CO-OPERATION CONTRACT DRAFT 6/12/99
THE UNDERSIGNED
XXXXXXXXXXXXXX.XXX INC. a public company, with registered and business offices
at 0000 Xxxxxxx Xxxxx xx Xxxxxxxx Xxxxxxx, XX. 00000, lawfully represented for
this purpose by its executive vice president, Xx. X. Xxxxxxx and/or its CEO Mr
X. Xxxxxxxxx, and referred to hereinafter as "CasinoBuilders";
and
LOST BOYS INTERACTIVE B.V., a private limited liability company, with its
registered and business offices at Xxxxxxxxxxx 000 xx (0000 XX) Xxxxxxxxx, xxx
Xxxxxxxxxxx, lawfully represented for this purpose by its managing directors Mr
C.J.W. Xxxxxxxxxx and Mr X.X. Mol, and to be referred to hereinafter as "Lost
Boys";
WHEREAS:
Lost Boys engages in the manufacture of software and in design work for new
media productions in the broadest sense of the words;
CasinoBuilders is an internet marketing and services company focused on the
internet gaming industry and engages inter alia in the commercial exploitation
of online casino's by licensing;
CasinoBuilders intends to have online Avatar based casino's developed and
produced by Lost Boys and Lost Boys is willing to develop and produce the
software and design for such casino's;
Parties wish to agree upon the terms and conditions which will apply to their
co-operation with regard to the development of online Avatar based casino's;
AGREE AS FOLLOWS
ARTICLE 1 - COMMISSION
1.1 For the purpose of this contract an `online Avatar based casino' is
defined as an online client server based casino where casino games can
be played together with other people through online connections.
1.2 When CasinoBuilders commissions Lost Boys, and Lost Boys accepts the
commission to produce (a part of) an on-line Avatar based casino (such
as the art deco casino), hereinafter the "Application", the provisions
set out in this Contract will apply to such commissions. This contract
will not apply to any commissions regarding other then the
aforementioned Applications.
1.2 Lost Boys shall produce the Applications in accordance with the
functional/technical specifications, hereinafter referred to as the
"Specifications".
1.3 Regular consultations shall be held between CasinoBuilders and
Supplier as regards the content, structure and design of the
Applications. Final editorial responsibility for the Applications
shall, however, be the sole responsibility of CasinoBuilders.
ARTICLE 2 - DELIVERY
2.1 The delivery dates of the Applications shall be agreed in mutual
consent. Lost Boys will describe details with regard to the planning
and the delivery for each Application, hereinafter referred to as the
"Planning".
2.2 CasinoBuilders shall be obliged to furnish all the requisite
co-operation to Lost Boys for the performance of the Applications
under this Contract, and to make available to Lost Boys the
information, data, software, assets, materials and/or other necessary
items as described in the Planning, hereinafter the "Documentation",
on or by the dates mentioned therein.
2.3 If CasinoBuilders and/or any third parties retained by CasinoBuilders
fail to make (any part) of the Documentation available by or on the
dates mentioned in the Planning, Lost Boys may - having first
consulted CasinoBuilders - then postpone the Delivery Date without
being obliged to compensate CasinoBuilders in any way.
2.4 Lost Boys shall not be liable for any faults in or, as the case may
be, problems with the Application's software that result from the
Documentation furnished by CasinoBuilders of any third parties
retained by the latter.
2.5 If Lost Boys executes any specific changes in and/or additions to the
Specifications for the Application to be supplied by Lost Boys, and
does so at the request of CasinoBuilders as provided for in Article
3.4, Lost Boys may - having first consulted CasinoBuilders - postpone
the Application's Delivery Date to the extent that this is required
in order to execute the relevant changes or additions.
ARTICLE 3 - PAYMENT
3.1 For each Application CasinoBuilders shall be due Lost Boys the fees
as mentioned in the price quotation and/or invoices of the particular
Application. The way of payment of the fees shall be decided in
mutual consent for each Application, hereinafter the "Conditions of
Payment". Payment might be effected partly in shares of
CasinoBuilders.
3.2 If CasinoBuilders issues a request to change and/or add to the
Specifications for an Application produced by Lost Boys, it shall
notify Lost Boys accordingly, Lost Boys shall then issue
CasinoBuilders with a price quotation for any additional work to be
performed as a result of such change(s) and/or addition(s). The
aforementioned quotation will be based upon a reduced price of $
600,-- (six hundred dollars) excluding VAT a day.
3.3 If Lost Boys is required to carry out additional work as the result
of a failure to furnish (any part of) the Documentation on time on
the part of CasinoBuilders and/or any third parties retained by the
latter, Lost Boys shall be entitled to charge on the entire cost of
this additional work to CasinoBuilders.
ARTICLE 4 - GRANTING OF RIGHTS
4.1 The Applications shall be delivered by Lost Boys to CasinoBuilders
together with the exclusive right to use, publish and market the
Applications world-wide during the term of this contract.
For each Application parties will agree upon the exact conditions,
such as additional consideration, under which CasinoBuilders will be
granted the right to grant third parties a sublicense to use and/or
publish a particular Application. The term of such licenses will be
at most three years. All sublicenses will be in conformity with this
contract and CasinoBuilders will provide Lost Boys with a copy of
each sublicense granted.
4.2 All the (intellectual) property rights in the Application, the
software, the concept and its design, the INFORMATION OR DATA STORED
THEREIN AND ANY OTHER MATERIAL OWNED BY LOST BOYS PRIOR to the
co-operation between parties, shall be exclusively reserved for and
remain vested in Lost Boys.
4.3 All (intellectual) property rights in the Application, the software,
the concept and its design, the INFORMATION OR DATA STORED THEREIN
AND ANY OTHER MATERIAL DEVELOPED BY LOST BOYS DURING the co-operation
between parties, shall be reserved for parties together in case
CasinoBuilders has delivered a substantial contribution to this
development. In case CasinoBuilders has not delivered a substantial
contribution to this development all such (intellectual) property
rights shall be exclusively reserved for and remain vested in Lost
Boys.
4.4 Article 4.3 does not apply to the Documentation furnished by
CasinoBuilders. All intellectual property rights in this
Documentation shall remain vested in CasinoBuilders.
ARTICLE 5 - WARRANTIES AND INDEMNIFICATION
5.1 The parties represent and warrant towards one another that no
obligations exist which stand in the way of them entering into and
executing this Contract.
5.2 The parties represent and warrant towards one another that they are
each fully entitled to grant each other the rights described in this
Contract and that they shall indemnify each other against any and all
third-party claims in that regard.
5.3 CasinoBuilders represents and warrants towards Lost Boys that it is
entitled to dispose freely of the Documentation (to be) made
available to Lost Boys and that it shall indemnify Lost Boys against
any and all third-party claims in that regard.
5.4 Either party to this Contract shall compensate the other party for
any and all damage, including any legal costs reasonably incurred,
which said other party may sustain as the result of any default on
the part of the former in its performance of any obligation under
this Contract, and shall indemnify the other party against any and
all third-party claims in that regard.
5.5 The indemnifications issued to CasinoBuilders by Lost Boys in this
Article shall lapse if CasinoBuilders has made any changes and/or
adjustments in or to the Application or, as the case may be, has had
such changes or adjustments made on its behalf and/or if
CasinoBuilders has used the application in any manner other than one
that has been agreed on.
ARTICLE 6 - APPENDIXES
For each Application developed under this contract the following information
will be attached in an appendix to this contract:
The Specifications;
The Planning;
The Documentation;
The Conditions of Payment.
ARTICLE 7 - TERM
7.1 This co-operation contract shall continue for an initial period of three
years, and shall take effect on the first of December 1999. In mutual
consultation parties can decide to extend this contract with each time
another period of three years.
7.2 The sublicenses as referred to in article 4.1 of this contract which are
granted before parties have decided to terminate this contract, will not
be effected by the termination of this contract. All other sublicenses
will end at the termination of this contract, unless parties decide
otherwise in mutual consent.
7.3 After termination of this contract parties will decide in mutual
consultation if, how and under which conditions the joint (intellectual)
property rights as referred to in article 4.2 of this contract might be
used by each party.
7.4 After termination of this contract Lost Boys shall repair at its customary
commercial rates defects in the software of the delivered Applications to
the best of its ability (corrective maintenance) upon request of
CasinoBuilders. Parties will enter into an maintenance contract for this
purpose in due course. This maintenance contract will be effective during
the remaining term of the latest sublicense granted by CasinoBuilders as
referred to in article 4.1, with a minimum of one year.
However, in case this contract is terminated by Lost Boys in accordance
with article 15 of Lost Boys' General Terms and Conditions of Delivery and
Payment, Lost Boys will not be obliged to provide CasinoBuilders with the
aforementioned maintenance.
ARTICLE 8 - GENERAL TERMS AND CONDITIONS
8.1 Lost Boys' General Terms and Conditions of Delivery and Payment shall
form an integral part of this Contract. By signing this Contract,
CasinoBuilders represents that it has accepted the contents of said
General Terms and Conditions.
8.2 If any provision in this Contract and/or its appendixes should be in
violation of Lost Boys' General Terms and Conditions of Delivery and
Payment, the relevant provision in this Contract shall take precedence.
8.3 In departure from the General Terms and Condition of Delivery and Payment
(GTC) the parties have agreed that:
a. The following sentence shall be added to Article 12 of the GTC:
"Identical confidentiality obligations will apply to Supplier."
b. Article 15.1 of the GTC shall be replaced in full by the following text:
"If one of the parties, having first received a written demand from
the other party, continues to default on any of its essential
obligations under this contract and/or these General Terms and
Conditions, the party concerned shall be entitled, without further
notice of default to the other party or court intervention, to
terminate the contract - with immediate effect and without being
obliged to pay the other party any kind of compensation - by means
of a registered letter, without this prejudicing the right of the
terminating party to exercise its other statutory rights, such as
its right to compensation. If, at the time of the Contract's
termination under this Article, the terminating party has already
partially performed its obligations, the other party shall be
obliged in return to perform its relevant obligations to an
equivalent degree."
c. The following sentence shall be added to Article 15.2 of the GTC:
"Customer will be entitled to terminate a contract on the same grounds."
d. Article 18.1 of the GTC shall be replaced by the following text:
"During the term of the co-operation contract between the Customer
and the Supplier, the Supplier shall remedy for free any defects in
the software as a result of its not satisfying the specifications,
if and to the extent that it is notified of these defects in writing
by the Customer within this period."
THUS AGREED AND SIGNED IN DUPLICATE ORIGINALS IN AMSTERDAM, THE NETHERLANDS/
COLORADO, USA
DATE: ....................... 1999
Lost Boys Interactive B.V. XxxxxxXxxxxxxx.xxx Inc.
........................................... .......................
C.J.W. Kousemaker P. A. Ruppanner
.........................................
X.X. Mol
