EXHIBIT 6.2
Atlantic International Entertainment, Ltd.
SALES AGREEMENT
This License Agreement ("Agreement") is made this 9th day of April, 1999,
between Atlantic International Entertainment, Ltd., a Florida corporation, whose
registered office address is 200 E. Palmetto Park Road, Suite 200, Boca Raton,
Xxxxxxx 00000, XXX ("AIE"), and Intercapital Global Fund, Ltd. ("Licensee"),
whose registered office address is: One High Street, St. Xxxx, Antigua. Licensee
and AIE agree as follows:
1. Definitions
1.1. "Code" means computer programming object code, which is substantially
or entirely in binary form, which is directly executable by a computer
without the intervening steps of compilation or assembly.
1.2. "Licensed Software" means releases of the commercially available ICE
software product and related online documentation. ICE includes the
following games, (Blackjack, Video Poker, Roulette, Slots, Mini
Baccarat, Sic Bo, Keno and Scratch Off).
1.3. "Upgrade" means maintenance modifications and enhancements that modify
the Licensed Software.
2. Responsibilities of Licensee
2.1. Licensee agrees to pay for the Licensed Software at the prices set
forth in Section 7.
2.2. Licensee agrees to participate in the AIE training program for support
and use of Licensed Software.
2.3. Licensee shall provide a valid gaming license to AIE prior to
installation of Licensed Software.
2.4. Licensee shall provide the completed instalation checklist to AIE
prior to installation.
2.5. Licensee shall ensure the proper preparation of the installation site.
2.6. Licensee shall purchase hardware per AIE's hardware requirement
specifications.
3. Responsibilities of AIE
3.1. AIE shall provide one copy of the Licensed Software.
3.2. AIE shall provide copies of Upgrades to the Licensed Software.
3.3. AIE shall provide on site installation of Licensed Software at no
additional fee.
3.4 AIe shall provide three days training to Lincensee in Boca Raton or at
the Licensee site during installation at no additional fee.
3.5. AIE shall provide one customized lobby graphics screen, customized
card back design, customized coin design and room lobbies at no
additional fee.
4. Public Relations
4.1. AIE is granted the right to make a public announcement referencing the
Licensee.
4.2. Licensee agrees not to change or remove any AIE xxxx on Licensed
software.
5. Ownership and Licenses
5.1. Intellectual Property
5.1.1. AIE retains sole and exclusive ownership of all worldwide
copyrights, patents, trade secrets, know-how and other
intellectual property right in and to the Licensed Software
and Upgrades as they exist now or in the future.
5.1.2. Licensee acknowledges that AIE owns all right, title and
interest in the AIE name and logotype and xxxx and is the
owner of certain other AIE registered or common law trademarks
and tradenames. Licensee acknowledges that Licensee will not
use or acquire any interest in any of these trademarks or trade
names by virtue of this Agreement, or the activities of either
of us under it.
5.1.3. AIE acknowledges that Licensee owns all right title and
interest in the Licensee name and logotype. AIE acknowledges
that it will not acquire any interest in the Licensee name or
xxxx by virtue of this Agreement or the activities of either
of us under it.
6. AIE grants to Licensee
6.1. AIE grants to Licensee, and its subsidiaries, a nonexclusive license
under copyrights, know-how and trade secrets to use, display, execute
in object Code only one copy of the Licensed Software. The "one" copy
of software may not be shared or used concurrently by multiple, or
differently named or identified websites.
7. Fees and Payments
7.1 Licensee shall purchase the Licensed Software for the following
amount $150,000.00, with a credit for existing software in the amount
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of $75,000.00. The remaining balance of $75,000.00 shall constitute
the new purchase price and will be due at signing of this Agreement,
and Seven (7%) of Net win as a royalty. Additionally Intercapital
Global Fund, Ltd., will purchase a second ICE software system for the
purchase price of $35,000.00 at signing of this Agreement. The
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purchase price shall be paid as follows: $35,000.00 due upon signing
of this Agreement and Seven (7%) of the Net win paid as a royalty,
paid quarterly.
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7.2. AIE grants Intercapital Global Fund, Ltd. the ability to purchase up
to two (2) additional casinos for the following purchase price:
Intercapital Global Fund, Ltd. will pay $35,000.00 upon contract
signing AND a further sum of seven (7%) of the Net win as a royalty,
paid monthly.
7.3. Licensee shall send all payments, referencing this Agreement to:
Atlantic International Entertainment, Ltd. 000 Xxxx Xxxxxxxx Xxxx
Xxxx., Xxxxx 000 Xxxx Xxxxx, Xx. 00000.
