision of the Permitted Services.
5. Exclusivity
5.1 Z4P shall not provide client side applications (including but not limited
to the Content) and/or server side systems and software (including but not
limited to the Software) by itself and/or to other parties providing Fixed
Odds Services on cable platforms in the Territory for the period of the
Term without the prior written consent of TWM. Subject to Clause 5.5, the
parties further acknowledge that Z4P is in no way restricted from pursuing
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existing and other business ventures relating to Digital Satellite,
Internet and Mobile Cellular applications and solutions, save that either
Z4P or TWM shall not use the Brand and/or any Intellectual Property Rights
jointly owned between any of the parties without the other prior written
consent.
5.2 Winner shall not itself nor authorise third parties to retail in the
Territory, Fixed Odds Services on cable television or on the internet or
license the XXXXXX.XXX trade xxxx and/or the Brand to other Fixed Odds
Services in the Territory, on cable television or the internet for the
period of the Term without the prior written consent of TWM. For the
purposes of this clause 5.2 insofar as it relates to the internet, Fixed
Odds Services shall mean fixed odds betting services that legally may be
provided to remote customers in the United Kingdom at the date of this
Agreement (and for the avoidance of doubt shall not extend to together
with such other betting or gaming services provided to remote customers in
the United Kingdom which from time to time become permissible in
accordance with applicable laws and regulations);
5.3 TWM shall not provide client side applications and/or server side systems
and software to other parties providing Fixed Odds Services on cable
platforms in the Territory than those envisaged in this Agreement without
the prior written consent of Z4P.
5.4 Z4P, Winner and TWM agree to collaborate on new business opportunities in
relation to fixed odds betting and gaming services on other platforms.
5.5 Winner will be TWM's preferred partner to help it build its business and
its brand in broadband, mobile and digital satellite in the UK.
6. Revenue share
6.1 In consideration for Z4P providing the Content, the Software and the
Services, and Winner entering into this Agreement, the parties shall share
Profit and losses in accordance with the provisions set out in Schedule 5.
7. Marketing
7.1 The parties agree to market and promote the Content and the Channels in
accordance with the provisions of Schedule 6.
8. Licences
8.1 Winner, Z4P and TWM shall obtain and shall throughout the Term maintain
and comply with the terms of all consents, licences and clearances which
are necessary in relation to the deliverables that that party provides
for:
8.1.1 the Content to be included in, and provided to Digital Subscribers
as part of any Channel (including but not limited to a bookmaker's
permit); and
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8.1.2 Transactions to be carried out (including the maintenance of betting
accounts, and receipt and fulfilment of all Bets undertaken by way
of Transactions).
9. Intellectual Property Rights
9.1 Z4P will retain ownership in any Intellectual Property Rights it
contributes to enable the Channels to be launched and operated. For the
avoidance of doubt this will include but not be limited to the game
engines, and gaming back-end it contributes in accordance with this
Agreement.
9.2 TWM will retain ownership in any Intellectual Property Rights it
contributes to enable the Channels to be launched and operated. For the
avoidance of doubt this will include but not be limited to the game names
and graphic components it contributes in accordance with this Agreement.
9.3 The Channels shall be branded "WINNER" (the "Brand") unless it is found
that third parties own trade xxxx rights which could or would preclude the
Channels being branded "WINNER". TWM acknowledges ownership by Winner of
the trade xxxx XXXXXX.XXX in the UK under trade xxxx number E1627116 in
class 41. Winner and Z4P undertake (a) not to apply to revoke the
XXXXXX.XXX trade xxxx or object or challenge the use by TWM and/or any of
its licensees or sub-licensees of the Brand; and (b) not to oppose any
application by TWM to register trade marks in relation to the Brand (in
stylised logo form) in the EU. TWM shall not use the trade marks it has
registered or applied for in relation to the Brand in stylised logo form
during the Term (the "Logos") without Winner's prior consent (such consent
not to be unreasonably withheld or delayed) and neither TWM nor Z4P shall
be entitled to use such Logos other than for the purposes envisaged under
this Agreement without the other party's consent (such consent not to be
unreasonably withheld or delayed) either during the Term or after
termination of this Agreement. This section does not in any way undermine
Winner's rights under its trade marks of xxxxxx.xxx and its domain names
xxxxxx.xxx and xxxxxx.xx.xx.
9.4 Winner, shall at TWM's request, allow TWM to operate the Channels under
Winner's bookmaker's permit. Winner will use best endeavours to retain
ownership in its bookmaker's permit throughout the Term.
9.5 Intellectual Property Rights created jointly by Z4P and TWM during the
Term solely for the Channels, such as the client-side applications, will
be held jointly between Z4P and TWM. Z4P and TWM shall be entitled to
license such jointly owned Intellectual Property Rights to third party
with the other party's prior written consent, such consent not to be
unreasonably withheld or delayed.
9.6 Subject always to Clause 10, the database containing details of Digital
Subscribers using the Channels and all associated Transactions history and
generated by the Channels during the Term (the "Database") will be jointly
owned by the Parties. No Party will have the right to contact or market
services to the Digital Subscribers listed in the Database (except TWM for
the purpose of marketing or promoting the Channels), or sell rights to
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access the Database, at any time including after the end of the Term,
without the prior written approval of the other Parties and subject to
compliance with Clause 10.
10. Personal Data
10.1 The parties agree to keep all personal data of Digital Subscribers
strictly confidential and separate from other records and information. The
parties will at all times ensure their own compliance with all the
provisions of Data Protection Legislation applicable to them. The words
'personal data' shall have the meaning attributed thereto by Section 1 of
the Data Protection Xxx 0000. TWM shall notify Z4P if it becomes aware
that Z4P is infringing any of the provisions of the Data Protection
Legislation or any other applicable codes, regulations or guidelines as
described herein.
10.2 Z4P shall:
(a) only act on instructions from TWM regarding the processing of
personal data under this Agreement and ensure that appropriate
technical and organisational measures shall be taken against
unauthorised or unlawful processing of the personal data and against
accidental loss or destruction of, or damage to, the personal data;
(b) comply with any reasonable request made by TWM to ensure compliance
with the measures mentioned in Clause 10.2(a);
(c) take the measures mentioned in Clauses 10.2(a) and 10.2(b) so as to
ensure a level of security appropriate to: (i) the harm that may
result from breach of such measures, and (ii) the nature of the
personal data to be protected; and
(d) take reasonable steps to ensure the reliability of its employees or
sub-contractors who have access to the personal data provided by
TWM.
10.3 For the avoidance of doubt, Z4P agrees that personal data it may have
access to under this Agreement is Confidential Information and it shall
not be entitled to transfer such personal data to any third parties
without the prior written consent of TWM.
10.4 During the Term TWM shall have the right to enter Z4P's premises upon
providing not less than one week written advance notice to Z4P and during
normal business hours in order to inspect and audit at TWM's expense all
records and systems of Z4P once in every 12 month period for the purpose
of verifying Z4P's compliance under this Clause 10 and Clause 14.
10.5 The Standard Contractual Clauses for the transfer of personal data to
third countries under Directive 95/46/EC contained in the Annex to the
Commission Decision of 27 December 2001 are incorporated into this
Agreement with the following changes:
(a) Data Exporter shall mean Two Way Media Limited;
(b) Data Importer shall mean Zone 4 Play, Inc.;
(c) With reference to Clause 9 of the Standard Contractual Clauses, the
Governing Law is English law;
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(d) With reference to Appendix 1 of the Standard Contractual Clauses,
the Data Exporter will allow the Data Importer to upload and store
personal data for back-up for archiving and disaster recovery
purposes in Israel; the personal data transferred concern the
following categories of data subjects: Digital Subscribers using the
Channels; the personal data transferred falls within the following
categories of data: sensitive and non-sensitive personal data; the
personal data transferred will be subject to the following basic
processing activities: back-up for archiving and disaster recovery
purposes.
(e) With reference to Appendix 2 of the Standard Contractual Clauses,
the technical organisation and security measures implemented by the
data importer in accordance with Clauses 4d and 5c of the Standard
Contractual Clauses are as mentioned above in Clause 10.2.
11. Reporting and audit
11.1 For the avoidance of doubt, Digital Subscribers registering shall contract
with TWM in relation to the Content. TWM shall distribute Content Revenues
generated in accordance with Schedule 5. TWM shall use reasonable
endeavours to provide to Z4P and Winner within 5 days after the end of
each calendar month from the launch date of the Channels during the Term a
report (each, a "Monthly Report") detailing the following information:
(i) the total number of Transactions carried out during the relevant
billing period;
(ii) the value of each Transaction;
(iii) the date of each Transaction;
(iv) the Game category of each Transaction;
(v) total Content Revenues;
(vi) the calculation of Profit in respect of the relevant
Transactions (including but not limited to details of all relevant
deductions actually made and/or due); and
(vii) a summary of the status of client accounts used for holding
Digital Subscribers' deposits.
11.2 Upon receipt of the Monthly Report, Z4P and Winner (if it is entitled to a
Profit share) will invoice TWM for their respective Profit share in
accordance with the provisions of Schedule 5. TWM shall pay Z4P and/or
Winner the Profit shares within 10 days of receipt of an invoice from Z4P
and/or Winner in respect thereto.
11.3 During the Term Z4P and/or Winner shall have the right to enter TWM's
premises upon providing not less than one month written advance notice to
TWM and during normal business hours in order to inspect and audit at Z4P
and/or Winner's expense all records and accounts of TWM once in every 6
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month period for the purpose of verifying Monthly Reports delivered and/or
due and the Profit shares paid or payable to Z4P and/or Winner by TWM
under this Agreement.
11.4 In the event that any inspection or audit carried out pursuant to Clause
11.3 reveals that the amount of the Profit shares invoiced by Z4P and
Winner (if applicable) in respect of the period covered by such inspection
or audit is more than 5% lower than the actual amount of the Profit shares
due and payable in respect of the relevant period, then TWM shall
forthwith reimburse the costs incurred by Z4P and/or Winner in respect of
such inspection or audit and TWM shall pay Z4P and/or Winner those sums
owing to Z4P and/or Winner plus interest at the rate of 3% per annum above
Barclays Bank Plc's base rate for the period from the due date to the date
of payment.
12. Confidentiality
12.1 Either party may disclose Confidential Information to such of its
employees, agents and subcontractors to the extent strictly necessary for
each party to perform its obligations set out in this Agreement. Each
party agrees and undertakes that it will, and will procure that its
employees, agents and subcontractors will, keep all Confidential
Information confidential and will not disclose it in whole or in part to
any third party, nor use Confidential Information for any purpose other
than the performance of its obligations under this Agreement nor make any
public announcement regarding the terms or operation of this Agreement
except with the express written consent of the other or as required by
law. This provision shall survive the termination of this Agreement
howsoever and without limitation of time.
