EXHIBIT 10.2
POKER LICENSE AGREEMENT
ENTERED INTO THIS 31ST DAY OF MARCH, 2003
BETWEEN
POKERSOFT CORPORATION A.V.V. ('LICENSOR')
-----------------------------
A BODY CORPORATE WITH OFFICES IN CURACAO. NVV.
AND
SKILL XXXXX.XXX INC. ("LICENSEE")
---------------------
A BODY CORPORATE WITH OFFICES AT
#000-0000 XXXX XXXXXXX XXXXXX,
XXXXXXXXX. XXXXXX.
AND
XXXXX.XXX INC. ("XXXXX.XXX")
A BODY CORPORATE WITH OFFICES AT
#000-0000 XXXX XXXXXXX XXXXXX,
XXXXXXXXX. XXXXXX.
WHEREAS
- Licensor has developed a proprietary poker software program;
- Licensor is in the business of selling on-line gaming software
licenses and wishes to license the Poker Software Program; and
- Licensee is desirous of purchasing a poker license to operate an
internet poker card room (which can also be used for Skill-Poker) and
gaming site.
NOW THEREFORE in consideration of the mutual promises, covenants and
obligations contained herein, and for valuable consideration, receipt of which
is hereby acknowledged, the Licensor hereby agrees to provide to Licensee a
License to operate a poker card room on a non-exclusive basis on the terms and
conditions outlined in this Agreement;
1. DEFINITIONS
-----------
AFFILIATION Shall mean a gateway link from a third party web-masters
web-site to licensees Poker web site via the Internet.
AGREEMENT Shall mean this Poker License Agreement.
CARD ROOM Shall mean the poker card room to be operated by the
Licensee using the URL referred to in Schedule 'B'.
1
CREDIT CARD
PROCESSOR Shall mean a company that processes credit card
transactions.
CURRENCY Unless otherwise indicated, all dollar amounts are
expressed in United States Dollars.
END USER Shall mean an individual the Licensee permits to access and
utilize, but not to further distribute, the software.
GROSS
REVENUE
LICENSE Shall mean the limited right to use the software program
provided to the Licensee by the Licensor.
LINK Shall have the same meaning as an Affiliation.
HARDWARE Shall mean all the necessary computers, servers, routers,
cabling, monitors, hard-drives, back-up systems and other
equipment as determined by the Licensor in its absolute
discretion that may be required to properly store,
distribute and run the Software.
RAKE
ROYALTY FEE Shall mean the fees payable to Licensor by Licensee
pursuant to Schedule "E".
SOFTWARE Shall mean the object code version of the computer software
program provided to Licensee by Licensor.
2 THE SOFTWARE
------------
The Licensor hereby agrees to provide to Licensee a License to use
Licensors Software in order to operate a poker card room on a non-exclusive
basis as follows:
(a) THE LICENSE
Licensor hereby grants to the Licensee a License to use the
Licensors proprietary software program, subject to the provisions
of sub-paragraph 2(c) below (the "License") for use of the
Licensors current version of its web based management system and
downloadable client software and server software which interfaces
with a Credit Card Processing System. The Licensor shall have the
right at any time, at their discretion, to make changes and
upgrades, wholly or partially.
(b) HARDWARE
(i) The Software to be provided by the Licensor shall load and
operate on a minimum computer hardware equipment
configuration as listed below which shall be purchased by
the Licensee.
2
GAME SERVER:
------------ ------------------------------------------------------------------
ITEM SPECIFICATIONS
------------ ------------------------------------------------------------------
Processors Dual (2) 1.4GHz Intel based processors
Memory 2Gig of RAM
10Gig of disc space on each drive (minimum 3 hot swap hard
Hard drive drives)
Network Card 100 Mbps
------------ ------------------------------------------------------------------
ORACLE DATABASE SERVER:
------------ ------------------------------------------------------------------
ITEM SPECIFICATIONS
------------ ------------------------------------------------------------------
Processors Dual (2) 1.4GHz Intel based processors
Memory 2Gig of RAM
18Gig of disc space on each drive (minimum 8 hot swap hard
Hard drive drives)
Network Card 100 Mbps
------------ ------------------------------------------------------------------
ORACLE BACKUP SERVER:
------------ ------------------------------------------------------------------
ITEM SPECIFICATIONS
------------ ------------------------------------------------------------------
Processors Dual (2) 1.4GHz Intel based processors
Memory 2Gig of RAM
10Gig of disc space on each drive (minimum 3 hot swap hard
Hard drive drives)
Network Card 100 Mbps
------------ ------------------------------------------------------------------
MANAGEMENT SYSTEM SERVER:
------------ ------------------------------------------------------------------
ITEM SPECIFICATIONS
------------ ------------------------------------------------------------------
Processors 1000MHz Intel based processor
Memory 512Gig of RAM
Hard drive 10Gig of disc space on each drive (min 2 hot swap hard drives)
Network Card 100 Mbps
Use Player Services (Java/Tomcat)
------------ ------------------------------------------------------------------
WEB/PLAYER SERVICES SERVER:
------------ ------------------------------------------------------------------
ITEM SPECIFICATIONS
------------ ------------------------------------------------------------------
Processors 1000MHz Intel based processor
Memory 512MB of RAM
Hard drive 10Gig of disc space on each drive (min 2 hot swap hard drives)
Network Card 100 Mbps
Player Services (Java/Tomcat), Websites (several -
Use apache/php/mySQL)
------------ ------------------------------------------------------------------
SUGGESTED OPTIONAL HARDWARE
---------------------------
This hardware is not required by the poker software but is recommended.
