LASER STORM, INC.
0000 Xxxxxx Xxxxx Xxxxx Xxxxx, Xxxx 0
Xxxxxx, Xxxxxxxx 00000
(000) 000-0000
USER AGREEMENT
GENERAL TERMS AND CONDITIONS
1. Contract. This Contract of Use ("Contract" or "User Agreement"),
consisting of these General Terms and Conditions, the Acknowledgment, and any
Schedule attached hereto, is between Laser Storm, Inc., ("Company") and Xxxxxx'x
Vicksburg Corporation ("User" or "Xxxxxx'x)) agreeing to use from the Company
the Laser Storm(R) Components covered by this Users Agreement (the
"Components"). 1.x. Xxxxxx'x has designated The Planet Kidz, Inc. ("Manager") as
the representative of User for purposes of administering the Agreement. Unless
otherwise notified by Xxxxxx'x or unless otherwise stated herein, Company will
deal with Manager for all contract administration purposes. Xxxxxx'x retains the
right, upon notice to Company, to exercise any rights or remedies under the User
Agreement on behalf of Xxxxxx'x Vicksburg Corporation and also to designate
another entity as Manager.
2. Per Use Price & Reporting. The Company agrees to allow the User to use
and User agrees to use the Components and Licenses set forth in the attached
Schedules, which are incorporated herein. It is agreed that the Company will
receive 50% of the gross revenues as defined herein, from the use of the Laser
Storm(R) Components; Manager will receive 25%; User will receive 25%. Gross
revenues shall be defined as the price paid by the customer less any sales/use
taxes or other taxes charged against the price paid by the customer. Manager
shall be responsible to collect and pay all applicable sales taxes. Use is
computed by using tally counters on the Energy Pods. Each time a player
activates his or her phaser to start a game, the counters increase by one and
the per play price is accrued. Payments shall be paid in arrears in monthly
installments based upon the number of player activations, adjusted for any
discounts or price increases, utilized in the previous month of operation.
Manager must complete the player activation worksheet, and submit the worksheet
and the monthly payment so that the Company receives both by the 5th day of each
month. The Per Use fee is based on 50% of the price per game. If the price per
game is increased the Per Use price shall be increased proportionately on the
first month following the price increase.
2a. Pricing. Standard price per play shall be a maximum of $5.00 per
play per person. Maximum price may be adjusted from time to time as agreed upon
between User, Company and Manager. Special events, promotions and guest and
employee discounts shall be determined at the discretion of User and Manager.
Company recommends that the minimum amount charged per play shall not fall below
$2.50 per play. Reporting shall be provided in detail to Company by Manager on a
bi-monthly basis with payments of revenue at least monthly. Reports shall
consist of a standard detailed document showing all ticket sales, both gross and
net of taxes, number of free plays and amount charged for each play. Any
discounts, refunds, coupons and/or specials shall also be detailed in a sales
report for each reporting period. Merchandise sales shall be reported in like
manner. Manager shall also provide a quarterly and annual sales summary to
Company.
2b. Equipment Audit. Company reserves the right to require the Manager
to send in its existing Energy Pods in exchange for replacement Energy Pods, for
the express purpose of auditing the Energy Pod counters, "Equipment Audit". In
the event of any discrepancy, User shall pay to the Company any amounts due and
owing as of this Equipment Audit date plus a 10% penalty based upon the actual
number of player activations. Manager shall keep a log of all non-play usage
such as error restarts, employee training, testing or no-charge promotional use.
Each entry in the log must be approved by Manager in order to be deducted from
actual number of player authorizations. The average number of free plays should
not exceed 5% of the total monthly usage. Upon Equipment Audit, any additional
amounts due shall be paid within 30 days of said audit.
Company User 1
---- -----
2c. Financial Audit. Manager shall keep accurate and complete records
in accordance with the accounting standards and procedures presently utilized by
Manager so that all receipts from the sale of tickets, together with the sales
of merchandise on a daily basis by Company. Company shall have the right at any
reasonable time to inspect any such record of Manager, including but not limited
to all checks, bills, vouchers, invoices, statements, cash receipts,
correspondence, and all other records in connection with the management of the
laser tag facility. Company shall further have the right to cause an audit to be
made of all account books and records connected with the management of the laser
tag facility on an annual basis, fees for which will be equally shared by
Manager and Company. In the event of an audit, should a discrepancy of more than
2% be found, the cost of said audit will be borne by Manager. The Company
reserves the right to terminate the Agreement if the additional amounts due
(pursuant to audit) are not paid on the specified dates due. If User/Manager
does not comply with the Service Procedures stated herein, Company reserves the
right to terminate the Agreement upon 30 days prior written notice with right to
cure during such period. Should there be no cure, Company may cease components
service, hold all existing components of User, and pursue collection, pursuant
to paragraph 12 of the User Agreement. If User returns components which have
damage beyond normal operational wear, Company will send written notice to
Manager noting such damage, pursuant to paragraph 10 of the User Agreement.
Company reserves the right to refuse refurbishment of any component deemed
abused.
3. Equipment. Company warrants that the Laser Storm Components (Components)
are safe and will not cause injury if used according to Company's written
instructions. Company will provide instructions to Manager to be given to
customers as to proper use. Manager shall train and properly supervise customers
as to the proper treatment of equipment to avoid any unnecessary abuse or
misuse. Components supplied to User are described in Schedule A.
4. Delivery. Delivery shall be made in accordance with the attached
Schedule A. Shipment shall be by any reasonable means chosen by the Company, and
approved by the User. The Company shall notify User of the shipment date and
method of shipment. The Company shall not be responsible for any delay or
failure of delivery resulting from any act of God, labor dispute, fire or other
casualty, international or domestic conflict, difficulty in obtaining materials,
labor or transportation, energy shortage, delay in shipment by the Company 's
suppliers, or any other cause beyond Company's reasonable control. User's
request for delivery of components in less than 60 days will be considered a
rush order. Upon such request, User agrees to pay all reasonable rush charges
incurred on each order.
5. Installation and Site Requirements. The User agrees to prepare and
maintain the installation site of the Components in accordance with
mutually-agreed-upon specifications as enumerated in Schedule B. Said
specifications, installation date, and location are detailed in Schedule B,
attached hereto and incorporated herein. The Company's authorized representative
will install the Laser Storm(R) Components in a professional and workmanlike
manner with as little disruption to the User's business as possible.
6. Change Orders. User shall have the right to make additions (but not
deletions) to Schedule
A.
6a. The User understands the Laser Storm Components will be
manufactured pursuant to User's configuration as detailed in Schedules A and B
and under no circumstances may the User exclude any component listed therein or
decrease the size of the original order.
6b. Scheduled delivery and installation of the Components is specified
in Schedule A. Pursuant to paragraph 5 above and Schedule B, the User agrees the
installation site for the Components will be prepared and the requirements met
in advance of said scheduled delivery date as agreed upon between the Company
and the User. In the event scheduled delivery date is postponed by the User for
any reason, including nonpayment of any payment due or pursuant to Schedule A,
the User agrees to pay the Company an installation delay charge of $200.00 per
month. Said installation delay charge shall be paid by the User beginning 30
days after the original installation date as specified in Schedule A and
Company User 2
---- -----
continuing on the monthly anniversary date of the scheduled delivery date, until
all installation delay charges are paid in full. Said Installation delay charge
shall not be prorated and shall be paid in full prior to rescheduling of the
delivery and installation by the Company. Rescheduling shall be solely at the
discretion of the Company.
6c. The User agrees that any changes to the installation site
specifications and requirements (pursuant to Schedule A) must be provided to the
Company not less than forty-five (45) days prior to the installation date
specified in Schedule B. The User further agrees that in the event the
installation site is not prepared to specifications upon arrival of the
Company's installation personnel, the Company shall remove its personnel and
Components until such time as the installation site is properly prepared as is
mutually agreeable between the User and Company and the User agrees to pay a
delivery cancellation charge of $200.00 per occurrence. Upon the User's notice
to the Company that the site specifications and requirements have been met, and
upon payment of any installation delay charges as set forth in paragraph 6.b.
above, and upon payment of a delivery cancellation charge of $1,000.00 per
occurrence, the Company shall reschedule the installation of the Laser Storm(R)
Components.
7. Permits and Licenses. The User shall apply for and obtain all necessary
building and other governmental permits and licenses which may be required in
connection with the installation of the Components used hereunder. User shall
subsequently comply with and conform to all laws, ordinances, and governmental
regulations relating to the use of the Components.
8. License for Use of Name, Intellectual Property, and Software. User
further acknowledges that User is receiving a license for the use of the name
"Laser Storm" and any other service marks, trademarks, tradenames or other
intellectual property used in describing and defining said components. User is
also receiving a license for the use of the software that operates the purchased
component. This license shall remain the property of Company and User agrees to
abide by the License agreement attached hereto as Schedule D, including the
agreement concerning the use of said property restricted to the specific site
identified in Schedule B.
9. Indemnification. Both parties understand that this agreement is a User
Agreement and Company is in no way acting to participate in the business being
operated by User, whether as an owner, shareholder, partner, joint venture,
member, franchiser, or in any other respect. User agrees that by using the name
of Laser Storm(R), together with the software, and any other name or xxxx owned
by Company and permitted for use by User, User will indemnify and hold Company
harmless from any claims, suits, actions, or other disputes that arise from
User's operation of its business. This includes, specifically, the obligation
for user to pay for the Company to provide legal defense and for any costs,
fees, or expenses of any form incurred by Company as a result of any action
brought based upon the operations of User's business. This clause does not apply
to the use of the Components and use of the License rights herein. Company will
indemnify and hold harmless User, Xxxxxx'x and Manager (and their respective
subsidiaries, affiliates, partner-owners and employees) from any damages, losses
or expenses (including reasonable attorneys fees) arising out of any injury
resulting from a defect in the Components, from Company's failure to properly
maintain the Components, or from the use of the Components (except if the
Components are not used according to Company's written instructions). This
paragraph prevails over any inconsistent provision in the User Agreement and
will survive the termination of the User Agreement.
10. Service Procedures. The Company will maintain, service and make any
necessary installations or repairs in connection with the said components, at
its own expense. The Company is required to keep the Laser Storm Components in
working condition, however the following is expressly excluded: Plastic phaser
shells, headsets, or controller housings damaged by abuse, carelessness or
misuse, including but not limited to being stepped on, dropped, kicked or in any
other way abused or used for any purpose which it is not intended; Connecting
Company User 3
---- -----
cords which have been cut, torn, pinched or otherwise mutilated, apart from
normal wear and tear; batteries or battery chargers which have been
intentionally shorted out or have been handled in any way inconsistent with
operating instructions; Any units which have been opened, altered, modified or
repaired by anyone other than an authorized Laser Storm(R) technician; and any
other damage which is the result of abuse, misuse, or use inconsistent with the
instructions in the Laser Storm(R) operations manual provided under separate
cover.
10a. In the event of a component failure the User shall first call
Company's Customer Service department for evaluation, then, if instructed,
return the component by overnight mail to the Company in accordance with the
Service Repair instructions outlined in Schedule C. The Company shall repair or
replace, at the Company's option, the Component at no charge to the User and
return the Component to the User via overnight delivery to the User, subject to
parts availability. No component which has been abused, or altered, or repaired
by other than an authorized representative of the Company shall be repaired at
the Company's expense. Neither Xxxxxx'x, User or Manager will be responsible for
damage to the Components caused by normal wear and tear or by customers' use or
misuse since it is presumed that damage caused by customers is covered by
Company's warranty or insurance. Manager shall train and properly supervise
customers as to the proper treatment of equipment to avoid any unnecessary abuse
or misuse.
10b. User shall pay the electricity used in the operation of said
component.
10c. The User shall apply for an obtain all necessary building and
other governmental permits and licenses which may be required in connection with
the installation of the Component used hereunder. User shall subsequently comply
with and conform to all laws, ordinances, and governmental regulations relating
to the use of the Components.
10d. User/Manager shall use all best efforts to take care of
components, protect said components from any vandalism or other physical abuse
that may damage component. All losses and damages caused by the negligence of
User shall be born by User. This shall also be deemed to include stolen or
destroyed components. Same components shall be paid to Company by User at the
then existing retail price of same components.
10e. User/Manager shall provide to Company written request for the
removal of any unit. To avoid possible conflicts as relates to existing
territorial agreements with Company's other customers, unit shall not be moved
without the prior written consent of the Company which will not be unreasonably
withheld.
11. Professional Management. User shall contract with professional
management team capable of operating and promoting Laser Storm Components.
Manager shall operate and maintain all Components, inventory, equipment,
designated laser tag area, supplies and materials used in connection therewith,
in a manner calculated to enhance the reputation of the facility with its
customers. Manager agrees to use its best efforts in managing said facility in
order to provide the maximum economic return consistent with professional
management standards. Manager shall have full power and authority to manage the
facility and shall be responsible for directing its supervisors and employees as
to the manner and means of accomplishing the work required to be performed.
Performance criteria on the part of Manager shall be consistent User's and
Company's standards. Performance criteria is defined as properly managing and
promoting the facility to ensure facility runs at its full potential during
normal operating hours. User/Manager shall provide a professional, clean, safe,
and fun environment. Staff shall also be of the same professional caliber.
Planet Kidz, Inc. has been hereby accepted and approved by the Company as User's
designated manager.
12. Remedies. That User will keep the components, or additional or
replacement components, insured at component cost as noted on Schedule A for the
benefit of the Company, including but not limited to, fire, vandalism,
pilferage, theft, burglary, negligent breakage, and explosion. Replacement cost
shall be used in the event of a claim. User shall include Company as an
additional insured as respects such component on policies of insurance covering
User's premises. Company shall include User as an additional insured as respects
Company User 4
---- -----
such component on policies of insurance covering components under this
Agreement. Company will maintain for the term of the Agreement commercial
general liability insurance with a limit of not less than $2,000,000 per
occurrence. User, Xxxxxx'x and Manager shall be named as additional insureds on
this policy. Prior to installation of Components, Company will provide User with
a properly executed original certificate of insurance which will evidence the
Company's general liability insurance coverage and the certificate will provide
that the insurance will not be cancelled or lapse except on 30 days prior
written notice to Xxxxxx'x Risk Management Division, 0000 Xxxxxx Xxxx, Xxxxxxx,
XX 00000. User shall provide Company proof of general liability insurance with a
limit of not less than $2,000,000 per occurrence. Company shall be named as an
additional insured on this policy. User shall furnish Company with copies of
policies evidencing said insurance by the first day of operation. User will
provide Company with a properly executed original certificate of insurance which
will evidence the Company's general liability insurance coverage and the
certificate will provide that the insurance will not be cancelled or lapse
except on 30 days prior written notice to Laser Storm, Inc., 0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, Xxxx 0, Xxxxxx, XX 00000. Subject to Paragraph 9, the Company's
liability, whether in contract or in tort, arising out of warranties,
representations, instructions or defects of any nature shall be limited to
repairing or replacing, as the Company may elect, any Components of the
Company's manufacture which are returned, with transportation charges paid, to
and from the Company by the User and as to which examination discloses to the
Company's satisfaction any defect in material or workmanship. User shall bear
all expenses of shipping any such part to and from the Company's place of
business. Once the Company provides the Laser Storm Components at no up-front
cost to the User, the Company has fulfilled its obligation to the User and as
such, no default on the part of the Company can be had. Any failure on the part
of the Company to provide additional replacement Components cannot trigger any
breach or default provision on the part of the Company. In no event shall the
Company be liable for any lost profits, compensatory incidental or consequential
damages. User agrees to pay all costs, including reasonable attorney fees and
costs of litigation, which may be incurred by the Company to collect amounts
owed by the User or to enforce any other rights of the Company. User will have
the same rights as Company when enforcing User's rights.