12.2 Confidential Information shall not include information which:
12.2.1 at or prior to the time of disclosure was known to the receiving
party except to the extent that such information was obtained
unlawfully or by a breach of confidentiality;
12.2.2 at or after the time of disclosure becomes generally available to
the public other than through any act or omission on the part of the
receiving party;
12.2.3 is independently developed by the receiving party; or
12.2.4 is required to be disclosed by law, by a court order or by any
competent government or regulatory authority.
12.3 Notwithstanding clause 12.1, the parties shall within four weeks from the
date of signature of this Agreement meet to agree in good faith a press
announcement to be released by the parties regarding the subject matter of
this Agreement.
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13. Termination
13.1 Either party may terminate this Agreement by notice to the other
party if:
13.1.1 the other party is in breach of any of its material obligations
under this Agreement and the other party fails to remedy such breach
(if capable of remedy) within 30 days of receipt of a notice
specifying such breach and requiring such breach to be remedied;
13.1.2 any of the warranties on the part of the other party contained in
this Agreement is or becomes untrue or inaccurate in any material
respect; or
13.1.3 an order is made for the winding up of the other party or an
effective resolution is passed for the winding up of the other party
(other than for the purposes of solvent amalgamation or
reconstruction), the other party has a receiver, administrative
receiver or administrator appointed in respect of all or any part of
its assets party (other than for the purposes of solvent
amalgamation or reconstruction).
13.2 Without prejudice to any other rights under this Agreement, TWM may
terminate this Agreement by providing Z4P and Winner prior written notice
of 30 days, if Z4P and/or Winner, unless cured within such notice period,
do or omit to do anything that would cause TWM (including its respective
officers, directors, employees, permitted successors and assigns) to be in
breach of any laws or regulations relating to betting or gaming or to
otherwise expose TWM (including its respective officers, directors,
employees, permitted successors and assigns) to any liability under any
laws or regulations relating to betting or gaming.
13.3 Any termination of this Agreement shall not affect any accrued rights or
liabilities of either party.
13.4 After expiry or termination of this Agreement:
13.4.1 TWM shall return to Z4P and/or destroy any and all data, materials,
files and programs (including but not limited to the Games) stored
on TWM's systems which belong to Z4P;
13.4.2 Z4P and Winner shall return to TWM and/or destroy any and all data,
materials, files and programs which belong to TWM;
13.4.3 all licences granted under this Agreement shall terminate;
13.4.4 the following Clauses shall survive termination of this Agreement:
Clauses 9, 11.1, 11.2, 12, 13.4, 15, 16, 17, 22, 23, 24, 26 and 27.
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14. Warranties
14.1 In addition to the parties' obligations set out in Clauses 10, each party
warrants that it will comply with Data Protection Legislation and any
directions issued by the Information Commissioner in relation to such
obtaining, storage and use of personal data of Digital Subscribers as may
be required or carried out under this Agreement (whether in relation to
Transactions or otherwise).
14.2 Z4P undertakes, represents and warrants that:
14.2.1 it has full power and authority to enter into this Agreement and to
perform its obligations according to the terms of this Agreement,
and that it will maintain such authority throughout the Term;
14.2.2 Z4P will not, to the best of its knowledge having carried out all
reasonable enquiries (excluding obtaining legal opinion with respect
thereof), do or omit to do anything that would cause TWM (including
its respective officers, directors, employees, permitted successors
and assigns) to be in breach of any laws or regulations relating to
betting or gaming (or to otherwise expose TWM or its respective
officers, directors, employees, permitted successors and assigns to
any liability under any laws or regulations relating to betting or
gaming).
14.2.3 to the best of its knowledge having carried out all reasonable
enquiries (excluding obtaining legal opinion with respect thereof)
neither the exercise by TWM of any of the rights in and to the
Content, the Software and/or the Z4P Equipment granted to it by Z4P
under this Agreement nor the Content (or any part thereof), the
Services, the Software and/or Z4P Equipment as delivered by Z4P to
TWM under this Agreement will breach any law, regulation or
applicable code of conduct or infringe any Intellectual Property
Rights of any third party or constitute a breach of confidence or be
defamatory of any person;
14.2.4 it owns or will prior to delivery of the Content to TWM have
obtained all rights, consents, licences, clearances and waivers in
or in relation to the Content (and all material contained therein)
which are necessary to enable TWM to include the Content in, and
make the Content available to Digital Subscribers on the Channels
(including, without limitation, all necessary clearances and
licenses from music collecting societies such as PRS, PPL and MCPS
or any similar body, if applicable);
14.2.5 the Content (and all Transactions in respect thereto) shall comply
with the SSSL Policy at all times during the Term and the software
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underlying each Game is operated on a random basis and shall comply
with all laws and/or regulations applicable to such software;
14.2.6 the Content shall not contain any Unacceptable Content;
14.2.7 the Software shall meet best industry standards for operating and
managing a Fixed Odds Betting channel and shall allow: (a) all
Transactions in relation to the Content to be executed in a secure
environment, (b) separate, complete, accurate and detailed records
and accounts of all Transactions, Content Revenues and all uses of
the Content by Digital Subscribers to be maintained and produced on
a daily, weekly and monthly basis, and (b) TWM to operate the
Channels as envisaged under this Agreement.
14.2.8 it shall use all reasonable endeavours to ensure that the Z4P
Equipment in respect of the Channels (including but not limited to
the Content back-end systems) has sufficient capacity to deal with
the load placed upon it by Digital Subscribers without material
degradation of quality or performance under normal range of levels
of demand (on the basis of prior use of the Content) and will not
cause the Content to be available for less than 99% during any
calendar month of the Term.
14.2.9 it shall use all reasonable endeavours to ensure that the Content,
the Software and the Z4P Equipment shall comply with the Functional
Specification and shall be secure and able to resist access by
unauthorised third parties, attempted fraud, Virus attacks and other
malicious acts by third parties and has the capability to identify
and isolate fraudulent Transactions.
14.2.10 it shall use reasonable endeavours to ensure that Z4P (and shall
ensure that its employees, agents and/or sub-contractors) shall not
adversely modify, damage or destroy any information or data
contained in the systems used for the Channels (including but not
limited to the Z4P Equipment and/or the Software) and Z4P shall have
secure connectivity to the systems used for the Channels, and Z4P
shall ensure that its employees, agents and/or sub-contractors are
not able to commit fraud or any other malicious acts with any of the
information contained in the systems used for the Channels.
14.2.11 Z4P shall incorporate within the Software and Services a secure
Random Number Generator which conforms with industry best practice
for Fixed Odds Betting services.
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14.3 TWM undertakes, represents and warrants that:
14.3.1 it has full power and authority to enter into this Agreement and to
perform its obligations according to the terms of this Agreement,
and that it will maintain such authority throughout the Term;
14.3.2 it shall use reasonable endeavours to ensure that the provision of
the Content to Digital Subscribers shall be in accordance with best
industry practice policies and/or guidelines applicable to such
online Fixed Odds Services (each, a "Third Party Policy"). The
document entitled "Player protection and social responsibility: Code
of Practice for Interactive Gambling" issued by Gamcare and BSkyB
dated July 2003 (and any successor document issued by Gamcare and
where appropriate BSkyB) shall constitute such a Third Party Policy,
and Z4P shall ensure that the Content and all Transactions comply
with the same; and
14.3.3 it owns or will own all rights, consents, licences, clearances and
waivers in or in relation to any TWM deliverables (and all material
contained therein) which are necessary to enable TWM to make the
Content available to Digital Subscribers on the Channels.
14.3.4 has the necessary experience, knowledge, expertise, competent
manpower, facilities, software, technology and the capacity to
provide and perform its obligations under this Agreement.
14.4 Winner undertakes, represents and warrants that:
14.4.1 it has full power and authority to enter into this Agreement and to
perform its obligations according to the terms of this Agreement,
and that it will maintain such authority throughout the Term;
14.4.2 it owns the registered trade xxxx XXXXXX.XXX and the URL
xxx.xxxxxx.xx.xx in the UK and has obtained a bookmaker's permit to
operate Fixed Odds Betting services in the UK; and
14.4.3 the use by TWM of the Brand will not breach any law, regulation or
applicable code of conduct or infringe any Intellectual Property
Rights of any third party or constitute a breach of confidence or be
defamatory of any person.
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15. Indemnities
15.1 Z4P agrees to indemnify and keep indemnified TWM (including its respective
officers, directors, employees, permitted successors and assigns) against
any Losses suffered or incurred as a result of a breach of any of the
warranties on the part of Z4P contained in this Agreement.
15.2 Winner agrees to indemnify and keep indemnified TWM (including its
respective officers, directors, employees, permitted successors and
assigns) against any Losses suffered or incurred as a result of a breach
of any of the warranties on the part of Winner contained in this
Agreement.
15.3 TWM agrees to indemnify and keep indemnified Winner and/or Z4P (including
their respective officers, directors, employees, permitted successors and
assigns) against any Losses suffered or incurred as a result of any breach
of the warranties on the part of TWM contained in this Agreement.
15.4 Z4P agrees to indemnify and keep indemnified TWM (including its respective
officers, directors, employees, permitted successors and assigns) against
any Losses suffered or incurred as a result of:
(a) a claim by any third party that the Content (or any part thereof),
the Services, the Software and/or Z4P Equipment as delivered by Z4P
to TWM under this Agreement breaches any law, regulation or
applicable code of conduct or infringes any Intellectual Property
Rights of any third party or constitute a breach of confidence or is
defamatory of any person;
(b) Z4P and/or Winner (including their respective officers, directors,
employees, permitted successors and assigns) causing TWM (including
its respective officers, directors, employees, permitted successors
and assigns) to be in breach of any laws or regulations relating to
Fixed Odds Services; or
(c) Z4P's and/or Winner's (including their respective officers,
directors, employees, contractors, permitted successors and assigns)
acts, errors and/or omissions (including but not limited to
negligent or fraudulent acts), save where such acts, errors and/or
omissions have been made at TWM's request
provided that such Losses incurred or suffered are not caused by TWM
(including its respective officers, directors, employees, contractors,
permitted successors and assigns).
15.5 TWM agrees to notify Z4P if it becomes aware of any third party claim or
other events which may fall under the indemnities in Clause 15.4 and which
come to its attention, with all relevant information in its possession and
any advice it may give on how to cure such event. TWM and Z4P agree to
provide each other all reasonable assistance in relation to any such
proceedings. For the purpose of clarification, at Z4P request, TWM shall
empower Z4P to defend any claim and appoint its legal advisors with
respect hereof.
