AGREEMENT INTERNATIONAL GAMING AND ENTERTAINMENT LIMITED and MAHJONG SYSTEMS LIMITED
Exhibit
4.1
AGREEMENT
INTERNATIONAL
GAMING AND ENTERTAINMENT LIMITED
and
MAHJONG
SYSTEMS LIMITED
MEMORANDUM
OF AGREEMENT
entered
into between:
INTERNATIONAL
GAMING AND ENTERTAINMENT LIMITED
A
company
duly incorporated under the laws of Antigua
and
MAHJONG
SYSTEMS LIMITED
A
company
domiciled in the Turks and Caicos Islands that offers a centralised Mahjong
Gaming System and manages the settling of winnings and losses between
participants.
RECITALS
WHEREAS
Intertops operates a gaming web site as part of their business
AND
WHEREAS Mahjong
Systems Limited is a company established to operate a centralised gaming engine
and settlement system for the provision of games to customers of its
partners;
AND
WHEREAS
Intertops wishes to integrate a multi player mahjong game into its existing
gaming web site ;
NOW
THEREFORE
the
Parties agree to the following:
| 1. |
DEFINITIONS
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Unless
the contrary is clearly indicated, the following words and/or phrases, shall
have the following meaning:
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1.1
“this / the Agreement”
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shall
mean this written document together with all written appendices,
annexures, exhibits or amendments attached to it from time to time
by
written agreement between the parties;
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1.2
“Commencement Date”
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shall
mean the date on which he
duly authorized representatives of the Parties affixes their signatures
to the Agreement;
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1.3
“Confidential Information”
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shall
mean the personal information
of the Introduced Players, including personal information and play
history;
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1.4
“Currency”
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shall
mean (not limited to) United States
Dollars or EUROs;
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1.5
"Rake"
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shall
mean the share, in the Currency,
of the winnings paid in each game that is collected by MSL as a
fee for
its service;
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1.6
"MSL"
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shall
mean a company with
registered address Mahjong
Systems Limited, Britannic House, Providenciales, Turks and Caicos
Islands, B.W.I represented by the member of the Board ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇;
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1.7
"Introduced Players"
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shall
mean players of the Mahjong Games, introduced by Intertops as recorded
by
the mahjong system;
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1.8
"Mahjong Games"
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shall
mean the multi player Mahjong game and any other games that MSL
may make
available from time to time;
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1.9
“Parties”
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shall
mean Intertops and MSL;
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1.10
“Partners”
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shall
mean all gaming systems that
provide players and integrate with MSL in a manner similar to that
contemplated in this agreement;
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1.11 “Float”
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shall
mean the funds held as Deposit by MSL and adjusted in the monthly
settlement;
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1.12
“Float Amount”
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The
amount of Float that is agreed
between MSL and Intertops, as adjusted from time to time, and held
by MSL
to cover possible losses by Players;
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1.13
“Intertops”
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shall
mean International Gaming and Entertainment Limited, a company
duly
incorporated under the laws of Antigua, having its address for
service
under this Agreement at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇;
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1.14 Any
reference to the singular includes the plural and vice versa;
1.15 Any
reference to natural persons includes legal persons and vice versa;
1.16 Any
reference to a gender includes other genders;
1.17 The
clause
headings in this agreement have been inserted for convenience only and
shall not
be taken into account in its interpretation.
2. DURATION
2.1 The
Agreement shall commence on the Commencement
Date.
2.2 The
Agreement
will continue in force for a period of ten (10) years calculated from the
Commencement
Date
and
thereafter be renewed for further periods of ten (10) years
subject
to
either
of the Parties’ right to terminate the Agreement by giving one (1) months prior
written notice after the expiry of the initial ten (10) year term.
2.3 In
the event
that MSL is sold the purchaser will honour all terms of this
agreement.
3. RIGHT
OF
PARTICIPATION IN REVENUE SHARING
3.1 The
Parties agree that
other Partners may participate in revenue sharing with MSL in a similar manner
to that contemplated in this Agreement.