7.4. The fees payable by Licensee are exclusive of taxes. Licensee shall
pay or reimburse AIE for all taxes, including sales or use taxes,
however designated, imposed as a result of the existence or operation
of this Agreement, except income and franchise tax imposed on AIE by
any government entity. If applicable, Licensee may, in lieu of paying
sales and/or use taxes, furnish to AIE a tax exemption certificate,
which is acceptable to the appropriate taxing authority.
7.5. In the event payment is not made when due, all amounts over due shall
bear interest at the rate of 1.5% per month or, if lower; AIE retains
the right to terminate the licensed software until such time as all
payments are paid in full.
8. Warranty and Indemnification
8.1. Warranty Disclaimer
8.1.1. The Licensed Software and any Upgrades are provided "as is"
with no representations or warranties of any kind, whether
express or implied, including without limitation, implied
warranties of MERCHANTABILITY and/or fitness for a particular
purpose. AIE does warrant that the Licensed Software, Upgrades
and/or use of either or both of them will not infringe any
intellectual property rights of third parties.
8.1.2. AIE does not warrant any hardware or non-AIE software or
operating system software.
9. Term and Termination
9.1. This Agreement shall be effective as of the last date on the
signature page hereof ("Effective Date") and shall continue for a
minimum of four(4) years unless terminated by AIE with AIE giving
written notice to the other with a least thirty (30) days prior
notice.
9.2. AIE shall have the right to terminate this Agreement for material
breach by the other party. Termination shall become effective sixty
(60) days after written notice to the Licensee has been sent. Such
notice shall specifically identify the nature of the breach and state
an intent to terminate in the event the breach is not cured within
said sixty-(60) day's period. Written notice shall be signed by an
authorized representative and shall be sent in accordance with
Subsection 14.12, "Notices."
9.3. Upon termination or expiration of the Agreement, the Licensee will
return all Licensed Software to AIE.
9.4. Survival After Termination or Expiration
9.4.1. The provisions of Section 5 "Ownership and Licenses," Section
7 "Fees and Payments," Section 8 "Warranty and
Indemnification," Section 9 "Term and Termination," Section 10
"Limitation of Liability," Section 11 "Compliance with Laws,"
Section 12 "Confidential Information," Section 13 "Force
Majeure," Section 14 "General," shall survive and continue
beyond any expiration or termination of this Agreement, except
that licenses granted to Licensee by AIE shall not survive if
the agreement is terminated for a material breach by Licensee.
10. Limitation of Liability
10.1. In no event will either party be liable to the other for any
incidental or special damages, lost profits, lost savings, or any
other consequential damages regardless of the form of action, even if
such party has been advised of the possibility of such damages,
resulting from the subject matter of this Agreement.
11. Compliance with Laws
11.1. Each party will comply with all applicable laws and regulations and
ordinances including, but not limited to, the regulations of the U.S.
Government relating to the export of commodities and technical data
insofar as they relate to the activities under this Agreement. Each
party hereby gives its written assurance that neither products nor
any technical data provided by the other party under this Agreement,
is intended to be shipped, directly or indirectly, to the prohibited
countries identified by the U.S. Government.
12. Confidential Information
12.1. All Confidential information exchanged by the parties shall be in
accordance with a Mutual Confidential Information Agreement.
13. Force Majeure
13.1. Neither party to this Agreement shall be liable for its failure to
perform any of its obligations hereunder during any period in which
such performance is delayed by circumstances beyond its reasonable
control, including but not limited to: fire, act of nature, or,
embargo, riot or the intervention of any government authority,
provided that the party suffering such delay immediately notifies the
other party of the delay
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14. General
14.1. Neither party may assign any of its rights or obligations under this
Agreement to any third party without the express written consent of
the other; provided, however, either party shall be permitted to
assign this Agreement and the rights and licenses hereunder to any
assignee, transferee, or "spin off" of substantially all of the
assets of the organization that has responsibility for the Licensed
Software.
14.2. Except as otherwise expressly provided herein, the rights and
remedies of the parties provided in this Agreement shall not be
exclusive and are in addition to any other rights and remedies
provided at law or in equity.
14.3. Each party, including its servants, agents and employees, is deemed
to be an independent contractor and not an agent, joint venturer,
employee, or representative of the other, and neither party may
create any obligations or responsibilities on behalf of or in the
name of the other party.
14.4. If any provision of this Agreement is held illegal or unenforceable
by any court of competent jurisdiction, such provision shall be
modified to the minimal extent required to make it legal and
enforceable, consistent with the spirit and intent of the Agreement.
If such provision cannot be so modified, the provision shall be
deemed separable from the remaining provisions of this Agreement and
shall not affect or impair the validity or enforceability of the
remaining provisions of this Agreement.
14.5. This Agreement shall be governed by the laws of the State of Florida
applicable to agreements made and performed entirely within such
jurisdiction except that the conflict of laws provisions of the
State of Florida relating to determination of the applicable forum
law to be used shall not apply.