13
15.6 TWM agrees to indemnify and keep indemnified Z4P (including its respective
officers, directors, employees, permitted successors and assigns) against
any Losses suffered or incurred as a result of:
(a) a claim by any third party that TWM through the performance of its
obligations under this Agreement breaches any law, regulation or
applicable code of conduct or infringes any Intellectual Property
Rights of any third party or constitute a breach of confidence or is
defamatory of any person;
(b) TWM (including their respective officers, directors, employees,
permitted successors and assigns) causing Z4P (including its
respective officers, directors, employees, permitted successors and
assigns) to be in breach of any laws or regulations relating to
Fixed Odds Services in the UK; or
(c) TWM's (including their respective officers, directors, employees,
contractors, permitted successors and assigns) acts, errors and/or
omissions (including but not limited to negligent or fraudulent
acts), save where such acts, errors and/or omissions have been made
at Z4P's request,
provided that such Losses incurred or suffered are not caused by Z4P
(including its respective officers, directors, employees, contractors,
permitted successors and assigns).
15.7 Z4P agrees to notify TWM if it becomes aware of any third party claim or
other events which may fall under the indemnities in Clause 15.6 and which
come to its attention, with all relevant information in its possession and
any advice it may give on how to cure such event. TWM and Z4P agree to
provide each other all reasonable assistance in relation to any such
proceedings. For the purpose of clarification, at TWM request, Z4P shall
empower TWM to defend any claim and appoint its legal advisors with
respect hereof.
16. Limitation of Liability
16.1 Subject to Clauses 16.2 and 16.3 (but excluding any liability under
Clauses 14.2.2 and 14.2.3), the total liability of either party under or
arising out of this Agreement shall not exceed (pound)3,000,000 in respect
of any one incident (and for these purposes a number of claims during any
twelve (12) month period of the Term arising out of the same circumstances
shall be treated as a single incident). The total liability of either
party under or arising out of Clauses 14.2.2 and 14.2.3 shall not exceed
(pound)5,000,000 in respect of any one incident (and for these purposes a
number of claims arising during any twelve (12) month period of the Term
out of the same circumstances shall be treated as a single incident).
16.2 Nothing in this Clause 16 shall be construed to exclude the liability of
either party for death or personal injury caused by its negligence.
14
16.3 Neither party shall be liable to the other party for any indirect or
consequential loss or damage howsoever caused (including but not limited
to loss of profit, anticipated savings, wasted expenditure and loss of
data) arising out of or in connection with this Agreement.
17. Escalation Procedure
17.1 In the event of a dispute between the parties in relation to this
Agreement the parties shall use their best endeavours to ensure that the
dispute is resolved at the level of the appropriate commercial managers.
17.2 If the dispute remains unresolved fifteen (15) working days after referral
to the commercial managers the dispute shall be referred to the
appropriate managers with overall responsibility for interactive services
who shall meet within fifteen (15) working days of referral in order to
resolve the dispute.
17.3 If the dispute remains unresolved within fifteen (15) working days of
referral under Clause 17.2, then the parties shall be free to pursue
whatever legal remedies may be available to them.
18. Force Majeure
18.1 Neither party shall be liable to the other or be deemed to be in breach of
this Agreement by reason of any delay in performing or failure to perform
any of its obligations hereunder if and to the extent that the delay or
failure was caused by an event beyond that party's reasonable control
(including, without limitation, any strike, lockout or other industrial
action, act of God, war or threat of war or prohibition or intervention by
any government or competent regulatory authority) (a "Force Majeure
Event").
18.2 A party claiming a delay in performing, or a failure to perform, any of
its obligations due to a Force Majeure Event must immediately notify the
other of the relevant circumstances.
19. Entire Agreement
19.1 This Agreement contains the entire agreement of the parties relating to
the Content and supersedes all previous proposals, arrangements and
agreements between the parties relating to the Content. This Agreement
shall not be varied except by an agreement in writing signed by a duly
authorised representative of each party.
19.2 Each party confirms that it has not relied on any statement or
representation given by the other party except those expressly repeated
herein.
20. Severance
If any provision of this Agreement is held by any competent court or
regulatory authority to be void or unenforceable in whole or in part and
such provision is not fundamental to the commercial purpose of this
Agreement, this Agreement shall continue in force in relation to the
15
unaffected provisions and the remainder of the provision in question and
the parties shall negotiate in good faith (a) replacement term(s) for the
affected provision in order to achieve as closely as possible the original
intentions of the parties.
21. No Partnership
Nothing in this Agreement shall be construed as creating a partnership,
joint venture or agency relationship between the parties.
22. Waiver
22.1 No failure or delay by either party in exercising any right, power or
privilege under this Agreement shall operate as a waiver thereof nor shall
any single or partial exercise by such party of any right, power or
privilege preclude any further exercise thereof or the exercise of any
other right, power or privilege.
22.2 The right and remedies herein provided are cumulative and not exclusive of
any rights and remedies provided by law.
23. Contract Rights of Third Parties
The Parties hereto shall be the only parties entitled to rely on the
provisions hereof or bring any action in respect of such provisions and no
third party shall be entitled to benefit from or rely upon any rights or
obligations herein unless expressly provided for herein and to the maximum
extent possible, the provisions of the Contracts (Rights of Third Parties)
Xxx 0000 shall be hereby excluded.
24. Notices
24.1 Any notice or other communication given or made under this Agreement shall
be in writing and may be delivered or sent by first class prepaid recorded
delivery letter or facsimile transmission to the address of that party
specified in this Agreement or to that party's facsimile transmission
number thereat or such other address or number in England as may be
notified hereunder by that party from time to time for this purpose and
shall be effectual notwithstanding any change of address not so notified.
24.2 Each such notice or communication shall be deemed to have been given or
made and delivered, if by letter, 48 hours after posting, if by delivery,
when left at the relevant address or, if by facsimile transmission upon
receipt by the addressee of the complete text in legible form.
25. Assignment
The parties may not assign this Agreement in whole or in part to any third
party without the prior written consent of the other party (such consent
not to be unreasonably withheld or delayed).
16
26. Escrow agreement
Z4P shall place the source code of the Software and/or the Content into
escrow with the NCC Group Limited (the "NCC") under the standard single
licence escrow agreement terms of the NCC, and the costs of maintaining
such escrow agreement shall be borne equally between Z4P and TWM. TWM
shall be entitled under the escrow agreement to gain access to that source
code if:
(a) Z4P is unable to pay its debts within the meaning of section 123 of
the Insolvency Xxx 0000 or if a trustee receiver administrative
receiver or similar officer is appointed in respect of the business
or assets of Z4P or other steps are taken for the winding up of Z4P
or for the making of an administration order;
(b) Z4P has breached its obligations in relation to the Software and/or
the Content for any reason under the Service Level Agreement and
failed to remedy such breach within 60 days of being so-notified in
writing by TWM, in which event Z4P shall also be obliged to assist
TWM's staff which take over such obligations by providing all
training, cooperation, assistance and information as necessary; and
(c) Z4P is unable to perform its obligations relating to the Software
and/or the Content under this Agreement due to a Force Majeure
Event.
For the avoidance of doubt, the parties agree that the occurrence of any
of the above source code release events contained in clauses 26(a), (b)
and (c) above shall not affect Z4P's right to revenue as set forth in
Schedule 5 subject to any termination rights which may be exercised by TWM
under this Agreement.
27. Governing law and jurisdiction
This Agreement shall be governed by and construed in accordance with
English law and the parties hereby submit to the exclusive jurisdiction of
the English courts.
IN WITNESS WHEREOF this Agreement has been executed by duly authorised
representatives of the parties
SIGNED by on behalf of ) Signature: /s/ Xxx Xxxxxxx
TWO WAY MEDIA LIMITED )
) Print name: Xxx Xxxxxxx
)
)
Title: Commercial Director
17
SIGNED by on behalf of ) Signature: /s/ Xxxxxx Xxxxxx
ZONE 4 PLAY, INC. )
) Print name: Xxxxxx Xxxxxx
)
Title: CEO
SIGNED by on behalf of ) Signature: /s/ Xxxxxxxx Xxxxxxx
XXXXXX.XXX (UK) LIMITED )
) Print name: Xxxxxxxx Xxxxxxx
)
Title: Director
18
SCHEDULE 1
Definitions
In this Agreement:
"Agreement" means this agreement and all Schedules
hereto
"Bankers Games Regulations" means the Gaming Clubs (Bankers'
Games) Regulations 1994 (SI
1994/2899)(as amended). For the
avoidance of doubt, games as at the
date of signature of this Agreement
authorised under the Regulations are:
Roulette, Dice, Baccarat, Casino Stud
Poker, Super Pan 9, The Big Six, Sic
Bo and Three Card Poker.
"Bet" means the staking of money or monies
worth upon the outcome of an uncertain
or unascertained event in return for a
promise to give money or monies worth
upon the determination of that
uncertain or unascertained event in a
particular way.
"Brand" has the meaning given to it in Clause
9.3.
"Channels" means the Digital Television Channel,
the Mobile Channel and the WWW
Channel.
"Chargeback" a deposit or any other Transaction
which is credited back to the Digital
Subscribers debit or credit card by
their credit or debit card company.
"Confidential Information" means any and all information relating
to the Content, the personal data of
Digital Subscribers and any other
information relating to the business
interests of either party (whether or
not such information is identified as
being confidential at the time of
disclosure).
"Content" means, inter alia, the text, graphics,
still and moving pictures, audio,
audio-visual material, software,
information and data specified in
paragraph 1.2 of Schedule 2 which is
to be provided by Z4P.
"Content Revenues" means all revenues generated in
respect of Transactions.
"Data Protection
Legislation" means The Data Protection Act 1998 (as
amended).
"Database" has the meaning given to it in Clause
9.6.
19
"Digital Television Channel" means TWM's Gaming Services as
provided to the cable digital
television customers referred to in
Recital B.
"Digital Subscriber" means users of the Channels.
"Fixed Odds Betting" means Bets where the size of the
winnings is determined by multiplying
the value of the stake by the
specified odds (and which for the
avoidance of doubt excludes Pool
Betting and/or any form of spread
betting), and where there is (a) a
bilateral risk taken by the punter and
the bookmaker, (b) the return is
clearly stated, and (c) HM Customs &
Excise is collecting 15% gross profit
tax in relation to such Bets.
"Fixed Odds Services" means fixed odds betting services that
may be provided to remote customers in
the United Kingdom in accordance with
applicable laws and regulations
together with such other betting or
gaming services provided to remote
customers in the United Kingdom which
from time to time become permissible
in accordance with applicable laws and
regulations;;
"Functional Specification" means TWM's technical and delivery
specification for the Content, the
Software, the Z4P Equipment and the
Services as set out at Schedule 7 and
which may upon reasonable notice be
amended by TWM from time to time.
"Game" means any game or competition included
within the Content.
"Gaming Services" means any form of gaming, prize draws,
lottery and any other events,
services, products or processes
classified as gaming (including but
not limited to any game referred to in
the Bankers Games Regulations but not
authorised under the SSSL Policy
and/or other Third Party Policies from
time to time) by any of: Betting &
Gaming Duties Xxx 0000; Lotteries and
Amusements Xxx 0000; the Betting,
Gaming & Xxxxxxxxx Xxx 0000; the
Gaming Xxx 0000; the Financial
Services Authority and any other
statutory or regulatory frameworks (or
amendments thereto) that may exist
during the Term.
"Intellectual Property Rights" means all copyright and other
intellectual property rights,
howsoever arising and in whatever
media, whether or not registered,
including (without limitation)
20
patents, trade marks, service marks,
trade names, database rights,
registered designs, rights in any
format or presentation (including its
look, feel, visual or other
non-literal elements) and any
applications for the protection or
registration of these rights and all
renewals and extensions thereof
throughout the world.
"Launch Date" means the date upon which the Content
commences distribution upon the
Channel(s).
"Losses" means all costs and expenses, losses,
damages (including the reasonable
legal fees and expenses of solicitors
and other professionals and
specialists).
"Merchant Acquirer" means the entity responsible for
capturing, storing and processing
credit and debit card details in a
secure environment to enable funds to
be `deposited' and `withdrawn' from
user accounts in relation the Content
and/or providing Digital Subscribers
with an alternative process to deposit
and/or withdraw funds. For the
avoidance of doubt, it is anticipated
that Digital Subscribers will be given
the option to deposit funds via
interactive TV, the internet and via a
call centre to be provided by TWM at
its expense (or a third party to be
appointed by TWM at its expense).
"Mobile Channel" means Permitted Services provided to
users of mobile telecommunications
devices.
"NTL" has the meaning given to it in recital
(B).
"Original Agreement" the Agreement of October 12th 2004
between the parties entitled
"Interactive Fixed Odds Betting
Services Agreement".
"Permitted Services" means the permitted fixed odds games
or competitions set out in paragraph
1.2 of Schedule 2.
"Pool Betting" means a Bet which is defined by
Section 10 of the Betting and Gaming
Duties Xxx 0000.
"Project Plan" means the project plan as set out at
Schedule 8 (as may be amended by
agreement of the parties).
"Random Number Generator" means the software program that
generates random numbers in relation
to the Fixed Odds Betting games
included within the Content.
"Service Level Agreement" means the service level agreement as
set out at Schedule 9 (as may be
amended by agreement of the parties)
21
and which sets out the levels of
service and performance of the
Content, the Software, the Z4P
Equipment and the Services.
"Software" means the software program, source or
object code, tool or module developed
or owned or licensed in by Z4P which
supports the functionality and
operation of the Channels' back-end
systems and/or the Z4P Equipment,
together with all improvements or
enhancements to the existing
functionality which are subsequently
developed or created by or on behalf
of Z4P during the Term.
"SSSL" means Sky Subscribers Services
Limited.
"SSSL Policy" means the `Policy towards fixed odds
games products/gaming on the DTH
Platform' issued to broadcasters of
interactive services upon the DTH
platform in the Territory dated 30
June 2004 as attached at Schedule 10,
and any subsequent policies that may
be issued by SSSL (or any other entity
authorised to issue policy statements
in respect of the DTH platform) and as
approved by the Gaming Board of Great
Britain (and any successor body
thereof) during the Term.
"Telewest" has the meaning given to it in recital
(B).
"Territory" means the United Kingdom.
"Testing" means such systems, interface and user
acceptance tests to be performed and
determined by TWM in respect of each
part of the Content and of the
Services.
"Transaction" means the sale, licensing or supply of
Permitted Services by TWM to Digital
Subscribers via the Content on the
Channels.
"Unacceptable Content" means any material of any nature which
(i) is defamatory, libellous,
pornographic, obscene, in contempt of
court or in contravention of any law
or statute; (ii) promotes violence or
discrimination based on race, sex,
religion, national origin, physical
disability, mental disability, age or
which promotes illegal activities;
(iii) infringes any Intellectual
Property Right of any third party;
(iv) contains any Virus; and/or (v)
concerns, includes and/or promotes any
Game and/or service that is not a
Permitted Service.
"Virus" any computer code, programming
instruction or set of instructions
22
that has the ability to damage, modify
or interfere with computer programs,
data files or hardware (including but
not limited to Set Top Boxes).
"WWW Channel" means Permitted Services provided to
users on xxx.xxxxxx.xx.xx.
"Z4P
Equipment" means any database servers, software,
application servers, web servers,
routers, underlying network
infrastructure and/or connectivity
supplied by Z4P to TWM for the
purposes of hosting, maintenance,
delivery and distribution of the
Content on the Channels.
23
SCHEDULE 2
Content
1. Description of Content
1.1 Z4P shall ensure that the Content shall at all times during the Term
conform with the Functional Specification, and the description set forth
in paragraph 1.2 below.
1.2 At launch, the Content shall consist of:
(a) Fixed Odds Betting upon:
(i) the fixed odds games set out in Part A, Part B and Part C below;
and
(ii) new additional permitted fixed odds games, which shall consist
of:
- new fixed odds games which fall under the definition of Fixed Odds
Betting games; and
- new fixed odds games which are no longer prohibited under future
legislation in the United Kingdom;
(b) fixed odds games offering `pay to play ' opportunities and `play for
fun' opportunities for no charge.
Part A
(a) a `keno' game;
(b) a `hi-lo' game;
(c) a `dice' game; and
(d) a `slots' game.
Part B
In addition to the games set out in Part A above and Part C below, no less
than six (6) additional games (each, being a re-version of the
classification of the games set out in Part A above) shall be delivered to
TWM during each twelve (12) month period of the Term in accordance with
TWM's timelines and instructions as to the look and feel of such Games. In
addition TWM and Z4P shall have good faith discussions about launching
other new games (which are not re-versions of the games set out in Part A
above) during the period of the Term.
24
Part C
one or more `Roulette' games
1.3 TWM shall provide an internet domain name, subject to Z4P' approval
which will not unreasonable withheld and Z4P shall provide an internet site
attached to such internet domain name which will enable Digital Subscribers to
register for the Content, and where appropriate will promote certain aspects of
the Content. Details of the internet site are provided in the Functional
Specification in Schedule 7.
1.4 Z4P shall ensure that the Content shall not include any of the
following prohibited goods and/or services:
(a) any Unacceptable Content;
(b) any dangerous goods (including without limitation: knives,
fireworks, firearms and explosives, illegal products or substances,
prescription drugs or medication) and any documentation or knowledge
enabling any person to manufacture any such dangerous goods;
(c) any goods or services which are contrary to public decency or
reasonable good taste;
(d) any goods or services which compete in a material fashion with NTL
and/or Telewest's internet, telephony and/or television services;
(e) any goods or services not included within the description of the
Content set out in paragraph 1.2 above unless Z4P has obtained the
prior written consent of TWM and has agreed a revenue share in
respect thereof.
1.5 In the event that the Content contains any of the prohibited goods and/or
services listed in Paragraphs 1.4(a) - (e) inclusive Z4P shall remove the
offending content as soon as reasonably possible (but in any event within
1 working day) on discovery of the offending material.
1.6 TWM and Z4P will determine the games that will be launched on the Channels
and the creative design, and look and feel and names of these games save
that in the absence of agreement between TWM and Z4P within two weeks of
starting discussions, TWM's decision will prevail as to which games will
be launched and the creative design, look and feel and names of these
Games.
2. Delivery of the Content
2.1 Z4P shall deliver the Content in digital format in accordance with the
Functional Specification throughout the Term.
25
2.2 Z4P shall on TWM's request update the Content, and shall deliver the
Content (as so updated) to TWM as soon as reasonably practicable after the
Content has been updated.
3. Testing prior to the Acceptance Date
3.1 Z4P shall supply each part of the Content to TWM for the purposes of
Testing to ensure compliance of the same with the Functional
Specification. Z4P shall deliver any and all alterations and/or additions
to such part of the Content to TWM as reasonably requested by TWM pursuant
to such Testing, in accordance with the time limits reasonably requested
by TWM.
3.2 TWM shall have no obligation to use any Content that has not completed
Testing. TWM shall inform Z4P whether the Content has completed Testing
(if it has, such date being "the Acceptance Date").
3.3 If, any time after the relevant Acceptance Date: (a) TWM deems (acting
reasonably) that the Content (or any part thereof) does not comply with
any aspect of the Functional Specification and/or any applicable laws,
regulations or codes of conduct, or (b) TWM has been instructed to make
changes by any of the digital platform operators, then TWM shall notify
Z4P of the same giving details of changes and/or alterations required. Z4P
shall alter and/or change the Content so that it complies with the
Functional Specification, any applicable laws, regulations or codes of
conduct and/or the changes instructed by the digital platform operators.
Once amended Z4P shall supply the altered Content for re-Testing to TWM.
TWM shall not be obliged to use such amended Content until satisfactory
re-Testing (in the reasonable opinion of TWM) of the same.
4. Content Support
4.1 TWM (or its subcontractors on its behalf) shall be responsible for dealing
with first line queries from Digital Subscribers concerning the Content
and shall respond to all of such queries. Pursuant to the Service Level
Agreement, Z4P shall provide the details of a technical contact for all
technical issues relating to the Content.
5. Service Levels
5.1 Z4P shall use reasonable endeavours to ensure that at all times during the
Term the Content is of a high standard reasonably acceptable to TWM and is
attractive to Digital Subscribers.
5.2 Z4P shall obtain and maintain throughout the Term a secure communications
link for the purpose of fulfilling its obligations under the Service Level
Agreement.
5.3 Z4P shall ensure that the Content comply with those service levels as set
out under the Service Level Agreement.
26
6. Additional Content
Subject to Z4P completing its obligations to produce the Content for each of the
Channels in accordance with Schedule 2, including the obligation to produce the
Content for the Mobile Channel on the handsets set out in the list below, then
the Parties further agree and acknowledge that in the event that further
content, including but not limited to new games and/or same games on new
devices, are requested (not specifically addressed in this Agreement), TWM shall
pay Z4P (pound)1000 GBP per game per device.