12.a. Should there be an unjustified termination (termination without
cause) of this Agreement by the User, the User agrees to pay to the Company
$25,000.00 for termination in months 1 through 12; $12,500.00 months 13 through
24; and $5,000 months 25 through 36. There will be no compensation for
termination after the 36th month. It is agreed that this sum is not a penalty or
a forfeiture, but a reasonable amount at which damages shall be liquidated in
the event of unjustified termination by the User, and is being agreed to due to
the difficulty in ascertaining damages upon breach by the User. Court costs,
reasonable attorney fees, interest and other court relief shall be awarded to
the Company upon court action for breach hereof, or other necessary court action
to enforce the terms hereof. User will have the same rights.
12.b. If either party does not comply with the Agreement, then the
other party may give written notice of the non-compliance to the non-complying
party. If the non-compliance is not cured (or prompt action is not commenced to
cure the non-compliance) within 30 days of receiving such notice, then the party
that gave the notice will have the right to terminate the Agreement upon ten
days' written notice. Written notice shall be given to each party either by fax,
overnight delivery or express mail to the address indicated on this Agreement.
12.c. In addition to the other termination provisions of this
Agreement, User or Company may terminate the Agreement at any time upon six
months prior written notice to the other party. Termination without cause will
invoke 12.a. above. It is further agreed this Agreement will terminate without
penalty or damages if the Casino closes its business or if there is substantial
damage to the Casino causing the Casino to be closed for a period longer than
three months. Company will have a period of 30 days after the termination date
or expiration of the Agreement to remove the Components. If not removed within
such period of time, User or Xxxxxx'x may remove the Components and may store
them or ship them to Company, as agreed by the Company, at reasonable expense to
the Company.
Company User 5
---- -----
13. Term. The term of this Agreement shall be three years from February 15,
1996, with annual renewals thereafter to be mutually agreed upon. The three-year
term of this Agreement will commence when the Components are fully installed and
are ready for customer use. The Components will be located in the area
designated by Xxxxxx'x. Both parties will use their best efforts to commence
this Agreement when the childcare facility at the Casino opens for business.
User may renew the Agreement on a year to year basis upon expiration of the
three year term of this Agreement by giving written notice of renewal at least
30 days prior to the beginning of each one year renewal.
14. Binding Nature. This agreement shall be binding upon both parties
hereto, their respective heirs, executors, administrators, successors, assigns
and transferees.
15. Ownership. Ownership, all components shall remain at all times the
property of Company, subject to use by User as herein set out. There shall be no
buy out option for components under this Agreement.
16. Safety and Environmental Standards. The Company shall not be
responsible for the compliance of the Components with any federal, state, or
local safety regulations or environmental standards.
17. Miscellaneous Matters.
17.a. It is understood that Xxxxxx'x has a 100% satisfaction guarantee
for customers. If a customer invokes the guarantee, this may require that the
customer not be charged with a player activation or that the customer receive
his/her money back. Manager or Xxxxxx'x will make this decision. No payment will
be due to Company if a non-charge or refund occurs because of the 100%
guarantee.
17.b. All advertising shall be done by User and/or Manager. All
advertising copy must be reviewed and approved by Company in advance in order to
abide by contractual obligations on the part of the Company regarding royalties,
rights and restrictions. Company shall make every effort to respond within 72
hours regarding approval or any concerns relating to any licensing issues or
inappropriate ad materials.
17.c. User agrees to maintain the "shell" of the laser tag area
including, vacuuming, carpet cleaning, painting and any other reasonable and
standard maintenance items requested by Manager.
17.d. This Agreement is subject to the Mississippi Riverboat Gaming
Control Act and any events, acts or requirements arising under such acts. In the
event Company fails to respond to, or to cooperate with, a suitability
investigation or if Company or any of its officers or affiliates is found
unsuitable under such Act, then this Agreement is subject to immediate
termination upon notice to Company.
17.e. Agreement to Perform Necessary Acts. Each party to this User
Agreement agrees to perform any further acts and execute and deliver any
documents that maybe reasonably necessary to carry out the provisions of this
User Agreement.
17.f. Amendments and Waivers. The provisions of this User Agreement
may be waived, altered, amended, or repealed, in whole or in part, only on the
written consent of all parties hereto. Waiver of any right, power, or duty by
any party hereunder shall not operate or be construed as a waiver as to any
subsequent occurrence or circumstance.
17.g. Successors and Assigns. This User Agreement, Schedules, and/or
Addendums shall be binding on, and shall inure to the benefit of, the parties to
it and their respective heirs, estates, personal representatives, legal
representatives, successors, and assigns.
17.h. Validity of Agreement. It is intended that each sentence of this
User Agreement shall be viewed as separate and divisible, and in the event that
any sentence shall be held to be invalid, the remaining sentences shall continue
to be in full force and effect.
Company User 1
---- -----
17.i. Enforcement Expenses. In the event of a breach of this User
Agreement by either party, the other party shall be entitled to recover any and
all collection costs, execution costs, court costs, professional fees, and
attorney fees incurred in seeking or obtaining said remedy.
17.j. Notices. Any and all notices to be given pursuant to or under
this User Agreement shall be sent to the Company, User and Manager as is
appropriate. Company and User's notices shall be directed to the addresses shown
below and shall be sent United States Mail, postage prepaid. Manager's notices
shall be directed to the attention of Xxxx Xxxx c/o Planet Kidz, Inc., 000
Xxxxxxxxxxx Xx., Xxxxxxx, XX 00000.
17.k. Entirety of Agreement. This User Agreement and its attached
Schedules and Addendum constitute the entire agreement between the parties
pertaining to the subject matter contained in it, and supersede all prior and
contemporaneous agreements, representations, warranties, and understandings of
the parties. No supplement, modification, or amendment of this User Agreement
shall be binding unless executed in writing by all the parties hereto. No waiver
of any of the provisions of this User Agreement shall be deemed, or shall
constitute a waiver of any other provision, whether similar or not similar, nor
shall any waiver constitute a continuing waiver. No waiver shall be binding
unless it is in writing signed by the party making the waiver.
18. Failure of Terms. The failure to require a strict compliance or
performance of any one or more terms of this User Agreement on one or more
occasions shall not be deemed a waiver of that or any other term or condition on
that or any other occasion. Any waiver of a right or remedy under this User
Agreement must be contained in a writing signed by the Company or User.
19. Assent to Terms. The confirmation and acceptance embodied in this Use
Agreement is expressly made conditional on User's assent to all terms written
hereof, even though such terms may add to or differ from any verbal terms.
The parties hereto, intending to be bound, have signed this User Agreement.
COMPANY: USER:
Company User 6
---- -----
LASER STORM, INC. XXXXXX'X VICKSBURG CORPORATION
By: Date By: Date
-------------------- -------- -------------------- ----
Address: Address:
0000 Xxxxxx Xxxxx Xxxxx Xxxxx, Xxxx 0 0000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000 Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
THE FOLLOWING PARTS CONSTITUTES THIS TOTAL AGREEMENT:
----- User Agreement
----- Schedule A (Component Description and Delivery Dates)
----- Schedule B (Site Location, Installation Date, and Installation Plan)
----- Schedule C (Service Procedures)
----- Schedule D (License and Software Specific Site Agreement)
----- Schedule E (Nondisclosure)
Company User 7
---- -----
SCHEDULE A
COMPONENT DESCRIPTION AND INSTALLATION DATES
LASER STORM(R) COMPONENTS:
18 Phasers
18 Controllers
18 Vests with Components
18 Battery Packs
36 Connecting Cords
6 Pods with bracket, connecting cables and power supplies
1 Double sided scoreboard with power supply and mounting hardware
1 StormTrak(TM) Scoring System (Optional)
Consisting of:
One 486SX 25 Computer, one Color Monitor, Keyboard, Mouse,
Printer, & Custom Software, one Box Scorecards
ARENA:
Square foot playing area: 1000 SF +/-
Arena type: Galaxy
Modular polypropylene Laser Storm Blast Barriers with
Polyethylene foam molding and nylon webbing suspension straps
Wall Barriers
Cable Grid System
Pod Housings - 4
Wildfire floods, strobes
Basic Lighting
Basic Sound
F-100 high capacity theatrical fog machine
LIGHTING: Basic lighting system, includes Robo Scans, Police Beacons,
Black Lights & Strobes
SOUND: Professional audio system includes speakers, amplifier, mixer,
equalizer, CD or tape player and racks.
MISCELLANEOUS: Vest racks
DELIVERY TERMS: Late January - Soft Opening scheduled for approximately
February 15, 1996
Company User
---- -----
SCHEDULE B
SITE LOCATION, AND INSTALLATION PLAN
User: Xxxxxx'x Vicksburg Corporation - Xxxxxx'x Vicksburg Casino
Site
Location: Xxxxxx'x Vicksburg Casino, Xxxxxxxxx, XX 00000
Company does not have any software licensees within a five mile radius and will
not enter into a Software License Agreement with a third party within that
radius.
On Site Telephone: 000-000-0000
Off Site Telephone: Planet Kidz, attn: Xxxx Xxxx 000-000-0000
Site Directions/Notes: Xxxxxx'x Casino - Vicksburg, MS - Planet Kidz
Installation Date: Soft opening scheduled for February 15, 1996
Company User
---- -----
SCHEDULE C
WARRANTY PROCEDURES
BUILT TO BLAST WARRANTY PROCEDURES
The calculation of Built to Blast warranty, provided by Company iscomputed by
using tally counters on the Energy Pods or remote access on the computer system.
Each time a player activates his or her phaser to start a game, the counters
increase by one and the appropriate charge is accrued. User/Manager must
complete the provided player activation worksheet, and submit the worksheet and
the monthly payment so that the Company receives both by the 5th day of each
month. Player activation worksheet and instructions will be provided at the time
of installation and/or training.
The Company reserves the right to audit the Energy Pod tally counters of the
User at any time to verify the number of player activations as disclosed by
User. Company also reserves the right to require the User to send to the Company
its existing Energy Pods in exchange for replacement Energy Pods, for the
express purpose of auditing the Energy Pod counters. Computer systems can be
audited remotely. In the event of any discrepancy, tampering with the Energy Pod
counters, or circumvention of their function, User shall pay to the Company any
amounts due and owing as of the audit date plus a 10% penalty based upon the
actual number of player activations. Upon audit, any additional amounts due
shall be paid within fifteen (30) days of said audit. See User Agreement.
Upon use of system, User will receive a spare components kit valued at $180.00
for a 12 player system, $360.00 for a 24 player system, $540.00 for a 36 player
system and $720.00 for a 48 player system. As long as the failed Components are
returned to us once User has replaced them from the spare Components kit, the
Company will continue to replace the used-up Components in that Kit. If failed
Components are not returned, User is responsible for replacing Components kit at
prices listed under Warranty Policies.
If User does not comply with the Warranty Procedures stated herein, Company
reserves the right to cure in accoradance with paragraphs 10 and 12 of the User
Agreement
If User returns equipment which has been damaged beyond normal operational wear,
Company will send written notice to User noting such damage.
Company User
---- -----
SCHEDULE D
LICENSE AND SOFTWARE SPECIFIC SITE AGREEMENT
NOTE: Please read this license agreement carefully as it places certain
limitations on User's ability to use the software, trademarks, trade names, and
other intellectual property that will be included with User's Laser Storm(R)
components and which may be required for the operation of User's system.
This Schedule D shall expressly modify the User's Agreement entered into on
this ___________ day of _______, 199___, by and between
_______________________________ (User) and Laser Storm, Inc., a Colorado
corporation, (hereinafter Company).
WHEREAS, User has executed an agreement to purchase from Company certain
Laser Storm(R) System Components described in that contract;
WHEREAS, said sale includes the provision of a License to use certain
software, tradenames, trademarks and other intellectual property that shall
remain the property of Company;
WHEREAS, said sale includes restrictions and burdens as well as benefits,
and User understands that the same is anticipated and agreed to within the
purchase price for the Laser Storm(R) System Components and that if User were
not willing to agree to the terms of this license, the purchase price for the
accompanying Components would be substantially greater than that negotiated by
these parties.
NOW THEREFORE, in consideration of the mutual terms, conditions and
covenants hereinafter set forth, the parties hereto agree as follows:
1. License For Use of Software. Company hereby provides User with the
non-exclusive right to use the software that has been developed for the
operation of the Laser Storm(R) System. USER MAY NOT USE, COPY, MODIFY, UPGRADE,
SERVICE, ALTER, OR TRANSFER THIS SOFTWARE OR ITS CORRESPONDING DOCUMENTATION AND
MANUALS EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT. In addition, subject to
the terms and conditions contained herein, Company hereby provides User with a
license to utilize the name "Laser Storm(R)i.
2. Terms of License. This license is effective in perpetuity provided that User
is not in default of the terms of this license and provided that User's system
with which this software was provided is still in operation in the manner
intended at the Site in Schedule B of the Sales Agreement.
3. Restricted to Purchased System. This program and License may only be used
with the Laser StormTM component which is the subject of this Agreement. In the
event that additional components are purchased, User will be provided with new
software for the additional components. User may not transfer this software for
use with any other components other than the components with which it was sold.
Violation of this paragraph will result in the termination of User's License.
4. Restricted to Specific Site.
4.a. User acknowledges that an integral part of Company's willingness to
provide a license for the use of said software and other intellectual property
is User's agreement that the license shall be limited to the specific site
pursuant to Schedule B of the Sales Agreement. User also acknowledges that this
restriction serves as a detriment to User in that it will prohibit User from
exercising this License outside of the site pursuant to Schedule B of the Sales
Agreement.
4.b. The specific site listed in Schedule B of the Sales Agreement may not
be modified, amended, changed, altered, substituted, enlarged, or condensed
without the express written permission of the User and Company.
5. Upgrades. As a licensee, Company will provide User with information
concerning any upgrades that may be available to the software for User's system.
If an upgrade is available, is operational with User' system, and User is not in
default of the Sales Agreement or attached Schedules, User will have the right
to purchase any available upgrades at the effective published price. Company
does not warrant that any particular upgrades will be made, the date by which
such upgrades may be available, or that any particular upgrade will work and be
operational with any particular previous systems.
Company User
---- -----
6. Non-transferable. As a protection to all parties, this License shall not be
transferable in any manner by User without the express written consent of the
Company except to a successor to User who acquires the business where the
Components are used.
7. Ownership by Company. User agrees and understands that the software,
tradenames, trademarks, and other intellectual property licensed herein is the
sole and exclusive property of Company.
8. Operations by User. The parties understand that the manner in which User
operates its business using this License has a bearing upon the reputation and
credibility of the Company. Company shall have the right to terminate this
License at any time that User fails to operate in a manner which will damage
Company's image. Furthermore, User must operate within the following guidelines:
8.a. User shall comply with all federal, state, and local regulations
regarding safety and the operation of laser tag arenas except where Company has
responsibility or fault.
8.b. User shall keep appropriate liability insurance in place at all times
while operating this software except as otherwise agreed.
8.c. User shall properly maintain the Laser Storm(R) Components and
software at all times.
8.d. User shall not attempt to operate said Components using software or
electronic equipment provided by any person other than the Company or through
Company's designated and approved manufacturers or vendors.
8.e. User shall not move or relocate said Components or software from its
specific site without the written approval of the Company.
9. Survival of Sale. Although this License Agreement is incorporated into the
Sales Agreement between User and the Company, the terms and conditions contained
herein shall survive the sale and any closing thereof and shall remain valid and
enforceable during the full term described herein.
10. Default. In the event of default in the performance of the terms or
conditions contained here, the Company shall be specifically permitted to
temporarily withdraw and terminate this license until further order by a court
of appropriate jurisdiction. Said termination shall commence 30 days after such
time as notice shall be given to User of said termination by registered or
certified mail unless default is cured. Either party may then request that a
court, pursuant to paragraph 12 below, either law or in equity, enter such
orders, restraining orders, mandamus orders, or orders to specifically perform
the terms and conditions herein as shall be appropriate. The prevailing party
shall be entitled to an award of its costs and attorney fees incurred in
enforcing the same.
11. Warranty. The warranties applicable to the sale of the Components and the
software, as set forth in the Sales Agreement between these parties, shall also
apply within this License. Company shall have no obligation other than to ensure
that said software will effectively operate the System Components in the manner
originally intended and Company provides no warranty concerning future upgrades
or changes to the same.
12. Miscellaneous Matters.
12.a. Agreement to Perform Necessary Acts. Each party to this License
agrees to perform any further acts and execute and deliver any documents that
may be necessary to carry out the provisions of this License.
12.b. Amendments and Waivers. The provisions of this License may be waived,
altered, amended, or repealed, in whole or in part, only on the written consent
of all parties hereto. Waiver of any right, power, or duty by any party
thereunder shall not operate or be construed as a waiver as to any subsequent
occurrence or circumstance.
Company User
---- -----
12.c. Successors and Assigns. This License shall be binding on, and shall
inure to the benefit of, the parties to it and their respective heirs, estates,
personal representatives, legal representatives, successors, and assigns.
12.d. Validity of Agreement. It is intended that each sentence of this
License shall be viewed as separate and divisible, and in the event that any
sentence shall be held to be invalid, the remaining sentences shall continue to
be in full force and effect.
12.e. Enforcement Expenses. In the event of a breach of this License by any
party, the non-breaching party shall be entitled to recover any and all
collection costs, execution costs, sales costs, court costs, professional fees,
and attorney fees incurred in seeking or obtaining said remedy.
12.f. Notices. Any and all notices to be given pursuant to or under this
License shall be sent to the Company or User at the address noted below, and
shall be sent Certified Mail, Return Receipt Requested.
12.g. Failure of Terms. The failure to require strict compliance or
performance of any one or more terms of this License one or more occasions shall
not be deemed a waiver of that or any other term or condition on that or any
other occasion. Any waiver of a right or remedy under this License must be
contained in a writing signed by the waiving party.
The parties hereto, intending to be bound, have signed this License and
Software Specific Site Agreement as of the date and year first above written.
LASER STORM, INC. XXXXXX'X VICKSBURG CORPORATION
By: Date By: Date
-------------------- -------- -------------------- ----
Address: Address:
0000 Xxxxxx Xxxxx Xxxxx Xxxxx, Xxxx 0 0000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000 Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Company User
---- -----
SCHEDULE E
NONDISCLOSURE AGREEMENT
This Agreement entered into on this ____ day of _______________, 199_____
by and between ______________________, a ____________ corporation (hereinafter
User); and Laser Storm, Inc., a Colorado corporation (hereinafter Company).
WHEREAS, the parties desire for their mutual benefit, and to facilitate the
sale of the Laser Storm(R)Components, to advise, inform and provide each to the
other certain data and information relating to the Laser Storm(R)Components and
their respective business practices, portions of which are proprietary and
confidential in nature and constitute trade secrets;
WHEREAS, the parties desire to protect the confidentiality of their
respective information, which may be communicated by the spoken word or fixed or
recorded in the form of writings, graphic illustrations, diagrams, schematic
drawings, electrical transcriptions, models, prototypes, demonstration units or
encoded data in various formats including microelectronic devices and analog and
digital electronic or magnetic recordings; and
WHEREAS, the parties wish to protect this information from being used by
the other party in direct competition with each other and to protect this
information from being disseminated to unauthorized third persons;
NOW THEREFORE, the parties covenant and agree as follows:
1. Confidential Information.++Each party hereto (hereinafter the Recipient)
acknowledges that any and all information that the other party (hereinafter the
Discloser) has or will disclose to Recipient with respect to the business of the
Discloser, including, but not limited to trade secrets, trademarks, proprietary
marks, computer programs and other software, flow charts, plans, methods, data,
processes, marketing strategies, techniques, identification schemes, know-how
and financial condition of the Discloser of any kind or nature ("Confidential
Information"), is confiden tial, proprietary, nonpublic information of the
Discloser. Confidential Information shall include all information given by the
Discloser to the Recipient whether or not it is entitled to protection under
statutory or common law, including laws concerning copyrights, patents,
trademarks, servicemarks or similar laws or regulations unless such information
is or shall become, through no act of the Recipient which violates any provision
of this Agreement, (i) in the public domain, (ii) available from a third party,
or (iii) information that the Recipient has prior or independent knowledge
thereof.
2. Restriction on Disclosure and Use.++Recipient acknowledges that all
Confidential Information is proprietary information of the Discloser and,
without the prior written consent of the Discloser, agrees that it will not
disclose any Confidential Information directly or indirectly to any person other
than those key employees of Recipient whom the disclosure thereof is required
for the purposes of the Sales Agreement. Recipient further agrees that it will
not utilize or otherwise incorporate or use any such Confidential Information in
any of its or any subsidiary or affiliated company's business, regardless if
such subsidiary or affiliated company is presently in existence or hereafter
formed, except as is permitted by this Agreement.
3. Restriction on Decompiling. User shall not modify, adapt, translate,
decompile, disassemble or reverse engineer components of the Systems or Software
nor authorize others to do the same. In addition, User shall not replicate,
produce, distribute, or manufacture any System or system components or the
Software that are available for purchase from Company, nor shall it obtain
system parts or components from any entity other than the Company without the
prior written authorization of the Company.
4. Key Employee Agreements.++Recipient shall use its best efforts to cause
each director, officer and key employee of Recipient to whom the Discloser's
Confidential Information covered by this Agreement is disclosed, to abide by
confidentiality obligations established by Xxxxxx'x Vicksburg Corporation.
Company User
---- -----
5. Independent Knowledge. A party claiming independent or prior knowledge
of information shall, upon request, promptly prepare and deliver to the other a
writing describing with particularity the nature of the Confidential Information
and the source of its prior or independent knowledge.
6. Term. The term of this Agreement shall begin upon execution of this
Agreement and shall end upon the later of the expiration of the term(s) of all
agreements between the parties or the complete discontinuation of the marketing
by Company of all equipment of the type owned by User. Notwithstanding the
expiration of the term, the parties agree to use reasonable efforts to continue
to perform the terms of this Agreement as long as Confidential Information is of
value to the Discloser thereof.
7. Agreements. This Agreement is entered into to protect the
confidentiality of the Confidential Information and not to authorize any
particular use of the Confidential Information. Uses of the Confidential
Information shall be governed by other separate written agreements and licenses
between the parties.
8. Default.++The Recipient acknowledges that any disclosure or unauthorized
use of the Disclosure's Confidential Information will cause the Discloser
irreparable harm, for which an adequate remedy at law will not exist and, that
upon breach of this Agreement by the Recipient, the Discloser may seek and
receive an immediate injunction, restraining order or preliminary injunction
against the Recipient to further prevent the breach of this Agreement, in
addition to any other remedy to which the Discloser would be entitled as a
result of the breach of this Agreement by the Recipient. The prevailing party
shall be entitled to an award of its costs and attorney fees incurred in
enforcing this Agreement.
9. Return of Confidential Information.++Upon the termination of this
Agreement, whether for cause or otherwise, the Recipient shall immediately
return to the Discloser all Confidential Information in written or other media
form, including all computer programs and other software, and the Recipient
shall certify in writing that it has not kept any copies thereof.
10. Jurisdiction. This Agreement shall be governed by and interpreted under
the laws of the State of Colorado and jurisdiction for any dispute shall be in
the City and County of Denver, State of Colorado.
11. Survival of Sale. Although this Agreement is incorporated into the
Sales Agreement between User and the Company, the terms and conditions contained
herein shall survive the sale and any closing thereof and shall remain valid and
enforceable during the full term described herein.
12. Miscellaneous Matters.
12.a. Agreement to Perform Necessary Acts. Each party to this
Agreement agrees to perform any further acts and execute and deliver any
documents that may be reasonably necessary to carry out the provisions of this
Agreement.
12.b. Amendments and Waivers. The provisions of this Agreement may be
waived, altered, amended, or repealed, in whole or in part, only by the written
consent of all parties hereto. Waiver of any right, power, or duty by any party
hereunder shall not operate or be construed as a waiver as to any subsequent
occurrence or circumstance.
12.c. Successors and Assigns. This Agreement shall be binding on, and
shall inure to the benefit of, the parties to it and their respective heirs,
estates, personal representatives, legal representatives, successors and
assigns.
12.d. Validity of Agreement. It is intended that each provision of
this Agreement shall be viewed as separate and divisible, and in the event that
any provision shall be held to be invalid, the remaining provisions shall
continue to be in full force and effect.
12.e. Notices. Any and all notices to be given pursuant to or under
this Agreement shall be given in accordance with the Sales Agreement.
Company User
---- -----
12.f. Definitions. All capitalized terms not defined herein shall have
the meaning ascribed to them in the User's Agreement.
In witness whereof, the parties hereto, intending to be bound, have signed
this Agreement as of the date and year first above written.
LASER STORM, INC. XXXXXX'X VICKSBURG CORPORATION
By: By:
----------------------- ---------------------------
Title: Title:
-------------------- ------------------------
Date: Date:
---------------------- --------------------------