3
FIREWALL SERVER:
------------ ------------------------------------------------------------------
ITEM SPECIFICATIONS
------------ ------------------------------------------------------------------
Processors 1000MHz Intel based processor
Memory 512MB of RAM
5Gig of disc space on each drive (minimum 2 hot swap hard
Hard drive drives)
Network Card 100 Mbps
Software Iptables
------------ ------------------------------------------------------------------
DNS SERVER (FIREWALL BACKUP, SYSTEM MONITORING):
------------ ------------------------------------------------------------------
ITEM SPECIFICATIONS
------------ ------------------------------------------------------------------
Processors 1000MHz Intel based processor
Memory 512MB of RAM
5Gig of disc space on each drive (minimum 2 hot swap hard
Hard drive drives)
Network Card 100 Mbps
Software BIND 9
ADDITIONAL HARDWARE:
------------ ------------------------------------------------------------------
Master Power
Switch Remotely administrated
Network
witch With VLAN capabilities
------------ ------------------------------------------------------------------
4
RECOMMENDED HARDWARE
------------- -------------- ------------------------------------------- --------
Item Use Description Quantity
------------- -------------- ------------------------------------------- --------
SERVERS
------------- -------------- ------------------------------------------- --------
ADMIN SERVER Compaq ProLiant DL360 G2 Intel(R)
and Pentium(R) III Processor
WEB/PLAYER 1.40GHz/133 Rack Model (256MB)
SERVICES - Intel(R) Pentium(R) III processor
SERVER could 1.40GHz
each use one - 256MB Total SDRAM 133MHz
of these (2x128MB) included
servers - Two 1" Wide Ultra3 SCSI Hot Plug Drive
Bays
- Integrated Smart Array 5i Controller
- 18.2 GB Pluggable Ultra3 SCSI 10,000
rpm Universal Hard Drive
- High Speed IDE Low Profile CD-ROM -
Included
- (2) NC7780 Gigabit Server NICs
embedded
- SmartStart & Insight Manager
- Standard Quick Deployment Rails
- 3-Year Limited Warranty 2
Memory 256MB Total SDRAM 133MHz 2
Memory 512MB Total SDRAM 133MHz 2
Disks 18GB Ultra3 SCSI Hard Drive (10,000
rpm) 2
------------- -------------- ------------------------------------------- --------
GAME SERVER ProLiant DL380 G3 Intel(R) Xeon(TM)
and the Processor 2.80GHz - Rack Model
ORACLE - Intel(R) Xeon(TM) Processor
BACKUP 2.80GHz/512KB
SERVER could - 512MB Base Memory (2x256MB) -
each be one of included
these servers. - Integrated Smart Array 5i Plus
Controller
- Hot Plug Drive Cage-Ultra3 (5 x 1" and
1 x 1.6")
- 18.2 GB Pluggable Ultra3 SCSI 10,000
rpm Universal Hard Drive
- Two (2) Compaq NC7781 PCI-X Gigabit
NICs (embedded) PCI 10/100 WOL
- Sliding Rails and Cable Management
Arm
- SmartStart & Insight Manager 7
- 3-Year Limited Warranty 2
Memory 512MB Total SDRAM 133MHz 6
Disks 18GB Ultra3 SCSI Hard Drive (10,000
rpm) 2
Disks 36GB Ultra3 SCSI Hard Drive (10,000
rpm) 3
Processor Intel(R) Xeon(TM) Processor 1
2.80GHz/512KB
5
Item Use Description Quantity
------------- -------------- ------------------------------------------- --------
ORACLE SERVER Compaq ProLiant ML530 G2 Intel(R)
Xeon(TM) 2.80 GHz/512KB Processor
(with 400 MHz system bus) 2P Model -
Tower (Rack mountable ?)