The mobile telephone handsets for which Mobile Content will be produced by Z4P
hereunder are as follows:
All Nokia series handsets:
Series 40
Series 60
Including updates to the Nokia series 40 & 60 as and when they occur, being new
firmware releases or handsets
Sony Ericsson Samsung
SE T610 E820
SE T630 E3300
SE Z600 D410
SE K500 D500
SE V800 Z107
SE K700i E330
C100
Sharp E700
GX 10 P400
GX 15 S300
GX 20 S300m
GX 30 X600
GX 30i
GX 902sh Motorola
T710i
LG V600
C 2200 C385
L1100 V220
F7250 V500
V550
Siemens
X00 Xxxxx
X00 XxX0
S55 MyX5
SL55
27
SCHEDULE 3
Services
Z4P shall ensure that the Services, the Software and the Z4P Equipment shall at
all times during the Term conform with the Functional Specification. Z4P shall
provide the following Services during the Term:
1. Z4P shall provide the Software and Z4P Equipment which shall:
1.1 provide a secure account management system to:
(a) enable Digital Subscribers to register their details and set up
betting accounts;
(b) deposit and withdraw funds via the phone, internet and in the case
of users of the Digital Television Channel, via the Digital
Television Channel, and to deal with Chargebacks and non-allowable
Transactions;
(c) identify , isolate and track issues in relation to customer accounts
which impact the operation of the Content, Software and Services;
and
(d) enable customer service representatives ("CSRs") to access a
complete audit trail of account history of individual customer
accounts;
1.2 manage the Database generated by the Channels;
1.3 provide a secure transaction system capable of:
(a) processing and authenticating large volumes of Bets (in excess of
500 concurrent Bets);
(b) setting payouts, stake limits and increments;
(c) setting maximum payouts per Game play and per day;
(d) offering the capability to deliver `free Bets' and other promotional
Bets; and
(e) ensuring registered Digital Subscribers are paid and debited the
correct amounts into their accounts, in line with their winnings and
losses;
1.4 provide reporting tools which track in real time or near real time
financial and operational performance of the Channels;
1.5 provide the information specified in the `reporting' section of the
Functional Specification in a format acceptable to TWM which shall include
but not limited to:
(i) the total number of Transactions carried out during the relevant
month;
28
(ii) the value of each Transaction;
(iii) the date of each Transaction;
(iv) the Game category of each Transaction;
(v) total Content Revenues;
(vi) the calculation of Profit in respect of the relevant Transactions
(including but not limited to details of all relevant deductions
actually made and/or due); and
(vii) such other information as may be required pursuant to the Functional
Specification;
1.6 provide a secure Random Number Generator which conforms with industry best
practice for Fixed Odds Betting services;
1.7 provide a marketing system which enables:
(i) bonuses to be offered to Digital Subscribers when they deposit
funds;
(ii) coupons to be offered to NTL's and Telewest's customers irrespective
of whether they have deposited funds;
(iii) Digital Subscribers to accumulate `loyalty' points based on levels
of play, and bonuses to be paid when agreed points thresholds have
been reached; and
(iv) `betting events' to be set up which enable odds, payout tables,
jackpots and bonuses to be changed for the period such betting
event;
1.7 provide a fault management system which enables:
(a) customer services agents to be kept informed of progress in
resolving any faults in relation the games and/or the Software
and/or the Z4P Equipment, or any other factors that may affect the
customer experience; and
(b) to provide training to TWM, and where appropriate to its customer
services partner, in relation to the fault management system.
2. Z4P shall provide the infrastructure and kit to enable the Content and
Content back-end database systems (including the Z4P Equipment and
Software) to be set up and hosted by TWM, and shall provide training to
TWM in the installation of such infrastructure and kit.
3. Subject to Clause 10, Z4P shall provide and manage back-ups of the Content
and of the data on the Z4P Equipment and/or Software, in Israel for
archiving and disaster recovery purposes.
29
4. Z4P shall provide the tools and/or monitor to ensure that the Channels
and the Z4P Equipment and Software remain at all times and without
limitation fully secure from unauthorised access by third parties,
attempted fraud, Viruses and other malicious acts by third parties, and
will provide details of such tools and systems to TWM.
5. Z4P shall provide dedicated project management support to ensure the
Content and the Services are delivered in line with the Project Plan.
6. Z4P and TWM shall attend quarterly review meetings, at a venue to be
agreed, where the performance of the Channels against targets will be
reviewed, and Z4P shall provide feedback on how the performance of the
Channels can be improved based on Z4P's expertise in betting and gaming
services.
7. Z4P shall provide dedicated operational and monitoring support for
Digital Subscribers and/or TWM to ensure service performance issues
and/or any faults (including but not limited to faults to the games
and/or the Software and/or the Z4P Equipment) are dealt with as
detailed in the Service Level Agreement.
8. Z4P shall ensure that the Services, the Z4P Equipment and the Software
comply with those service levels as set out under the Service Level
Agreement.
30
SCHEDULE 4
TWM's Obligations
1. Games development support
1.1 TWM shall:
(a) provide Z4P access to Liberate code libraries TWM owns to enable
faster development of the Games; and
(b) perform code reviews to identify means of improving games
performance; and
(c) if necessary, support Z4P to debug client-side Game applications.
2. Systems integration
2.1 TWM shall be responsible for hosting the Content and the Content back-end
systems and provide the required interfaces with the cable head end and
cable return path. TWM shall provide 24/7 on call support for all hosting
issues.
2.2 TWM shall, relying upon Z4P's directions, integrate all the elements
provided by both Z4P and TWM to distribute the Content and/or to operate
the Channels into an `end to end' system.
3. Project management
3.1 TWM shall provide `lead' project management resource to ensure the
Channels are launched in accordance with the Project Plan.
4. Merchant billing:
4. TWM shall provide merchant billing, where appropriate via a third party,
to enable credit and debit card transactions to be executed.
5. Customer Service
5.1 TWM shall provide telephone and on-line customer service support to
Digital Subscribers for registration and for on-going customer support.
The customer support line will be manned in accordance with the Service
Level Agreement.
6. Channel management
6.1 TWM shall manage the day to day operation of the Channels, troubleshoot
issues when they arise, and account manage the day to day commercial
relationships with Telewest and NTL.
7. Operational support
7.1 TWM shall provide round the clock support to ensure the problems affecting
31
the performance of the Channels which can be corrected by TWM in the UK
are fixed in a timely manner.
8. Financial management
8.1 TWM shall be responsible for the financial management of the Channels and
all associated Transactions. The Digital Subscribers' accounts used for
this Agreement shall be managed according to all applicable laws,
regulations and codes of practice. Such accounts shall be separate
accounts from any other activity and shall not in any way be subject to
any third party's right, lien charge or otherwise.
32
SCHEDULE 5
Revenue shares
1. A. Digital Television Channel
TWM shall pay to Z4P and/or Winner (as the case may be) during the Term of
this Agreement the following share of Profit received from the commercial
operation of the Digital Television Channel ("DTC Profit") according to
the two stages set out in tables 1 and 2 below. The first stage DTC Profit
shares shall apply until 12.5% of the DTC Profit is equal to (a)
(pound)300,000 in the first year of the Term, or (b) (pound)200,000 in the
second year of the Term or any years of the Term thereafter, after which
point the second stage DTC Profit shares shall apply. The DTC Profit
shares shall be payable by TWM to Z4P and/or Winner (as the case may be)
within 10 days of receipt of an invoice from Z4P and/or Winner in respect
thereto.
Z4P, Winner and TWM shall share DTC Profit as follows:
Table 1 - Stage 1DTC Profit shares:
------------------------------------------------------------------------
Z4P 42.5%
------------------------------------------------------------------------
TWTV 57.5%
------------------------------------------------------------------------
Table 2 - Stage 2DTC Profit shares:
------------------------------------------------------------------------
Z4P 45%
------------------------------------------------------------------------
Winner 10%
------------------------------------------------------------------------
TWTV 45%
------------------------------------------------------------------------
For the avoidance of doubt Stage 1 DTC Profit shares shall apply until DTC
Profit of (pound)2.4m is generated in the first year of the Term, and DTC
Profits of (pound)1.6m are generated in the second year of the Term or any
years of the Term thereafter.
B. Mobile Channel
TWM shall pay to Z4P (during the Term of this Agreement the following
share of Profit received from the commercial operation of the Mobile
Channel ("MC Profit") according to the two stages set out in tables 1 and
2 below. The first stage MC Profit shares shall apply until 10% of the MC
Profit is equal to (pound)150,000, after which point the second stage MC
33
Profit shares shall apply. The MC Profit shares shall be payable by TWM to
Z4P within 10 days of receipt of an invoice from Z4P in respect thereto.
Z4P, Winner and TWM shall share MC Profit as follows:
Table 1 - Stage 1 MC Profit shares:
------------------------------------------------------------------------
Z4P 55%
------------------------------------------------------------------------
TWTV 35%
------------------------------------------------------------------------
Winner 10%
------------------------------------------------------------------------
Table 2 - Stage 2 MC Profit shares:
------------------------------------------------------------------------
Z4P 45%
------------------------------------------------------------------------
TWTV 45%
------------------------------------------------------------------------
Winner 10%
------------------------------------------------------------------------
For the avoidance of doubt Stage 1 MC Profit shares shall apply until MC
Profit of (pound)1,500,000 is generated.
C. WWW Channel
TWM shall pay to Z4P and/or Winner (as the case may be) during the Term of
this Agreement the following share of Profit received from the commercial
operation of the WWW Channel ("WWWC Profit") according to the table below.
Z4P, Winner and TWM shall share WWWC Profit as follows:
Table - WWWC Profit shares:
------------------------------------------------------------------------
Z4P 20%
------------------------------------------------------------------------
TWTV 20%
------------------------------------------------------------------------
Winner 60%
------------------------------------------------------------------------
2. For the purposes of paragraph 1 (above), "Profit" means, calculated on a
monthly basis, gross Content Revenues or any other revenues including
34
without limitation advertising and premium rate telephony revenues
generated in relation to the Content for such month less (in respect of
such Content Revenues):
(i) Bookmaker's Gross Profit Tax paid to HMCE by TWM pursuant to the
Betting and Gaming Duties Xxx 0000;
(ii) winnings actually paid (plus returned stakes) to Digital
Subscribers;
(iii) Chargebacks and bad debt;
(iv) free Bets and discounted elements of Bets;
(v) any additional taxes, levies and/or duties to those payable by TWM
at the date of this Agreement which are required by a relevant
statutory body to be paid by TWM in respect of the offer of
Transactions and/or in respect of and/or in connection with the
distribution of the Content via the Channels;
(vi) Merchant Acquirer costs, as detailed in Schedule 11 to this
Agreement, which may be amended by TWM from time to time;
(vii) any charges and/or share revenues to be paid to Telewest and/or NTL
by TWM and/or other digital platform operators (including but not
limited to broadcasters that provide an access point to the
Channels) and/or marketing affiliates. For the avoidance of doubt
such charges shall include but not be limited to any payment made by
TWM to Telewest, NTL and/or other digital platform operators
resulting from Content availability falling below 95%; This
sub-section (vii) shall not apply to WWW Channels unless otherwise
agreed between the parties;
(viii) any charges and/or share revenues to be paid to mobile
telecommunications network providers, service carriers, aggregators,
distributors or other service suppliers. Without limiting TWM's
right to deduct the same TWM agrees to consult Z4P in good faith
about such deductions;
(ix) any charges and/or share revenues to be paid to internet service
providers, telecommunications service providers, distributors or
other service suppliers. Without limiting TWM's right to deduct the
same TWM agrees to consult Z4P in good faith about such deductions.