4. RIGHT
AND OBLIGATIONS OF MSL
MSL
shall:
| 4.1 |
Have
the right to use third parties to perform any of these rights and
obligations;
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| 4.2 |
Ensure
that it is legally authorized to provide the Mahjong
Games;
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| 4.3 |
Ensure
that all transactions in respect of its obligations in terms of this
Agreement are conducted in the Currency as defined in the systems
specifications;
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| 4.4 |
Settle
all net differences between Partners on a monthly basis within 30
days of
the end of each month by,
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| 4.4.1 |
in
the event that the Float is less than the Float Amount, instructing
a
Partner to remit funds to return the Float to the Float Amount;
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| 4.4.2 |
in
the event that the Float is greater than the Float Amount, paying
the
Partner the excess amount;
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| 4.5 |
Pay
the Intertops commissions, as a percentage of the Rake, to Intertops
as
defined in Schedule 1, these commissions settled in the same transactions
as the settlement defined in 4.4;
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| 4.6 |
Provide
monthly report of Float movements and commissions due to Intertops
and
provide real-time access to financial and game
information;
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| 4.7 |
Hold
the Float Amount in trust for Intertops and return all amounts that
are
not spent in the case of cancellation to
Intertops
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| 4.8 |
Monitor
the Float Amount and inform Intertops if it is insufficient for the
current play rate
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| 4.9 |
Keep
full and proper books of accounts and records showing clearly all
transactions relating to MSL's obligations in respect of this
Agreement;
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| 4.10 |
Allow
any person authorized by Intertops to have access at all reasonable
times
to MSL's premises for the purposes of inspecting the books and records
to
the extent that this is necessary to ensure Intertops’s interests are
being protected as provided for in this
Agreement;
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| 4.11 |
Provide
all computer components, equipment and software needed to provide
the
electronic system to operate the Mahjong Games, including back office
systems that may be accessed by Intertops support staff to provide
player
support;
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| 4.12 |
Provide
systems and make best endeavors to prevent collusion, and update
these
systems on an ongoing basis where
appropriate;
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| 4.13 |
Provide
support and service as follows to Intertops for technical and software
issues:
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| 4.13.1 |
Respond
to problem notifications within two (2) hours of being advised of
a
problem. MSL will make best endeavors to solve the problem within
twelve
(12) hours of receiving notification of a
problem;
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| 4.13.2 |
MSL
has no right to communicate with, nor ownership of, Introduced
Players
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5. RIGHTS
AND OBLIGATIONS OF INTERTOPS
Intertops
shall:
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5.1
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Promote
the Mahjong Games and be responsible for all associated
costs;
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| 5.2 |
Not
bring MSL into disrepute by marketing or selling the Mahjong Games
in any
fashion deemed to be illegal or
undesirable;
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5.3
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Use
best endeavors to ensure that its activities do not violate the laws
of
any country;
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| 5.4 |
Inform
MSL as soon as possible of any legal difficulties that are encountered
in
respect of the promotion of the Mahjong
Games;
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| 5.5 |
Be
responsible for all costs incurred by Intertops in the software
integration;
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| 5.6 |
Be
responsible for and bear all costs with relation to the player
relationship including:
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| 5.6.1 |
Acquiring
funds into players’ accounts that may be subsequently used for the Mahjong
Game,
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| 5.6.2 |
Providing
customer support to players,
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| 5.6.3 |
Settlement
of player withdrawals,
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| 5.6.4 |
Managing
and funding where necessary any shortfalls through charge backs or
fraud,
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| 5.6.5 |
Provision
of all software and hardware systems associated with the player
relationship;
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| 5.7 |
Pay
an initial and annual License Fee as per Schedule
1;
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| 5.8 |
Deposit
funds with MSL to establish the Float. The Float will cover the expected
maximum deficit that would be realized in the course of one month,
such
float to be adjusted where necessary during the course of the month
in
good time to avoid players being refused games. The initial float
amount
is set as per Schedule 1.
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6. INTELLECTUAL
PROPERTY RIGHTS
| 6.1 |
Intertops
shall not acquire any right, title or interest in any copyright or
other
intellectual property rights in the Mahjong Games by virtue of this
Agreement;
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| 6.2 |
MSL
shall not acquire any right, title or interest in any copyright or
other
intellectual property rights in Intertops’s trademarks, trade names,
copyrights and other rights used or embodied in or in connection
with its
activities.
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7. VALIDITY
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7.1
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If
any provision of this Agreement
is found or held to be invalid or unenforceable, the validity and
enforceability of all the other provisions of this Agreement
will not be affected thereby.
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8. CONFIDENTIALITY
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8.1
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MSL
shall hold in confidence all Confidential
Information
received and not divulge the Confidential
Information
to any person, including any of its personnel, save for Parties directly
involved with the execution of this
Agreement;
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| 8.2 |
Intertops
shall have full rights to and access to the Confidential
Information.
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8.3
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The
parties shall prevent disclosure of the Confidential
Information,
except as may be required by law.
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| 8.4 |
MSL
shall ensure that each staff member or external party having access
to
Confidential Information is bound by individual non-disclosure
agreements.