14.6. No rights or licenses are granted hereunder, expressly or by
implication or estoppel, to assign or grant, any rights or licenses
to any trademarks of either party, or to any inventions of either
party except as may be expressly provided herein.
14.7. The failure of either party to enforce, in any one or more
instances, any of the terms or conditions of the Agreement shall not
be construed as a waiver of the future performance of any such term
or condition.
14.8. Nothing contained in this Agreement shall prevent either party from
entering into agreements with third parties which are similar to
this Agreement, or from independently developing (either through
third parties or through the use of its own personnel), or from
acquiring from third parties, technologies or product or services
which are similar to and competitive with that of the other party.
14.9. Neither party shall disclose the existence or terms and conditions
of the Agreement to third parties except with prior written
agreement of the other party or in response to order of a court or
government agency.
14.10. Except for actions to recover payments under this Agreement, no
actions, regardless of form, arising out this Agreement, may be
brought by either party more than one (1) year after the cause of
action has arisen.
14.11. This Agreement expresses the entire agreement and understanding of
the parties with respect to the subject matter hereof and supersedes
all prior oral or written agreements, commitments and understandings
pertaining to the subject matter hereof. Any modifications of or
changes to this Agreement shall be in writing and signed by both
parties.
14.12. Notices
14.12. Notices under this Agreement shall be addressed to:
To AIE: Atlantic International Entertainment, Ltd.
000 Xxxx Xxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
ATTN: Sr. V.P. of Operations/General Manager
To Intercapital Global Fund, Ltd.
One High Street
St. Xxxx, Antigua
ATTN:
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date first written above.
Atlantic International Entertainment, Ltd.
By: /s/ Xxxxx X. Xxxxx By:
------------------- ------------------
Signature Signature
Print Name Xxxxx X. Xxxxx Print Name
-------------- ---------------
Atlantic International Entertainment, Ltd.
SALES AGREEMENT
The License Agreement ("Agreement") is made this 9th day of April, 1999, between
Atlantic International Entertainment, Ltd., a Florida corporation, whose
registered office address is 200 E. Palmetto Park Road, Suite 200, Boca Raton,
Xxxxxxx 00000, XXX ("AIE"), and Intercapital Global Fund, Ltd. ("Licensee"),
whose registered office address is; One High Street, St. Xxxx, Antigua.
Licensee and AIE agree as follows:
1. Definitions
1.1. "Code" means computer programming object code, which is substantially
or entirely in binary form, which is directly executable by a computer
without the intervening steps of compilation or assembly.
1.2. "Licensed Software" means releases of the commercially available
webSports(TM) software product and related user's manuals.
1.3. "Upgrade" means maintenance modifications and enhancements that modify
the Licensed Software.
2. Responsibilities of Licensee
2.1. Licensee agrees to pay for the Licensed Software at the prices set
forth in Section 7.
2.2. Licensee agrees to participate in the AIE training program for support
and use of Licensed Software.
2.3. Licensee shall provide a valid gaming license to AIE prior to
installation of Licensed Software.
2.4. Licensee shall provide the completed installation checklist to AIE
prior to installation.
2.5. Licensee shall ensure the proper preparation of the installation site.
2.6. Licensee shall purchase the hardware as identified by AIE.
3. Responsibilities of AIE
3.1. AIE shall provide one copy of the Licensed Software.
3.2. AIE shall provide copies of Upgrades to the Licensed Software.
3.3. AIE shall provide on site installation of Licensed Software at no
additional fee.
3.4. AIE shall provide three days training to Licensee in Boca Raton or at
the Licensee site during installation at no additional fee.
3.5. AIE shall provide one customized lobby graphics screen at no
additional fee.
4. Public Relations
4.1. AIE is granted the right to make a public announcement referencing the
Licensee.
4.2. Licensee agrees not to change or remove any AIE xxxx on Licensed
Software.
5. Ownership and Licenses
5.1. Intellectual Property
5.1.1. AIE retains sole and exclusive ownership of all worldwide
copyrights, patents, trade secrets, know-how and other
intellectual property right in and to the Licensed Software and
Upgrades as they exist now or in the future.
5.1.2 Licensee acknowledges that AIE owns all right, title and
interest in the AIE name and logotype and xxxx and is the owner
of certain other AIE registered or common law trademarks and
tradenames. Licensee acknowledges that Licensee will not use or
acquire any interest in any of these trademarks or trade names
by virtue of this Agreement, or the activities of either of us
under it.
5.1.3. AIE acknowledges that Licensee owns all right title and
interest in the Licensee name and logotype. AIE acknowledges
that it will not acquire any interest in the Licensee name or
xxxx by virtue of this Agreement or the activities of either of
us under it.