- Two (2) Intel(R) Xeon(TM) Processors
2.80GHz
- 1GB Base Memory (2x512) - included
- Integrated Dual Wide-Ultra3 SCSI
Adapter
- (2) Standard 6 x 1" Drive Cages (Holds
up to 12 x 1" Hard Drives)
- 18.2 GB Pluggable Ultra3 SCSI 10,000
rpm Universal Hard Drive
- Embedded Compaq NC3163 Fast
Ethernet NIC PCI 10/100 with WOL
(Wake On LAN)
- Two (2) Redundant 600W Hot
Pluggable Power Supplies
- Redundant Hot-Plug Fans - Included
- SmartStart & Insight Manager
- 3-Year Limited Warranty 1
Memory 512 Base Memory 4
Disks 18.2 GB Pluggable Ultra3 SCSI 10,000
rpm Universal Hard Drive 8
------------- -------------- ------------------------------------------- --------
FIREWALL Compaq ProLiant XX000 Xxxxx(X)
XXX XXXXXX Xxxxxxx(X) III Processor 1.266GHz/133
Rack Model (128MB) 18.2GB SCSI with
CD/Floppy
- Intel(R) Pentium(R) III Processor
1.266GHz
- 128MB Total SDRAM 133MHz (1x128)
- Included
- Integrated Single Channel Wide-Ultra2
Controller - Included
- Two 3.5" x 1" SCSI Non-Hot Plug Drive
Bays
- 18.2GB Ultra3 SCSI 10,000 rpm Hard
Drive
- CD-ROM/Diskette Assembly
- (2) NC3163 PCI 10/100 WOL -
Embedded
- Standard Quick Deployment Rails
- SmartStart & Insight Manager 2
6
Item Use Description Quantity
------------- -------------- ------------------------------------------- --------
- 3 years parts, 1 year labor, 1 year on-
site warranty
Memory 256MB Total SDRAM 133MHz 2
Memory 512MB Total SDRAM 133MHz 1
Disks 18GB Ultra3 SCSI Hard Drive (10,000 2
rpm)
MASTER SWITCH AP9211 1
CISCO CATALYST 2950 12PORT NMS
SWITCH ACCS10/100 SWITCH 1
(ii) Licensor shall retain the right to make changes to the above
configuration as necessary, at its sole discretion .
(c) USAGE
(i) The Licensor hereby grants to the Licensee, on a
non-exclusive basis, the right to use a copy of the Software
utilizing a URL in a legal jurisdiction for its web site.
(ii) The Licensee shall not copy or distribute or cause to be
copied or distributed the Software for any purpose except as
provided herein, without the written consent of the
Licensor.
(iii) The Licensor will provide the Licensee with an affiliation
program that will enable Licensee to link third party web
sites to their Poker card room. The program will provide the
Affiliates with the ability to check stats and track their
players accounts
(iv) The Licensee shall not (and shall not authorize or permit
any third party), to reverse engineer, de-compile or
disassemble the Software or attempt to do so. If the
Licensee becomes aware of the source code of the Software,
it shall not make use of or disclose same to any party.
(v) The Licensor shall have the right at any time, at their
discretion, to make changes and upgrades to the software
program, wholly or partially. However, the Licensee shall
have the right to refuse to accept the software changes for
their Card Room.
(d) TRANSACTION PROCESSING SYSTEMS. Licensor shall install a
transaction processing system that will allow Licensee's
customers to deposit funds via the Internet through the use of
credit cards accepted by the Credit Card Processor. Alternative
methods of payment, such as wire transfers, money orders, Western
Union, Netteller, and Firepay may also be available but Licensee
shall have no ownership right to the processing system.
7
(e) SOFTWARE OWNERSHIP. Except for the License rights granted to the
Licensee in terms hereof, the Licensor retains all right, title
and interest, including the Intellectual property rights, in and
to the Software provided to the Licensee but not including the
Skilled-Poker software as developed by Licensor for the Licensee
subject to the conditions set out in clause14 of this agreement.
(f) NON-EXCLUSIVE AGREEMENT. Licensee acknowledges that this is a
non-exclusive agreement and that Licensor will sell Poker
licenses to as many other parties as are willing to enter into a
licensing agreement with Licensor but does not include Skill
Poker subject to the conditions set out in clause 14 of this
agreement.
3 DELIVERY AND INSTALLATION
-------------------------
(a) DELIVERY SCHEDULE. The Licensor shall deliver or cause to be
delivered the Licensor's current Client Server programs within 45
days from the date the graphics have been completed.
(b) SITE PREPARATION AND INSTALLATION. The Licensor shall load and
certify the installation of the Software on servers provided by
the Licensee within 15 days from the delivery of the client
server. The Licensee shall reimburse the Licensor for any
out-of-pocket expenses expended at the request of the Licensee.
4 CONDITIONS OF LICENSE
-----------------------
(a) OWNERSHIP OF SOFTWARE. All right, title and interest in and to
the Poker software (except for Skill-Poker subject to clause 14
of this Agreement), and any copies thereof and all documentation,
source code and logic, which describes and/or composes such
software remains the sole and exclusive property of Licensor or
its agents, as the case may be, pursuant to the terms of
Licensor's agreement with its software supplier.
(b) FORCE MAJEUR. Except as otherwise specifically provided herein,
neither Licensor nor Licensee and/or their agents shall be
responsible for failure of performance due to causes beyond their
control, including without limitation, work stoppages, internet
connection going down, software hacking that shuts down Licensees
site, fires, civil unrest, riots, rebellion, acts of God and
similar occurrences.
(c) POKER CARD ROOM FORMAT. The Poker card room format may be changed
by Licensee with Licensors written approval at Licensee's sole
cost.
(d) ACCESS TO SOURCE CODE. The Licensor shall control possession of
the Source Code and regulate distribution thereof but shall
provide Licensee with limited access. Licensee shall be
prohibited from any re-distribution of the Source Code.
8
5 TERM
----
TERM. This Agreement shall commence and be deemed effective on the date
when fully executed (the "Effective Date"). This Agreement shall remain in
effect for a period of 5 years (the "Term) from the Effective Date and may
be renewed at the option of the Licensee for a further period of 5 years.
There will be no further Initial Fees due or payable for the privilege of
extending the term. The Royalty fees shall continue into the new term.
6 PAYMENTS AND FEES
-------------------
(a) LICENSING FEE. Licensee and/or Xxxxx.xxx shall pay Licensor a one
time, non-refundable fully earned fee equal to the consideration
specified in Schedule "C" hereto as the "Initial Fee" in consideration
of Licensor's consent to Licensee to use the Licensors Software
Program. The Licensor shall complete a Schedule G hereto to the
satisfaction of the Licensee.
(b) ROYALTY FEES. Licensee shall pay to Licensor a continuing monthly
Royalty fee (which includes technical support costs) as set out in
Schedule "E". Royalty fees are payable to Licensor as a percentage of
Gross Revenue from Skill Poker Tournaments and Rake from regular Poker
and Tournament games. Royalty payments shall be made within 30 days
after the end of each month. In the event the Licensee is at any time
in default of payment of the Royalty fees for more than 15 days,
Licensor may immediately cancel this agreement without further notice
unless Licensor in writing gives the Licensee an extension. In the
event a default occurs more than 2 times in any quarter, the Licensor
shall have the right to cancel this agreement without further notice.
(c) PAYMENTS AFTER TERMINATION. Upon termination of this Agreement for any
reason other than the default of the Licensor, the Licensor shall be
entitled to immediate payments and partial payments that occurred
prior to the date of termination and for which the Transferor has not
yet been paid.
(d) GOVERNMENT LICENSING FEES. Licensee will be responsible for any
government licensing fees.
7 TERMINATION
-----------
(a) FAILURE TO PAY FEES. Licensor may terminate this Agreement at any time
upon 10 days written notice if Licensee is more than 15 days in
arrears in paying any monthly fees due or owing to Licensor after same
becomes due and owing under the terms of this agreement.
(b) TERMINATION FOR BREACH. Licensee may terminate this Agreement at any
time upon 10 days notice if Licensor is materially in breach of this
Agreement for a period of more than 15 days. Licensor shall be allowed
to cure the breach during the notice period, thus pre-empting
Licensee's ability to terminate the Agreement in accordance with this
section.
9
(c) ACTS OF INSOLVENCY. The Licensor may terminate this Agreement by
written notice to the Licensee if the Licensee becomes insolvent,
suffers or permits the appointment of a receiver for its business or
assets, becomes subject to any proceeding under any bankruptcy or
insolvency law whether domestic or foreign, or is wound up or
liquidated, voluntarily or otherwise. If Licensor becomes insolvent,
is placed in receivership, or in Bankruptcy, this Agreement will
terminate and all software shall be returned to the Licensor.
(d) CUSTOMER INFORMATION. Upon termination of this Agreement, all Customer
Information shall remain the sole and exclusive property of Licensee.
(e) RETURN OF SOFTWARE. Should this Agreement be terminated by Licensor on
account of Licensee's default pursuant to this Agreement, the Licensor
may repossess any and all Services by directing Licensee in writing to
deliver all records, notes, data and memoranda of any nature, that are
in their possession or under their control, and return the Software
Source Code and any other Software programs, that Licensor provided
Licensee, within fifteen (15) days to the Licensor and at Licensee's
expense to the nearest convenient location of the Licensor. Should
Licensee terminate this Agreement the same terms and conditions as
above apply for return of Software.
(f) FORCE MAJEUR EVENT. In the event that either party is unable to
perform any of its obligations under this Agreement, or to enjoy any
of its benefits because of natural disasters, or communications line
failure not the fault of the affected party (hereinafter referred to
as a "Force Majeure Event"), the party who has been so affected shall
immediately give notice to the other party and shall do everything
possible to resume performance. Upon receipt of such notice, all
obligations under this Agreement shall be immediately suspended. If
the period of nonperformance exceeds fifteen (15) days from the
receipt of notice of the Force Majeure event, the party whose ability
to perform has not been affected may, by giving written notice,
terminate this Agreement.
(g) ILLEGAL ACTS. Licensee undertakes not to perform any illegal actions
or transactions on Licensees Poker card room web site. Any adult
content and/or proof of money laundering will be regarded as illegal
acts for purposes of this agreement. Upon written Notice from the
Licensor that Licensee is committing an illegal act, Licensee shall
immediately take action to terminate the illegal act. If not cured
within 5 days, Licensor may, at its sole option, terminate this
agreement without further notice. In the event the Licensee and/or
their Officers and/or Directors are convicted for any felony (other
than for operating a Poker card room), Licensor shall have the right
to terminate this agreement without notice.
8 INDEMNIFICATION
---------------
(a) LIMITATION ON INDEMNIFICATION. Except as otherwise provided herein,
Licensee acknowledges and agrees that neither Licensor nor its agents,
nor any of their respective members, shareholders, directors,
officers, employees or representatives (collectively the "Licensor
Parties") will be liable to the Licensee or any of the Licensee's
customers for any special, indirect, consequential, punitive or
exemplary damages, or damages for lost profits or savings, in
connection with this Agreement, its performance or breach. If despite
10
the foregoing limitations, any of the Licensor parties should become
liable to Licensee or any other person (a "Claimant"), the maximum
aggregate liability of the Licensor Parties shall be limited to the
lesser of the actual amount of loss or damage suffered by Claimant or
the sum of Licensee's fees payable by the Licensee to Licensor for the
3 months prior to the loss.
(b) ACTIVITIES OF LICENSEE. Licensee shall indemnify, defend and hold
harmless, Licensor and its agents and all Licensor Parties (the
"Indemnified Parties") from and against all damages, losses, costs and
expenses (including actual legal fees and costs), fines and
liabilities incurred by or awarded against any of the Indemnified
Parties in connection with Licensee's activities under this Agreement,
including, without limitation, claims brought by a person using or
relying on any advice given or publication produced and distributed by
Licensee or by any Government Agency.
(c) DISRUPTIONS. Licensee acknowledges that from time to time, as a result
of hardware failure, software failure, hurricanes, natural disasters,
supplier failures, or acts of God, the services provided under this
Agreement may be temporarily disrupted. Licensee acknowledges and
agrees that neither Licensor, its agents nor any Licensor employees
will be liable to Licensee or any of Licensee's customers for any
special, indirect, consequential, punitive or exemplary damages, or
damages for loss of profits or savings, in connection with these
temporary disruptions.
(d) GOVERNMENT ISSUES. Licensor shall not be held liable for any damages
of any kind which may result from any government legislation or policy
which may affect or terminate this License or result in the Poker Card
Room being shut down.
9 CONFIDENTIALITY
---------------
Licensee shall not disclose the Confidential Information of Licensor to any
third party without the prior written consent of Licensor, nor shall
Licensee disclose the terms or contents of this Agreement to any third
party who is not bound to maintain the confidentiality between the parties
except where disclosure is required by SEC rules and regulations.
10 GOVERNMENT APPROVALS
---------------------
The Licensee warrants and represents that it has or will have obtained
prior to commencing any activities pursuant to this Agreement, all required
government approvals and permits as of the date of this Agreement in order
to use and/or operate the Software as provided herein and will ensure that
Licensee holds all required government approvals and permits in order to
use the Software in their Business, (including Internet gaming licenses),
and that they will maintain such approvals and permits throughout the term
of this Agreement.
11 OBLIGATIONS OF LICENSOR
-------------------------
(a) TO PROVIDE THE RESOURCES. Licensor shall provide the resources
(excluding the URL and Web Page Design) to enable Licensee to create
their own Poker Card room.
(b) TECHNICAL SUPPORT. Licensor shall provide Licensee with technical
support . Any emergency will be dealt with 24/7.
11
(c) REPAIRS. Licensor shall make all reasonable efforts to repair and
correct (in an expedient manner) any problems that may arise from time
to time which would cause Licensee to be unable to perform its
obligations under this Agreement. Licensor shall be contactable 24/7
to take urgent problem calls from the Licensee. The parties agree that
the calls must be of an urgent nature which would cover the following
instances:
a) The software has crashed
b) The software is not operating in a manner that would allow
players to play the game in a normal manner
(d) SKILL POKER SOFTWARE: Licensor has agreed to develop for Licensee, if
so requested, the software necessary for Licensee to operate a Skill
Poker game utilizing the criteria laid out in the Skill Poker
Inventions which Licensee has acquired from Blue Diamond International
Capital Inc. and more fully described in Patent Application
#60/393,736.
12 OBLIGATION OF LICENSEE
------------------------
(a) CUSTOMER/TECHNICAL SUPPORT. Licensee will provide their customers with
technical support on a 24 hour 7 days a week basis. Licensor will
provide software Technical support to Licensee.
(b) OVERALL GRAPHICS. Graphics for the Poker Cardroom shall be determined
by and implemented at the expense of Licensee.
(c) PAYMENT OF FEES. Licensee hereby undertakes to pay Licensor all fees
and royalties as due in terms of this agreement in a timely manner.
(d) PAYMENT FOR DEVELOPMENT OF SKILL POKER SOFTWARE. Licensee will pay
Licensor the costs of development of the Skill Poker software as
referred to in clause 11(c) above.
13 OPERATION OF SOFTWARE
-----------------------
(a) URL'S. Licensee may operate their Poker website only as a single
Domain only with the name specified in Schedule "B".
(b) WARRANTY. Licensor warrants that the Random Number Generator used by
the software for purposes of shuffling cards are generated in an
unbiased manner.
14 INTELLECTUAL PROPERTY
----------------------
Except as otherwise provided for herein, the following provisions shall
apply with respect to copyrightable works, ideas, discoveries, inventions,
applications for patents, and patents (collectively, "Intellectual
Property"):
(a) LICENSEE'S INTELLECTUAL PROPERTY
The Licensee shall not hold any interest in any Intellectual Property
except for
12
(i) Copyrights of the website for Graphic or Graphic Design created
by or for the Licensee; and,
(ii) The Skill Poker Software developed by Licensor for Licensee which
may not be copied by Licensor or licensed by Licensor to any
third party unless and until the patent described in Patent
Application #60/393,736 has been abandoned or refused.
(b) DEVELOPMENT OF INTELLECTUAL PROPERTY
Any items of Intellectual Property discovered or developed by the
Licensor (or the Licensor's employees) for the benefit of the Licensee
during the term of this Agreement, relating to Skill Poker, shall
automatically become the property of the Licensee but may be copied by
Licensor for re-sale any time after the patent referred to in Patent
Application #60/393,736 has been abandoned or refused.
15 ACCOUNTING
----------
(a) RECORDS. Licensee shall track and maintain statistical records of all
web site activity, transactions and xxxxxx placed in the poker card
room by Licensees customers which information will, at all times be
available to Licensor. Licensee will be provided with a confidential
access code to enable Licensee to access the report generator.
Licensee will provide to Licensor a copy of the confidential access
code to enable Licensor to also access report generators. Licensee
shall provide to Licensor at the end of each month a copy of the daily
deposit amount and the daily rake. Licensee acknowledges that Licensor
has access to the Poker data base but not to the players data base .
(b) ACCOUNTING REPORTS. Licensee shall provide weekly accounting reports,
as required and/or as requested by Licensor.
(c) ARCHIVE PERIOD. Licensee shall archive and maintain the accounting
information for a period of 1 year.
16 CUSTOMER DATA
--------------
DATABASE. Licensee shall maintain a database containing the Customer
Information. Licensee will provide Licensor with statistics on total
deposits, average player deposits , number of new players and number of
sign-ups or other information that Licensor may require to maintain records
and calculate Royalty fees.
17 THE GAMES
----------
Licensor and its agents shall determine the rake and betting limits
(excluding Tournaments) for the Poker tables from time to time in their
sole discretion which shall be competitive in relation to other poker card
room operators. The current xxxxx are set out in Schedule "F". Further,
Licensor shall provide various Poker games as described in Schedule "A".
Licensor will endeavor to provide new and exciting Poker games on a
continuous basis.
13
18 REGULATORY ISSUES
------------------
Licensee shall be solely responsible for determining the jurisdiction in
which it chooses to accept and/or to receive xxxxxx. Licensee will not take
money xxxxxx from the citizens of jurisdictions specified by Licensor.
19 WEB SITE
---------
Licensee shall construct and maintain the entire website where the Software
is to be made available to Licensee's customers. The single Uniform
Resource Locator ("URL") must be provided by Licensee to market their Poker
Card Room.
20 RELATIONSHIP OF PARTIES
-----------------------
Except as specifically provided herein, nothing contained in the Agreement
shall be construed to constitute either party as a partner, employee, or
agent of the other, nor shall either party have any authority to bind the
other in any respect, it being intended that each shall remain an
independent contractor responsible for its own actions.
Furthermore, it is understood and agreed between the parties that for a
period of two years from the effective date, the Licensee shall not employ,
hire or contract with or in any manner have any of the Licensors employees
(including consultants actively working for the Licensor) work either
directly or indirectly for the Licensee or their associates or agents,
without the written approval of the Licensor, which may be refused without
reason.
21 REPRESENTATION OF UNDERSTANDING
---------------------------------
All parties and signatories to this Agreement acknowledge and agree that
the terms of this Agreement are contractual and not mere recital, and all
parties and signatories represent and warrant that they have carefully read
this Agreement, have fully reviewed its provisions with their attorney,
know and understand its contents and sign the same at their own free will.
It is understood and agreed by all parties and signatories to this
Agreement that execution of this Agreement may affect their rights and
liabilities to a substantial degree and with the full understanding of that
fact, they represent that the covenants provided for in this Agreement are
in their respective best interests.
22 CONSEQUENTIAL DAMAGES
---------------------
In no event shall either party be liable for consequential damages caused
by the other party unless there is negligence by either party.
23 CONFIDENTIAL AND PROPRIETARY INFORMATION
-------------------------------------------
Both parties recognize that they have and/or shall have copyrights,
patents, products, costs, business affairs, trade secrets, technical
information, product design information, and other proprietary information
(collectively, "Information") which are valuable, special, and unique
assets.
(a) LICENSEE'S BUSINESS INFORMATION
14
The Licensor agrees that the Licensor shall not knowingly distribute,
either orally or written, any Information of the Licensee, including
specific operational statistics or results, to a third party without
the prior written approval of the Licensee.
(b) LICENSOR'S INTELLECTUAL PROPERTY
The Licensee agrees that the Software provided by the Licensor to the
Licensee is the sole property of the Licensor regardless of any
payments, fees or other considerations made to the Licensor by the
Licensee.
(c) UNAUTHORIZED DISCLOSURE OF INFORMATION
If it appears that either party has disclosed (or has threatened to
disclose) Information in violation of this Agreement, the other party
shall be entitled to an injunction to restrain the other party from
disclosing, in whole or in part, such information, or from providing
any services to any party to whom such information has been disclosed
or may be disclosed pending resolution for any arbitration filed to
resolve a dispute as it relates to this Agreement. Neither party shall
be prohibited by this provision from pursuing other remedies,
including a claim for losses and damages.
(d) CONFIDENTIALITY AFTER TERMINATION OF AGREEMENT
The confidentiality provisions of this Agreement shall remain in full
force and effect after the termination of this Agreement. A violation
of sub-paragraphs 24(a) or 24(b) above shall be a material violation
of this Agreement.
25 ENTIRE AGREEMENT
-----------------
This Agreement and the Schedules hereto constitute the entire Agreement
between the parties and signatories and all prior and contemporaneous
conversations, negotiations, possible and alleged agreements, and
representations, covenants, and warranties, express or implied, oral or
written, with respect to the subject matter hereof, are waived, merged
herein and superseded hereby. There are no other agreements,
representations, covenants or warranties not set forth herein, the terms of
this Agreement may not be contradicted by evidence of any prior or
contemporaneous agreement. The parties further intend and agree that this
Agreement constitutes the complete and exclusive statement of its terms and
no extrinsic evidence whatsoever may be introduced in any judicial or
arbitration proceeding, if any, involving this Agreement. No part of this
Agreement may be amended or modified in any way unless such amendment or
modification is expressed in a writing signed by all parties to this
Agreement.
26 FAXED COPY
-----------
When all of the parties and signatories have executed this agreement it
shall become effective. A faxed copy of this signed agreement will be
binding upon the parties hereto.
27 GOVERNING LAW AND JURISDICTIONAL CONSENT
--------------------------------------------
This Agreement, including all xxxxxx of construction, validity and
performance, shall be governed by and construed and enforced in accordance
with the laws of the State of Washington, as applied to contracts made,
executed and to be fully performed in such state by citizens of such state,
15
without regarding to its conflict of law rules. The parties hereto agree
that the exclusive jurisdiction and venue for any action brought between
the parties under this Agreement shall be the state and federal courts
sitting in Seattle, Washington, and each of the parties hereby agrees and
submits itself to the jurisdiction and venue of such courts for such
purpose.
28 NOTICES
-------
All notices or other documents under this Agreement shall be by email and
in writing and delivered personally or mailed by certified mail, postage
prepaid, addressed to the party being noticed at its last known address.
29 NON-WAIVER
----------
The failure of any party to insist upon the prompt and punctual performance
of any term or condition in this Agreement, or the failure of any party to
exercise any right or remedy under the terms of this Agreement on any one
or more occasions shall not constitute a waiver of that or any other term,
condition, right, or remedy on that or any subsequent occasion, unless
otherwise expressly provided for herein.
30 HEADINGS
--------
Headings in this Agreement are for convenience only and shall not be used
to interpret or construe its provisions.
31 BINDING EFFECT
---------------
The provisions of this Agreement shall be binding upon and inure to the
benefit of each of the parties and their respective successors and assigns.
Nothing expressed or implied in this Agreement is intended, or shall be
construed, to confer upon or give any person, partnership, or corporation,
other that the parties, their successors and assigns, any benefits, or
rights under or by reason of this Agreement, except to the extent of any
contrary provision herein contained.
32 AUTHORITY
---------
The parties hereto represent and warrant that they possess the full and
complete authority to covenant and agree as provided in this Agreement and,
if applicable, to release other parties and signatories as provided herein.
If any part thereto is a corporation, the signatory for any such
corporation represents and warrants that they possess the authority and
have been authorized by the corporation to enter into this Agreement.
33 ATTORNEY'S FEES
----------------
Should it be necessary to institute any action to enforce the terms of this
Agreement, the parties hereby agree that the prevailing party in any such
action shall be entitled to recover its reasonable attorneys' fees, which
shall include all costs of litigation, including, but not limited to court
costs, filing fees, and expert witness fees but shall not include any
traveling expenses. Further, the attorney fees and costs include the costs
for any appeals. This paragraph shall remain separate from any judgment
entered to enforce its terms and shall entitle the prevailing party to
16
attorneys fees and costs incurred in connection with post judgment
collection and enforcement efforts.
34 SEVERABILITY
------------
If any provision of this Agreement is held by an arbitrator to be
unenforceable or invalid for any reason, the remaining provisions of this
Agreement shall be unaffected by such holding. If the invalidation of any
such provision materially alters the agreement of the parties, then the
parties shall immediately adopt new provisions to replace those, which were
declared invalid.
35 SCHEDULES INCORPORATED BY REFERENCE
--------------------------------------
All schedules referred to herein are incorporated by reference and are so
incorporated for all purposes.
35 ASSIGNMENT OF THIS AGREEMENT
-------------------------------
This License agreement may not be sold assigned, pledged, encumbered, or
transferred by the Licensee without the written consent of Licensor, not to
be unreasonably withheld.
36 NOTICE BY EMAIL Licensor and Licensee may give Notice to each other
-----------------
by email which will be binding upon the parties hereto provided a copy of
the email is faxed or sent by mail to the other party within 3 days
thereafter.
______________________________________________
POKERSOFT CORPORATION A.V.V. - LICENSOR
______________________________________________
SKILL XXXXX.XXX INC. - LICENSEE
______________________________________________
XXXXX.XXX INC. - XXXXX.XXX
SCHEDULE "A"
------------
THE CURRENT GAMES being provided by the Licensor to the Licensee are as follows:
Texas Holdem Poker, single table tournaments and other games of Poker.
--------------------------------------------------------------------------------
17
SCHEDULE "B"
------------
LICENSEE'S URL to be used as the domain name for the gateway page is 'SKILL
XXXXX.XXX'
--------------------------------------------------------------------------------
SCHEDULE "C"
------------
The Initial Fee shall hall be the sum of $30,000 payable on signing hereof
and, subject to the availability of exemption from registration and from
prospectus, 3,000,000 shares of the capital stock of Xxxxx.xxx Inc.
--------------------------------------------------------------------------------
SCHEDULE "D"
------------
LOCATION OF SERVERS
-------------------
Licensee shall maintain the computer servers in Vancouver, Canada or any other
jurisdiction of its choice.
--------------------------------------------------------------------------------
SCHEDULE "E"
------------
THE ROYALTY FEE (WHICH INCLUDES TECHNICAL SUPPORT):
[The remainder of this page has been intentionally left blank]
18