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9. TERMINATION
OF AGREEMENT
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9.1
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This
Agreement may be terminated with immediate effect by MSL in the event
of
Intertops not complying with the MSL requirements in terms of clause
5.2.
This clause shall not be unreasonably
invoked.
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| 9.2 |
Each
party may terminate this Agreement by written notice to the other
Party in
accordance with clause 2.2 after the initial
period.
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| 9.3 |
Either
Party may terminate this Agreement by written notice if the other
is in
breach of any of the obligations of this Agreement and fails to remedy
such breach within thirty (30) days after written notice to do so
has been
dispatched by the other Party.
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| 9.4 |
Either
Party may terminate this Agreement immediately and without notice
if:
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| 9.4.1 |
the
other enters into a composition with its
creditors;
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| 9.4.2 |
an
order is made for the winding up of the
other;
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| 9.4.3 |
an
effective resolution is passed for the winding up of the other (other
than
for the purposes of amalgamation or reconstruction on terms approved
by
the first Party (such approval not to be unreasonably withheld));
or
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| 9.4.4 |
the
other has a receiver, manager, administrative receiver or administrator
appointed in respect of it.
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9.5 Effect
of Termination
The
termination of the Agreement, for whatever reason, shall not affect the rights
of either of the parties:
| 9.5.1 |
that
may have accrued before the termination of the Agreement;
or
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| 9.5.2 |
which
specifically or by their nature survive the termination of the
Agreement.
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| 9.6 |
On
termination, MSL will provide, in an electronic format acceptable
to
Intertops, a copy of all the Confidential Information relating to
Intertops.
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| 9.7 |
MSL
shall destroy all copies of Confidential Information relating to
Intertops
once it is no longer required to be
kept.
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10. DOMICILIUM
The
Parties elect the following addresses as their respective domicilium
citandi et executandi:
| 10.1 |
International
Gaming and Entertainment Limited:
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▇▇
▇▇▇▇▇
▇▇▇▇▇▇
St
▇▇▇▇
Antigua
10.2 MSL:
Mahjong
Systems Limited
Britannic
House
Providenciales
B.W.I
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10.3
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Either
of the Parties may change its
domicilium citandi et executandi to
another address within the same country, by way of a notice to the
other
party to this Agreement, provided that such a notice is received
by the
addressee, at least 7 (seven) calendar days prior to such a change
taking
effect.
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11. NOTICES
The
Parties elect the following addresses at which all notices and other
communications must be delivered for the purposes of this Agreement:
11.1 International
Gaming and Entertainment Limited:
11.1.1 by
hand
at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇, Antigua for the attention of the Chief Executive
Officer;
11.1.2 by
post
at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇, Antigua marked for the attention of the Chief
Executive Officer;
11.1.3 by
facsimile at ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ marked for the attention of the Chief Executive
Officer.
11.2 MSL:
11.2.1 by
hand
at Mahjong Mania, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, #▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, marked
for the attention of Chief Executive Officer.
11.2.2 by
post
at Mahjong Mania, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, #▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, marked
for the attention of the Director of the Board.
11.2.3 by
facsimile at ▇▇ (▇▇▇) ▇▇▇ ▇▇▇▇ marked for the attention of the Director of
the
Board.
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11.3
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Any
notice or communication required or permitted to be given in terms
of this
Agreement
shall only be valid and effective if it is in
writing.
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11.4
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Any
notice addressed to either of the Parties and contained in a correctly
addressed envelope and sent by registered post to it at its chosen
address
or delivered by hand at its chosen address to a responsible person
on any
day of the week between 09h00 and 16h00, excluding Saturdays, Sundays
and
public holidays, shall be deemed to have been received, unless the
contrary is proved, if sent by registered post, on the 14 (fourteenth)
calendar day after posting and, in the case of hand delivery, on
the day
of delivery.
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11.5
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Any
notice sent by telefax to either of the Parties at its telefax number
shall be deemed, unless the contrary is proved, to have been
received:
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11.5.1 if
it is
transmitted on any day of the week between 09h00 and 16h00, excluding Saturdays,
Sundays and public holidays, within 2 (two) hours of transmission;
11.5.2 if
it is
transmitted outside of these times, within 2 (two) hours of the commencement
of
the next day of the week between 09h00 and 16h00, excluding Saturdays, Sundays
and
public
holidays, after it has been transmitted.
12. FORCE
MAJEURE
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12.1
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Neither
of the Parties shall be liable for a failure to perform any of its
obligations insofar as it proves:
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12.1.1 that
the
failure was due to an impediment beyond its control;
12.1.2 that
it
could not reasonably be expected to have taken the impediment and its effects
upon the party’s ability to perform into account at the time of the conclusion
of this
Agreement;
and
12.1.3 that
it
could not reasonably have avoided or overcome the impediment or at least its
effects.
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12.2
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An
impediment, as aforesaid, may result from events such as the following,
this enumeration not being
exhaustive:
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12.2.1 war,
whether declared or not, civil war, civil violence, riots and revolutions,
acts of sabotage;
12.2.2 natural
disasters such as violent storms, cyclones, earthquakes, tidal waves, floods,
destruction by lightning;
12.2.3 explosions,
fires, destruction of machines, factories and any kind of
installations;
12.2.4 boycotts,
strikes and lock-outs of all kinds, go-slows, occupation of factories and
premises and work stoppages;
12.2.5 acts
of
authority, whether lawful or unlawful, apart from acts from which the party
seeking relief has assumed the risk by virtue of any other provisions of this
Agreement.
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12.3
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For
the purposes of this clause “impediment” does not include lack of
authorisations, of licences, of permits or of approvals necessary
for the
performance of this Agreement
and to be issued by the appropriate public
authority.
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12.4
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Relief
from liability for non-performance by reason of the provisions of
this
clause shall commence on the date upon which the party seeking relief
gives Notice
of the impediment relied upon and shall terminate upon the date upon
which
such impediment ceases to exist; provided that if such impediment
continues for a period of more than sixty (60) days either of the
Parties
shall be entitled to terminate this Agreement.
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13. ENTIRE
AGREEMENT AND VARIATIONS
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13.1
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This
Agreement
including schedule 1 constitutes the whole agreement between the
Parties
and supersedes all prior verbal or written agreements or understandings
or
representations by or between the Parties
regarding the subject matter of this Agreement,
and the Parties
will not be entitled to rely, in any dispute regarding this Agreement,
on any terms, conditions or representations not expressly contained
in
this Agreement.
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13.2
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No
variation of or addition to this Agreement
will be of any force or effect unless reduced to writing and signed
by or
on behalf of the Parties.
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13.3
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Neither
party to this Agreement
has given any warranty or made any representation to the other party,
other than any warranty or representation that may be expressly set
out in
this
Agreement.
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14. RELAXATION
No
indulgence, leniency or extension of a right, which either of the Parties
may have in terms of this Agreement,
and which either party (“the grantor”) may grant or show to the other party,
shall in any way prejudice the grantor, or preclude the grantor from exercising
any of the rights that it has derived from this Agreement,
or be construed as a waiver by the grantor of that right.
15. WAIVER
No
waiver
on the part of either party to this Agreement of any rights
arising from a breach of any provision of this Agreement
will constitute
a
waiver of rights in respect of any subsequent breach of the same or any other
provision.
16. SEVERABILITY
In
the
event that any of the terms of this Agreement
are found to be invalid, unlawful or unenforceable, such terms will be severable
from the remaining terms, which will continue to be valid and
enforceable.
17. DRAFTING
COSTS
Each
of
the Parties shall bear its own cost incurred as a result of the negotiation,
drafting and finalisation of this Agreement, which shall include, but not be
limited to, all legal fees.
18. GOVERNING
LAW
The
validity and interpretation of this Agreement
will be governed by the laws of the Turks and Caicos Islands.
I,
Mag.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, the undersigned, herewith confirm that my position within
International Gaming and Entertainment Limited is that of CFO and state that
I
am duly authorized to enter into this
Agreement,
which I herewith do, on this the 19 May 2004 by signing this
Agreement,
for and on behalf of International Gaming and Entertainment
Limited.
Witnesses:
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1.........................................................
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||
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2..........................................................
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Signature
on behalf of International Gaming and Entertainment
Limited
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I,
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, the undersigned, herewith confirm that my position within the
Mahjong Systems Limited is that of Director and state that I am duly authorized
to enter into this
Agreement,
which I herewith do, on
this
the 19 May 2004 by signing this
Agreement,
for and on behalf of the Mahjong Systems Limited.
Witnesses:
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1....................................................
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2....................................................
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Signature
on behalf of MSL
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Schedule
1
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Revenue
Share, License Fees and Deposit
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Initial
Deposit
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US$
*
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First
Year License Fee
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US$
*
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Subsequent
Annual License Fees
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US$
*
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Revenue
Share
(share
of House Rake paid to partner)
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*
for first two years from the date that Intertops begin using the
Mahjong
games operationally
*
thereafter
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*
The
confidential portion has been so omitted and filed separately with the
Commission.