(x) VAT payable by TWM charged by Telewest and NTL on their revenue
shares which will be non recoverable by TWM, and any other
non-recoverable VAT charges payable by TWM in relation to the
35
Content and Services. For the avoidance of doubt, any VAT payable by
TWM which is recoverable by TWM shall not be deducted under this
paragraph.
For the avoidance of doubt, in the event that losses are incurred in any
month, such losses will be carried forward to the next month. The
calculation of Profit in the next month shall include the losses from the
previous month. In the event losses are incurred for two or more
consecutive months such losses will be shared between the parties in
accordance with the share model detailed above. For the purpose of
clarification and notwithstanding to any reference to the word "losses" in
this schedule and section 6 above shall refer to losses resulting from
Digital Subsriber's winnings and other deductions set out in this
paragraph 2 being greater than the Gross Content Revenues.
3. Winner will issue at no cost to TWM, upon commercial launch of the
Channels, shares equivalent to 5% of its equity, to reflect the
contribution TWM is making to build the value of Winner's business. Winner
agrees that such shares will have tag along rights attached to them. Such
TWM's shares equivalent to 5% of Winner's equity shall not be dilutable in
any way until the pre money enterprise valuation of Winner reaches
(pound)1 million.
4. In addition, Winner will grant TWM an option to acquire a 10% equity stake
in Winner's business at any time in the 3 years following signature of
this Agreement, based on an enterprise valuation of (pound)1 million pre
money.
36
SCHEDULE 6
Marketing
A. Digital Television Channel and Mobile Channel
1. TWM agrees at its own cost to promote, market and advertise the
availability of the Content. TWM will develop and execute a positioning
and promotional strategy designed to acquire new customers for the
Channels and to maximise play rates and minimise churn.
2. Z4P and Winner agree to provide to the other party such assistance as TWM
may reasonably request in promoting the availability of the Content.
3. Z4P grants to TWM (with the right to sublicense to Telewest and/or NTL)
the right during the Term to use excerpts or sections from the Content in
any promotional, marketing or advertising materials used or proposed to be
used by TWM in order to promote, advertise and market the Content.
4. No party shall publicise or disclose the terms or the existence of this
Agreement to any third party without obtaining the prior written consent
of the other parties and/or as required by law.
5. It is anticipated that the Digital Television Channel will also be
promoted via red button links with third party broadcasters with enhanced
TV capability. It is understood that these third party broadcasters may
require the Digital Television Channel to be `white labelled'. For the
avoidance of doubt, DTC Profit shares (as detailed in Schedule 5) shall be
calculated net of third party broadcaster's and marketing affiliates'
shares (if applicable). It is also understood that the Mobile Channel and
the WWW Channel may be `white labelled'.
B. WWW Channel
1. Winner agrees at its own cost to promote, market and advertise the
availability of the Content. Winner will develop and execute a positioning
and promotional strategy designed to acquire new customers for the Channel
and to maximise play rates and minimise churn.
2. TWM agrees to provide to the other party such assistance as Winner may
reasonably request in promoting the availability of the Content.
3. TWM grants to Winner the right during the Term to use excerpts or sections
from the Content in any promotional, marketing or advertising materials
used or proposed to be used by Winner in order to promote, advertise and
market the Content.
37
4. No party shall publicise or disclose the terms or the existence of this
Agreement to any third party without obtaining the prior written consent
of the other parties and/or unless as required by law.
5. It is further understood and agreed by the Parties that during the Term,
the WWW Channel will also enable the download of Mobile Content and the
Parties' revenue sharing shall be according to clause 1C of Schedule 5 and
with respect thereof.
SCHEDULE 7
Functional Specification
Please see attached.
38
SCHEDULE 8
Project Plan
Please see attached.
39
SCHEDULE 9
Service Level Agreement
1. Introduction
This Service Level Agreement ("SLA") sets out the operational services that TWM
and Z4P have agreed to provide to each other in relation to the interactive
fixed odds betting services agreement of even date between the parties (the
"Agreement") and provides a standard against which the provision of these
services can be measured. This SLA also sets out the quality of those services
that TWM intends to offer to and expects from Z4P.
2. Interpretation
2.1 Unless otherwise defined herein, capitalised terms used in this SLA shall
have the same meaning as given to them in the Agreement.
2.2 The TWM commercial manager shall be responsible for liasing with Z4P and
conducting impact assessments where requests are made to change the
service levels or procedures specified within this SLA and for updating
this document where necessary. TWM and Z4P shall be responsible for
monitoring services against the levels set out in this SLA and for
reporting non-compliance to each other where appropriate.
3. Contact Details
Where contact or notification between TWM and Z4P is referred to within this
SLA, the contact/notification points shall be as follows:
3.1 Z4P Contacts
-------------------------------------------------------------------------------------------------------------------------
CONTACT TYPE Dept / Name Email address Telephone Fax
-------------------------------------------------------------------------------------------------------------------------
Technical Gil Xxxx xxx@xxxx0Xxxx.xxx x000-0-000-0000 +972-3-
For outage and fault reporting ----------------- 537-9429
-------------------------------------------------------------------------------------------------------------------------
General issues /queries, Content Xxx Xxxxxxxx xxx@xxxx0xxxx.xxx x000-0-000-0000 +972-3-
launch, QA and Content change ----------------- 537-9429
requests
-------------------------------------------------------------------------------------------------------------------------
Technical (site development & Gil Levi xxx@xxxx0xxxx.xxx x000-0-000-0000 +972-3-
support) ----------------- 537-9429
-------------------------------------------------------------------------------------------------------------------------
Commercial Uri Levi xxx@xxxx0xxxx.xxx x000-0-000-0000 +972-3-
(contract issues, complaint ----------------- 537-9429
communication and commercial
discussion)
-------------------------------------------------------------------------------------------------------------------------
40
3.2 TWM Contacts
-------------------------------------------------------------------------------------------------------------------------
CONTACT TYPE Name Email address Telephone Fax
-------------------------------------------------------------------------------------------------------------------------
Operations/fault Xxxx Xxxxxx xxxxxxx@xxxxxxxx.xxx 020 7665 4455
reporting --------------------
-------------------------------------------------------------------------------------------------------------------------
Project manager Xxxxxx Xxxx xxxxx@xxxxxxxx.xxx 020 7665 4450
------------------
-------------------------------------------------------------------------------------------------------------------------
Commercial (Contract Xxx Xxxxxxx xxxxxxxx@xxxxxxxx.xxx 020 7665 4416
issues, etc) ---------------------
-------------------------------------------------------------------------------------------------------------------------
Financial (Reporting, Xxxxxxx Xxxxx xxxxxx@xxxxxxxx.xxx 020 7665 4440
invoicing, etc) -------------------
-------------------------------------------------------------------------------------------------------------------------
Either party may update their contact details from time to time by submitting a
change request to the commercial manager in the form of an e-mail outlining any
changes to the contact details. The TWM commercial manager shall be responsible
for updating the SLA and distributing to Z4P.
4. Responsibilities
4.1 TWM responsibilities
(a) Channel Maintenance
TWM shall provide:
(i) hosting facilities for the Z4P Equipment and the Software; and
(ii) necessary connectivity and operational premises for the distribution
of the Content.
TWM shall advise Z4P no less than 5 working days prior to all "business as
usual" (i.e. non emergency) proposed planned outages of, changes, modifications,
upgrades, replacements, enhancements or alterations to, the Channels and/or its
supporting software or planned outages of anything else within TWM's control
that affects the carriage of the Content on the Channels ("Planned Outage").
Notification shall be by e-mail to Z4P and Z4P is required to use all reasonable
endeavours to accommodate such change within the timescales agreed between the
Parties during the planning phase of such change. TWM shall provide 24/7 on call
support to all hosting issues.
(b) Customer service contact points
TWM shall provide customer service contact points for Digital Subscribers who
are experiencing network related problems, Set Top Box problems and/or issues
which are beyond the reasonable control of TWM's customer service.
41
4.2 Z4P's responsibilities
4.2.1 General
(a) Z4P shall provide TWM with the following prior to the submission of the
Content to TWM Testing:
o the client side applications source code; or
o URLs of all live pages
and shall notify TWM within 72 working hours of any proposed change to the
same.
(b) In order that TWM may inform/notify Z4P as contemplated by this SLA, Z4P
shall provide TWM with its relevant contact details (including an e-mail
address) for such notification and shall notify TWM of any updates
required to the same in order that such contact details remain accurate.
(c) Z4P shall ensure integrity of data prior to upload including, but not
limited to, the making use of up to date virus checking software to ensure
that all Content is Virus free.
4.2.2 Technical Provision and Performance
(a) Z4P shall ensure that it has fully secure connectivity to the Software
and/or the Z4P Equipment for the purpose of fulfilling its obligations
under this SLA
(b) In the event that the connectivity security, as referred to in 4.2.2(a)
(above) is not sufficient in the reasonable opinion of TWM:
(i) such non compliance shall be deemed to be a material breach of the
Agreement; and
(ii) TWM shall be entitled to reasonably request that Z4P increases the
connectivity security referred to in clause 4.2.2(a) (above) and Z4P
shall increase such connectivity security within a reasonable amount
of time following such request.
4.2.3 Removal of Content
Should TWM require Z4P to remove any part of the Content from the Channels, Z4P
shall comply with such request within 24 hours, save where the Content needs to
be removed to comply with any laws, regulation, code of conduct and/or any third
party's rights in which case the Content shall be removed by Z4P within 4 hours
of TWM's request.
4.2.4 Functionality
(a) Where any inputting of data by Digital Subscribers is intended to generate
an on line response and such response takes in excess of 15 seconds (as
measured from the receipt of a request on the Z4P's servers to the supply
of a response to the relevant Set Top Box), a message within the Content
42
shall be displayed to the Digital Subscriber advising the Digital
Subscriber to wait. Should the response not be supplied within such time
or as may be reasonably expected by the Digital Subscriber, a message
shall be displayed to the Digital Subscriber advising them what to do.
(b) Should TWM request Z4P to change the functionality, pages, features or
make any other non textual change to the Content and/or graphic change
(and which would include, for the avoidance of doubt, the updating of
links) Z4P shall supply any such new Content to TWM so as to ensure that
the following lead times for re-purposing and Testing are available to
TWM:
o One or two pages of Content - 5 working days from TWM's confirmation
of receiving a change request from Z4P; and
o Multiple page changes - lead times are by agreement between the
Parties on each occasion, depending upon the complexity and size
(number of pages) of the change.
4.2.5 Maintenance, archiving and redundancy
(a) Z4P shall ensure that disaster recovery/business continuity plans are in
place and offsite secure storage is utilised.
(b) Z4P is responsible for capacity planning to ensure its Content servers
remain able to store data as required.
(c) The Software and the Z4P Equipment shall support full redundancy.
(d) Z4P shall, using its secure connectivity, back-up every 24 hours all data
generated by the Software and Z4P Equipment in the course of operating the
Channels.
(e) Z4P shall issue daily diagnostic reports and take appropriate remedial
action if so required.
4.2.6 Fault Resolution
Z4P shall put in place adequate resource, equipment and related procedures for
logging, monitoring and resolving faults, errors & failures of the Content and
related supporting hardware and/or software (including but not limited to the
Z4P Equipment and the Software). It is understood the Content and Services will
be monitored for potential faults via an automated monitoring system 24 hours
per day, 365 days per year which will be supported by a manual monitoring
process during regular working hours.
Z4P shall ensure that its technical support centre shall be available:
o by phone during UK business hours (9.00 am to 5.30 pm UK time); and
o on call 24 hours per day, 365 days per year.
Z4P shall inform TWM via telephone, of all actual and potential faults leading
or that may lead to any Content Unavailability (and confirm such details by
43
e-mail), as soon as is practicably possible, but in any event within 1 hour of
the occurrence of such fault. The e-mail shall include details of the numbers,
locations, equipment and systems affected, when the service was last accessed
correctly, and any error messages and hardware or network information if
relevant. Z4P shall ensure that both the service impact and an estimate as to
the expected length of the outage shall be included in the e-mail. Z4P shall
send further e-mails to TWM as further information in connection with the fault
becomes available, until such time as full service without any fault is
restored. Z4P shall also send an e-mail to TWM confirming the restoration of
service.
Should Content Unavailability exceed 24 hours, details of the fault and an
action plan for resolution should be escalated to the relevant project managers
at both TWM and Z4P.
5. Common Responsibilities
5.1 Service Management Fault Categories
The priority of any problem shall be determined solely by the impact of the
problem upon Digital Subscribers. Priority will not be granted to any particular
situation, person, software or hardware and the categorisation of the fault
shall be dependant only upon the impact the problem is having, or will have on
the Channels in terms of Digital Subscriber satisfaction.
TWM's problem criteria are listed below with internal targets for resolution
once the problem is notified by TWM to Z4P.
--------------------------------------------------------------------------------------------------
Priority 1 Loss of Critical Service impacting more than 10,000 Target
Consumer, Business or Internal Customers and or any breach Resolution Time:
(or suspected Breach)
of Security. 4 Hours
Loss of Critical Service affecting more than 1,000
but up to 10,000 Consumer, Business or Internal
Customers.
Major Site / Service unavailable
OFTEL / Legal Requirement
1 of top 100 Customers / VIP Customers
Content Removal
Priority 2 Loss of service affecting 500 to 1,000 Consumer, Business or Target
Internal Customers Resolution Time:
Severe Loss of Service, Customers are severely impacted by 8 Hours
fault
Partial Loss of building or service
--------------------------------------------------------------------------------------------------
For the avoidance of doubt, the parties will make reasonable endeavours to
44
resolve individual problems as categorised in the above internal target times
shown, but are unable to give any guarantee or commitment that such time scales
can be met.
5.2 Force Majeure
Notwithstanding any other provision of this SLA, in the event that any fault
hereunder is a result of a Force Majeure Event (as defined in the Agreement),
the obligations regarding the reporting and resolving of such fault within
certain time periods as set out in this SLA shall not be binding upon the
Parties and the Parties shall not be liable in the event that such time limits
are not met. Notwithstanding the provisions of this paragraph, each Party shall
use all reasonable endeavours to inform the other of those faults contemplated
by this SLA as they occur and to remedy the fault notwithstanding the Force
Majeure Event, in both cases within the time limits set out herein.
6. Z4P's responsibilities
6.1 Z4P shall ensure that Content Unavailability shall be no greater than 5%
in each calendar month during the Term. "Content Unavailability" means the
cumulative total time that the Content (in whole or part) is not
distributed on any or all distribution platforms in any calendar month as
a result of faults in the Content, the Z4P Equipment and/or the Software
supplied by Z4P and/or as a result of other acts and/or omissions of Z4P
(other than Planned Content Unavailability).
6.2 "Planned Content Unavailability" means the non distribution of the Content
from any distribution platform provided that: (i) TWM has been provided
with written notice of such non distribution at least ten days in advance
of such non distribution; and (ii) Z4P informs TWM's commercial manager
and technical account manager by telephone, confirmed by e-mail, of:
o the reason for the Planned Content Unavailability;
o the Planned Content Unavailability date and time; and
o the likely duration of the Planned Content Unavailability.
6.3 Content Unavailability with less than 10 days written notice will be
deemed to be a fault, and will be handled as such in accordance with this
SLA and will contribute to Content Unavailability.
6.4 Z4P shall use best endeavours to ensure that Planned Content
Unavailability shall not exceed 24 hours in any calendar month.
7. Z4P Reporting
Following a reasonable request from TWM, Z4P shall use all reasonable endeavours
to provide to TWM, in a format to be agreed between the Parties, a written
report setting out: (i) the amount of Content Unavailability in respect of that
period; and (ii) the amount of Planned Content Unavailability in respect of that
period.
45
SCHEDULE 10
Applicable Regulation and Codes
SSSL Guidelines in relation to Fixed Odds Services
SSSL Policy towards fixed odds games products/gaming on the DTH Platform
This document sets out Sky Subscribers Services Limited ("SSSL")'s updated
policy towards the making available of 'play for real' fixed odds games products
or gaming products on the DTH platform. It has been formulated under the current
legislation and following discussions with the Gaming Board for Great Britain
concerning the potential application of the terms of the settlement with the
Association of British Bookmakers (ABB) announced on 19 November 2003 in the
fixed odds betting terminal (FOBT) test case to interactive television.
1. 'Gaming' within the definition of the Gaming Act of 1968 cannot legally be
operated as an interactive service on the DTH platform (since it is not
being conducted on 'licensed premises').
2. The development of 'fixed odds games' following the 49's case has given
rise to a range of products that are referred to as `games' but in fact
constitute `betting' or `wagering' on a chance event. Such 'fixed odds
games' rely upon 'events' generated by a random number generator (RNG) in
respect of which the viewer xxxxxx with agreed pay-outs depending upon the
amount wagered and the outcome of the event. Certain of these products
closely resemble (and may even appear the same as) games offered within
licensed casinos.
3. Despite the settlement of the action in the FOBT case, there remains a
degree of uncertainty as to the legality of all such products. The initial
policy was based on discussions with the Gaming Board and legal advice
taken prior to its introduction on 20 June 2003. Following further
discussions with the Gaming Board concerning the public policy concerns
that might lead it to institute legal proceedings as a result of fixed
odds games made available on the DTH platform, SSSL has revised its policy
towards 'fixed odds games' on the DTH platform.
4. Accordingly, as of 1 July 2004 the following approach will apply to the
offering of 'fixed odds games' on the DTH platform:
4.1 'Gaming' within the definition of the Gaming Act of 1968 will not be
permitted;
4.2 'Fixed odds games' that can properly be classified as 'betting' are
permissible. In order for a product to be classified as such (a)
there must be a bilateral risk taken by the punter and the
bookmaker; (b) the return must be clearly stated; and (c) HM Customs
and Excise must be collecting the 15% GPT in respect of such 'bets';
4.3 Where the operator of a service proposes to offer 'fixed odds games'
on the DTH platform the operator will be required to notify SSSL
46
which of the two alternative policies (Policy A and Policy B) below
that service is to operate under. Once an operator has chosen which
policy a service is to operate under it shall be entitled to change
that selection upon reasonable notice to SSSL. Controls will also
apply to links taking customers between services which operate under
one policy to services that operate under the other policy (see
Paragraphs 4.6 and 4.7 below).
4.4 Policy A
4.4.1 Policy A replicates the current policy and therefore states
that where a 'fixed odds game' is based upon a game authorised
(1) under the Gaming Clubs (Bankers' Games) Regulations 1994
(S.I. 1994/2899) (as amended) (2) or promoted in such a manner
that the viewer may believe he/she is participating in such a
game, such fixed odds games will not be permitted.
4.4.2 As under the current policy, where a 'fixed odds game' uses a
modified version of an 'authorised banker's game' (e.g. a
roulette wheel modified marginally) so that the actual game
would not, if played, comply with the 1994 Regulations (as
amended), this does not mean that such 'modified game' would
avoid the prohibition of Paragraph 4.4.1 above. If such a
'fixed odds game' is identifiable as a derivative of one of
the 'authorised banker's games' it cannot be made available on
the DTH platform under Policy A.
4.5 Policy B
4.5.1 Policy B similarly replicates the current policy but,
following the terms of the settlement of the FOBT case,
provides a limited derogation from the prohibition on 'fixed
odds games' which are based upon any game authorised under the
Gaming Clubs (Bankers' Games) Regulations 1994 (S.I.
1994/2899) (as amended) or promoted in such a manner that the
viewer may believe he/she is participating in such a game.
4.5.2 That limited derogation provides for a service on the DTH
platform to offer 'fixed odds games' which are based upon the
authorised banker's game roulette. A service operating under
policy B will be permitted to offer a 'bet on roulette'
product provided that all 'fixed odds games' products included
within that service (i.e. not just the 'bet on roulette'
products) adhere to the following conditions:
o No component of a roulette-based 'fixed odds game' is
broadcast on the main audiovisual feed of any television
(1) Section 13(1) of the Gaming Xxx 0000 prohibits the playing of bankers'
games and games of unequal chance on premises licensed under that Act.
Section 13(2) however, authorises the making of regulations to provide
that this prohibition shall not have effect in relation to games specified
in the Regulations.