6. AIE grants to Licensee
6.1. AIE grants to Licensee, and its subsidiaries, a nonexclusive license
under copyrights, know-how and trade secrets to use, display, execute
in object Code only one copy of the Licensed Software. The "one" copy
of software may not be shared or used concurrently by multiple, or
differently named or identified websites.
7. Fees and Payments
7.1. Licensee shall purchase the Licensed Software for $165,000.00, with a
credit for existing software in the amount of $82,500.00. The
remaining balance of shall be paid as follows: $82,500.00 due at
---------
signing of this agreement, and Seven (7%) of Net win as a royalty.
Additionally, Intercapital Global Fund, Ltd. will purchase a second
webSports software system for the purchase price of $25,000.00. The
---------
purchase price shall be paid as follows, $25,000.00 due upon signing
of this agreement, and Seven (7%) of Net win as a royalty, paid
quarterly.
7.2. AIE grants Intercapital Global Fund, Ltd. the ability to purchase up
to two (2) additional webSports software systems for the following
purchase price: Intercapital Global Fund, Ltd. will pay $25,000.00
upon contract signing AND a further sum of seven (7%) of the Net win
as a royalty, paid monthly.
7.3. Licensee shall send all payments, referencing this Agreement to:
Atlantic International Entertainment, Ltd. 000 Xxxx Xxxxxxxx Xxxx
Xxxx., Xxxxx 000 Xxxx Xxxxx, Xx. 00000.
7.4. The fees payable by Licensee are exclusive of taxes. Licensee shall
pay or reimburse AIE for all taxes, including sales or use taxes,
however designated, imposed as a result of the existence or operation
of this Agreement, except income and franchise tax imposed on AIE by
any government entity. If applicable, Licensee may, in lieu of paying
sales and/or use taxes, furnish to AIE a tax exemption certificate,
which is acceptable to the appropriate taxing authority.
7.5. In the event payment is not made when due, all amounts over due shall
bear interest at the rate of 1.5% per month or, if lower; AIE retains
the right to terminate the licensed software until such time as all
payments are paid in full.
8. Warranty and Indemnification
8.1. Warranty Disclaimer
8.1.1. The Licensed Software and any Upgrades are provided "as is"
with no representations or warranties of any kind, whether
express or implied, including without limitation, implied
warranties of MERCHANTABILITY and/or fitness for a particular
purpose. AIE does warrant that the Licensed Software, Upgrades
and/or use of either or both of them will not infringe any
intellectual property rights of third parties.
8.1.2. AIE does not warrant any hardware or non-AIE software or
operating system software.
9. Term and Termination
9.1. This Agreement shall be effective as of the last date on the signature
page hereof ("Effective Date") and shall continue for a minimum of
four (4) years unless terminated by AIE with AIE giving written notice
to the other with at least thirty (30) days prior notice.
9.2. AIE shall have the right to terminate this Agreement for material
breach by the other party. Termination shall become effective sixty
(60) days after written notice to the Licensee has been sent. Such
notice shall specifically identify the nature of the breach and state
an intent to terminate in the event the breach is not cured within
said sixty (60) day's period. Written notice shall be signed by an
authorized representative and shall be sent in accordance with
Subsection 14.12, "Notices."
9.3. Upon termination or expiration of the Agreement, the Licensee will
return all Licensed Software to AIE.
9.4. Survival After Termination or Expiration
9.4.1. The provisions of Section 5 "Ownership and Licenses," Section 7
"Fees and Payments," Section 8 "Warranty and Indemnification,"
Section 9 "Term and Termination," Section 10 "Limitation of
Liability," Section 11 "Compliance with Laws," Section 12
"Confidential Information," Section 13 "Force Majeure," Section
14 "General," shall survive and continue beyond any expiration
or termination of this Agreement, except that licenses granted
to Licensee by AIE shall not survive if the agreement is
terminated for a material breach by Licensee.
10. Limitation of Liability
10.1. In no event will either party be liable to the other for any
incidental or special damages, lost profits, lost savings, or any
other consequential damages regardless of the form of action, even if
such party has been advised of the possibility of such damages,
resulting from the subject matter of this Agreement.
11. Compliance with Laws
11.1. Each party will comply with all applicable laws and regulations and
ordinances including, but not limited to, the regulations of the U.S.
Government relating to the export of commodities and technical data
insofar as they relate to the activities under this Agreement. Each
party hereby gives its written assurance that neither products nor
any technical data provided by the other party under this Agreement,
is intended to be shipped, directly or indirectly, to the prohibited
countries identified by the U.S. Government.
12. Confidential Information
12.1. All Confidential information exchanged by the parties shall be in
accordance with a Mutual Confidential Information Agreement.
13. Force Majeure
13.1. