CBS SOFTWARE SUPPORT AGREEMENT
THIS AGREEMENT is made the 18th day of June, 2002, by and between COMPUTERIZED
BOOKMAKING SYSTEMS, INC., a company incorporated in the state of Nevada, United
State of America, and having its principal office at 000 Xxxxx Xxxxx, Xxx Xxxxx,
Xxxxxx, 00000 (hereinafter called "CBS")
AND
MEGASPORTS (ACT) PTY. LTD. (ABN 54 081 251 470), a company incorporated in the
Australian Capital Territory, Australia, and having its principal office at 00
Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx Xxxxxxx Xxxxxxxxx (hereinafter called
"Customer").
WITNESSETH
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WHEREAS, CBS has developed a computerized race and sports book wagering system
including accompanying point-of-sale terminals (the "System") for use within the
race/sports industry.
WHEREAS, the System is comprised of numerous inter-related software modules.
WHEREAS, CBS owns all of the intellectual property rights associated with the
System.
WHEREAS, Customer has received a license to utilize the System and/or the
intellectual property of CBS pursuant to a separate Purchase Agreement and/or
License Agreement.
WHEREAS, CBS desires to service the System for the Customer.
WHEREAS, the Customer desires to have CBS service the System.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
hereinafter contained, the parties hereto agree as follows:
1. Term. The term of this Agreement shall begin on the 1st day of July,
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2002, (the "Effective Date") and shall terminate twenty-four (24) months later
(the "Support Period").
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2. Software Support.
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a. CBS software support personnel in Las Vegas, Nevada shall be on call
24 hours per day, 7 days per week, and shall provide service which is
necessary to maintain the System in good operating condition and to
the specifications at time of delivery and subsequent modifications
made by CBS personnel pursuant to this Agreement (the "Software
Support"). As part of the Agreement, and without cost to the Customer,
CBS shall notify the Customer of and implement new or improved basic
services perfected by CBS.
b. CBS shall make its best, good faith effort to respond to the
Customer's request for emergency service within one-half (1/2) hour.
The Customer shall have made all reasonable attempts to correct a
failure in accordance with CBS instructions before an emergency call
is placed.
c. CBS shall be under no obligation to furnish service under this
Agreement should repair be required because of (1) improper use by the
Customer or the Customer's employees; (2) natural disasters; (3)
strikes, riots, acts of war or other national emergency (4) repair,
maintenance, modifications of hardware and software, or relocation and
reinstallation made by other than CBS personnel without CBS'
supervision and approval; (5) causes other than ordinary use and (6)
failure of the Customer to maintain the site specifications. If
services are required as a result of causes above, such service will
be provided in accordance with Clause 8 below.
d. A System failure will be deemed to exist when the Customer experiences
a disruption of System functions so that all, or a large part of the
System, is impaired.
e. Software Support does not include:
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(1) Computer hardware regardless of whether such hardware was originally
supplied by CBS;
(2) Any third-party software (i.e., software not developed by CBS)
including, but not limited to, networking software, firewall software,
e-mail software, etc.; or
(3) The Customer's local area network ("LAN") and/or wide area (Internet)
network ("WAN").
3. Fee. During the Support Period, CBS shall provide the Customer up to a
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maximum of one hundred (100) man-hours of Software Support at no cost. After
CBS has provided the Customer with one hundred (100) man-hours of free Software
Support, CBS shall be obligated to continue to provide Software Support during
the Support Period and the Customer shall be obligated to pay CBS at a rate of
One Hundred Fifty Australian Dollars ($150.00 AUD) per hour for each and every
hour spent by CBS over and above the initial one hundred (100) hours. CBS shall
provide a billing statement to the Customer within thirty (30) days of
completion of billable Software Support. Payment shall be made to CBS at the
address and on the terms set forth in the billing
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statement (providing, however, that CBS shall allow the Customer a minimum of
thirty (30) days from the billing statement date in which to make payment). If
all amounts are not paid within thirty (30) days after the due date, interest at
the rate of one and one half percent (1 1/2%) per month starting from the day
immediately following the due date shall be imposed on such amounts, and CBS may
refuse to provide services hereunder for so long as the failure of the Customer
to pay continues, and, in addition to any other legal remedies available, CBS
may terminate this Agreement, remove all equipment owned by CBS, if any, and be
relieved of and discharged from any and all further responsibility, liability or
obligations hereunder. CBS may pursue any and all remedies by law to collect all
sums of money due CBS.
a. Pursuant to the terms of a separate agreement, CBS, through its parent
corporation, has agreed to provide the Customer with the CBS
Electronic Interface on or before July 1, 2002.
b. CBS shall undertake reasonable modifications to the Electronic
Interface at the Customer's request provided, however, that CBS shall
be required to provide only Twenty Five (25) hours of free support for
this purpose; any time expended by CBS to implement Customer's
requests in excess of Twenty Five (25) hours shall be billed to
Customer at the rate of One Hundred Fifty Australian Dollars ($150.00
AUD) per hour.
c. CBS shall provide Customer all reasonable assistance in transferring
the Customer's data from the CBS race and sports wagering system to
Customer's third-party analysis software (i.e., database, spreadsheet,
storage, etc.) provided, however, that CBS shall not be responsible
for maintaining said third-party software. Said assistance shall not
reduce the one hundred (100) man-hours of free support nor shall it be
otherwise billable to Customer.
4. Access. The Customer shall afford CBS and its duly authorized agents or
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representatives access at all reasonable times to the System and/or the
buildings/premises, and will permit CBS and such agents or representatives to
inspect, during each wagering day and at all other reasonable times, relevant
information kept by the Customer with respect to the operation of the System and
will make available to CBS all sheets required by it to verify the operation of
the System, including ticket summary sheets and other pertinent records in order
to identify where problems occurred. Such access must include remote access via
a Virtual Private Network ("VPN") similar to that in place as of the Effective
Date including access through the firewall; while CBS shall not be responsible
for maintaining the VPN, personnel of CBS shall provide Customer all reasonable
assistance to ensure the stability of the VPN. An inability by CBS to gain
remote access to the System in order to correct problems shall not constitute a
breach of this Agreement.
5. Limitation of Use. The Customer shall not use the System for any purpose
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other than as it was designed/intended and will not permit any part of the
System to be removed from the Customer's premises and/or control by persons
other than agents or employees of CBS, without the consent of CBS, which will
not be unjustly withheld.
6. Compliance with Law. The Customer and CBS, where applicable, shall
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comply with all rules,
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laws, ordinances and lawful requirements of every government, county, state,
territory, or municipality, department, bureau or board which may arise out of
or in connection with the possession, use and/or operation of the System and/or
wagering, including fire insurance underwriters' requirements. The Customer
shall also furnish, at its sole cost and expense, the safety devices needed to
comply with such requirements.
7. Indemnification. CBS shall indemnify and hold the Customer harmless
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against any loss, liability, costs or expenses (including reasonable attorney's
fees) arising out of or related to claims or suits for damages, which may be
instituted against the Customer, or to which the Customer may be made a party,
to persons or property, including patent claims arising out of or by reason of
the services provided herein by CBS provided written notice of such claim is
given to CBS within ten (10) days after receipt of same by the Customer. CBS
shall have the right to exercise full control of all negotiations and litigation
in connection therewith, including selection of counsel, and shall not be liable
for any costs or expenses incurred by the Customer without CBS's prior written
approval, nor shall CBS be responsible for any claims or litigation based on
software/equipment not furnished by CBS as part of its services hereunder. The
Customer shall indemnify and hold CBS harmless against any loss, liability,
costs or expenses (including reasonable attorney's fees) arising out of or
related to claims or suits for damages, which may be instituted against CBS, or
to which CBS may be made a party, to persons or property, resulting from the
operation of the System by agents and employees of the Customer provided written
notice of such claim is given to the Customer within ten (10) days after receipt
of same by CBS. The Customer shall have the right to exercise full control of
all negotiations and litigation in connection therewith, including selection of
counsel, and shall not be liable for any costs or expenses incurred by CBS
without the Customer's prior written approval.
8. Additional Obligations. Except as herein provided, CBS shall be under no
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obligation to furnish services to the Customer in excess of those specified
herein nor shall the Customer be entitled to additional services unless a
supplementary agreement is entered into between the parties, providing for the
desired additions, upon terms acceptable to both parties.
9. Default.
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a. In the event that CBS shall default in the performance of any
provision of this Agreement on its part to be performed and such
default shall not be cured within a period of ten (10) days after
written notice shall have been received by CBS specifying such
default, then the Customer may terminate the Agreement by delivering
to CBS written notice of such termination prior to the expiration of
thirty (30) days after the expiration of said ten (10) day period; and
in the event of any such termination, CBS, at its sole cost and
expense, shall remove its personnel, and any equipment owned by CBS,
if any. In addition, CBS shall be obligated to provide a refund to the
Customer in the amount of One Hundred Fifty Australian Dollars
($150.00 AUD) times the number of man-hours remaining unused by the
Customer pursuant to Clause 3.
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b. In the event that the Customer shall default in the performance of any
provisions of this Agreement on its part to be performed (except a
breach by the Customer of the provisions of Clause 3 hereof as to
which the provisions of said paragraph shall apply) and such default
shall not have been given by CBS to the Customer specifying such
default, then CBS may terminate this Agreement by delivering to the
Customer written notice of such termination after the expiration of
said ten (10) day period; and in the event of any such termination CBS
shall remove the equipment owned by CBS, if any, and the cost of such
removal shall be paid for by the Customer.
c. Failure to perform any provision of this Agreement by either party
hereto shall not constitute a default hereunder if such failure shall
be caused by fire, strike, boycott, picketing, or other industrial
disturbances, riot, civil commotion, theft, vandalism, flood,
lightning, tempest, storm, acts of God, war, acts of war and defense,
power failure, failure of any cable or interference by any government
or government agency.
d. In the event that CBS terminates this Agreement as provided herein,
all then outstanding amounts become due and payable.
10. Waiver. No waiver of any term, condition, or obligation of this
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Agreement or assent to the breach of any term, condition, or obligation shall be
construed by the failure of either party to act in the event the other party
shall be in default of this Agreement, nor shall such failure to act be
construed as assent to any other or future breach of the same or any other term,
condition, or obligation of this Agreement.
11. Modification. This Agreement shall not be modified, altered, amended,
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or changed without the prior written consent of both parties.
12. Notice. Any notice to be given to CBS hereunder shall be duly given by
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mailing the same by registered or certified mail, return receipt requested,
addressed to CBS at the address first written above, or such other address as
CBS shall specify in writing to the Customer. Any notice to be given to the
Customer hereunder shall be duly given by mailing the same by registered or
certified mail, return receipt requested, addressed to the Customer at the
address first written above, or such other address as the Customer shall specify
in writing to CBS.
13. Remedies. The remedies expressly provided in this Agreement for breach
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thereof by CBS or the Customer shall constitute the sole and exclusive remedies
to the aggrieved party, and all other remedies which might be otherwise
available under the law of any jurisdiction are hereby waived by both CBS and
the Customer.
14. Assignment. This Agreement shall be binding upon and inure to the
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benefit of CBS and the Customer and their successors and assigns. No assignment
of this Agreement shall be made without the prior consent of the other party,
which consent shall not be unreasonably withheld.
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15. Unenforceable Provision. If any term or provision of this Agreement
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shall be declared invalid or unenforceable, the remainder of this Agreement or
the application of such term or provision other than those which are held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and enforced to the fullest extent
permitted by law.
16. Applicable Law. This Agreement shall be governed in all respects by the
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laws of the State of Nevada, United States of America.
17. Attorneys' Fees. Should any action be brought to enforce any provision
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of this Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees and costs, including all attorneys' fees and costs incurred on
any appeal, or in the collection of any amounts determined to be due hereunder
or in any court action with respect thereto.
18. Entire Agreement. This Agreement constitutes the entire agreement
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between the parties as to the subject matter hereof. Any prior or
contemporaneous understandings or agreements, oral or written, are hereby
cancelled and superseded by this Agreement and are of no further force or
effect.
19. Headings. The headings of the paragraphs of this Agreement are for
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convenience only, and shall not affect the construction or interpretation of any
of its provisions.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written
Computerized Bookmaking Systems, Inc. MegaSports (ACT) Pty. Ltd.
/s/ Xxxxxxx X. Xxxxxxxxx /s/ Xxxxx Xxxxxx
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By: Xxxxxxx X. Xxxxxxxxx By: Xxxxx Xxxxxx
Its: Secretary/Treasurer Its: Managing Director
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