(2) Meaning currently Roulette, Dice (craps), Baccarat, Blackjack, Casino Stud
Poker, Super Pan 9, The Big Six, Sic Bo and Three Card Poker
47
channel from which the service is accessed (i.e. images
of a roulette wheel (or similar) can only be shown once
a customer has invoked an interactive application).
o Each product provides a maximum payout (i.e. including
any returned winning stake) per single transaction of
(pound)500 or less.
o Each product limits stakes to (pound)15 per bet and
(pound)100 per single transaction.
o The following bet process must be adhered to:
> customers must make a positive selection;
> customers must choose a stake;
> the odds must be clearly visible at time of the
customer making his/her selection;
> customers must be required to select a 'start' or
'bet' button/icon; and
> the result of each bet is to be shown within the
service immediately upon determination of the
relevant event.
o The minimum cycle time for any product between the
customer logging in, selecting his/her bet(s) and
settlement is not to be less than 30 seconds. When
customers are betting from their original or previously
replenished stake or from accumulated winnings, the
minimum cycle time for this type of transaction is not
to be less than 20 seconds.
o Odds for each betting event are to be clearly displayed
within the service.
o An on-screen balance meter allowing customers to track
winnings/losses per session must be available as part of
the service.
o The service must allow customers to `cash-in' at any
time following the completion of each betting event and
to set a limit on the time they play and on the amount
they wish to spend per session. o
o Clear help pages must be presented as part of the
service, including contact information for GamCare and
warnings on excessive gambling. Access to such help
pages must be available at all times by use of
button/icon.
48
4.6 It will be permissible for operators of 'fixed odds games' services
to operate two services on the DTH Platform under the terms of this
SSSL Policy, one under 'Policy A' and the other under 'Policy B'. It
will also be permissible for a service operating under 'Policy B' to
offer only a 'bet on roulette' product and not any other type of
'fixed odds games' product. However, SSSL will not permit operators
to blur the distinctions between the two types of service or to
claim that they are operating two distinct services whilst
presenting the customer with a single service.
4.7 Accordingly operators will only be permitted to offer services under
both 'Policy A' and 'Policy B' provided that SSSL is satisfied that
a clear distinction is maintained between the two types of service
at all times. As a minimum, and without limitation, this will
involve:
4.7.1 a prohibition on an individual 'fixed odds game' offered as
part of one type of service being promoted on a service which
operates under the 'other' policy type. Instead, and subject
always to Paragraph 4.7.2 below, services operating under one
policy type shall only be promoted within services operating
under the 'other' policy type by reference to their service
name(s);
4.7.2 the service name of a service operating under one policy type
not being promoted within a service operating under the
'other' policy type more prominently than individual 'fixed
odds games' offered as part of that second service; and
4.7.3 customers being transferred across (directly or indirectly)
from a service operating under one policy type to a service
operating under the 'other' policy type being required to 'log
in' separately to the second service in the same manner as if
they had accessed that second service from an unrelated
service.
Sky Subscribers Services Limited
30 June 2004
49
Gamcare Code for Interactive TV Services
Introduction
It is anticipated that new gambling regulation will impose a duty on gambling
operators to implement socially responsible measures across all their online
activities. This document has been developed by GamCare and Sky Interactive to
identify and begin the introduction of socially responsibly measures to all
gambling services on the Sky Interactive platform.
Implementation will be undertaken over a reasonable period so that each operator
has time to introduce all measures during the ordinary course of their service
development plans. The aim is to achieve full implementation by the time new
regulation is passed. Neither Sky Interactive nor GamCare can currently compel
operators within Sky Active to adopt these measures. However, Sky Interactive
and GamCare will kitemark services which meet criteria.
Both Sky Interactive and GamCare recognise this is a working document and
subject to modification. For example, socially responsible criteria will be
amended to concord with new regulation; and criteria may need to be amended to
meet the constraints of Sky Interactive technology that is fundamentally
different to traditional Internet distribution. Both parties consider this
document to be best practice at the time of issue.
1. Age Verification
1.1 Operators must take steps to ensure the age and identification of every
new customer. This is especially important in all cases where the method
of payment does not itself constitute an age check (e.g. debit cards). In
these cases, services should either employ the use of a reliable
electronic checking system or undertake proof of age and ID through visual
checks of documents such as driving licence or passport.
1.2 If there are no effective age verification systems in place, the service
should not accept payments from cards that are available to those under
the age of 18.
1.3 Age verification should not only take place on the interactive service,
but also on the operator's internet site if customers can use that account
to xxxxxx on the interactive service without any further checks.
1.4 All services should clearly display an "over 18's only" sign on their main
page.
1.5 Through the registration process there should be a clear message about
under age play and steps the operator may take to check age.
2. Advertising and Promotional Material
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2.1 Advertising and promotions must be compliant with the relevant regulatory
and advisory codes of practice.
2.2 Advertising should not target those under the age of 18. This includes not
just content but consideration around the placement of advertising too.
2.3 Advertising should give a balanced message with regards to winning and
losing.
2.4 Customer should not be encouraged to chase their losses or re-invest their
winnings.
2.5 At no time should it be suggested that gambling is a means of getting out
of financial difficulty.
3. Customer led spend limits
3.1 Whilst operators will set their own limits on player spend and even vary
those limits on an individual basis, they should also enable the customer
to determine their own spending limits.
3.2 Services should enable customers to set limits on total deposits per day,
per week or per month.
3.3 When a player reaches their limit, the operator will be responsible for
ensuring that no further bets are accepted on the customers' account.
3.4 The customer should be able to reduce their spending limit within the
service at any time.
3.5 If customers want to increase their spending limit, they will be required
to phone the operators' call centre. The new limit will be effective 24
hours after the phone call.
4. Self-exclusion
4.1 A player should be able to exclude themselves from making any bet on their
account. In practise this will mean the account is closed and any balance
transferred to their originating debit or credit card.
4.2 Information regarding the self-exclusion policy and process must be
clearly explained within a responsible gambling/player protection page.
Once a player has requested self-exclusion, they should not be permitted to undo
their request for a period of 6 months. This also requires the operator to take
reasonable steps to prevent the customer registering again during this period
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5. Social Responsibility/Player Protection Information
5.1 The service main page should contain the logo/certification xxxx xxxx of
the operators' social responsibility partner.
5.2 The service main page should also contain a link to both a player
protection page and responsible gambling page. These can either be two
separate pages or one page with information combined. Content is defined
below.
5.3 The responsible gambling page should contain:
a) a suitable message about the importance of responsible gambling;
b) advice on responsible gambling, a statement supporting social
responsibility and identification of the operators' social
responsibility partner;
c) a list of customer protection measures that are available on the
service and a link to that page (if separate to the responsible
gambling page);
d) the GamCare (or other similar organization) telephone helpline
number;
e) a message regarding restriction of access to minors;
f) when established, details, or a link to a page with details, of the
operators' social responsibility policy.
5.4 The customer protection page information should contain:
a) protection measures available to the customer if they wish to use
them.
b) measures should include customer-led spend limits together with
self-exclusion instructions.
5.5 The deposit page should contain a reminder to the customer about the need
to xxxxxx responsibly, with a link to the responsible gambling/player
protection page.
6. Reality checks within game play
6.1 It is vital that where a game allows continuous, interactive and rapid
gambling without a natural break, there should be mechanisms implemented
that help the customer to monitor their spend and the amount of time they
52
have played so they can make conscious decisions on whether to stop or
continue. Current practice is to display the telephone tariff rate on
screen. Within the technological constraints imposed by the Sky
Interactive platform and their own online systems, operators will develop
a mechanism that provides further protection. This mechanism should act as
an effective reality check that will allow the customer to reflect on the
desire to continue playing or not. Such a mechanism should remind the
customer of their total online cost (or the tariff rate and their online
duration) after a specified period of time and at regular intervals
thereafter.
6.2 The currency unit of the amount wagered should be clearly displayed on the
games screen as well as the denomination.
6.3 No game should be quicker than 5 seconds between plays.
6.4 The operator should seek guidance from relevant regulatory bodies on the
implementation of suitable reality checks within each game.
7. Customer Account
7.1 The customer should only be allowed to register one card or other form of
payment on their account. If they need to change their payment method or
details, they will be required to phone the operators' call centre.
7.2 Customers will only be able to register one account on a service rather
than several accounts with similar details. Whilst it is recognised that
this is not always possible to prevent, operators should take reasonable
steps to review new accounts to check whether similar accounts already
exist and take necessary action. The operator's policy and rules should
make the opening of additional accounts by an existing customer against
its terms and conditions.
7.3 Customers should be able to access their recent account history including
all deposits, withdrawals and bets.
8. Free Play
8.1 Free play game screens should display the same links to responsible
gambling/ player protection pages as `play for cash' game screens.
8.2 At a minimum, the customer will be required to enter their date of birth
(which must be over 18) to `play for free'.
8.3 There should be a clear message that customers must be over 18 to "play
for free.
8.4 The frequency of "winning" must be the same as `play for cash' games.
9. Training
The operator should ensure that their customer service teams are trained on
issues of social responsibility and problem gambling. Training should be
refreshed on a yearly basis.
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10. Auditing/Consultancy
10.1 The service should be audited every year to ensure compliance to the
social responsibility code of practise for interactive gambling. This
could be carried out by the regulator, Sky Interactive or the operator's'
social responsibility partner.
10.2 Before launching a new service that falls outside these guidelines, the
operator should consult with the relevant regulatory body.
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ASA code in relation to Fixed Odds Services
BETTING AND GAMING
54.1 The gaming industry and the advertising business accept responsibility for
ensuring that marketing communications contain nothing that is likely to
lead people to adopt styles of gambling that are unwise.
54.2 Marketing communications should be socially responsible and should not
encourage excessive gambling.
54.3 Care should be taken not to exploit the young, the immature or those who
are mentally or socially vulnerable.
54.4 Marketing communications should not be directed at people under 18 through
the selection of media, style of presentation, content or context in which
they appear. No medium should be used to advertise betting and gaming if
more than 25% of its audience is under 18 years of age.
54.5 People shown gambling should not be, nor should they look, under 25.
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Ofcom codes / guidelines in relation to Fixed Odds Services
[to be attached]
56
SCHEDULE 11
Merchant Acquirer costs
Payments on to the client account
- Debit cards : 52p per payment
- Credit cards: 2.19% plus 10p per payment
Withdrawals from the client account
- Debit cards (Visa and Delta): (pound)1.40 per withdrawal
- Debit cards (Maestro): 52p per withdrawal
- Credit cards: (pound)1:40 per withdrawal
57
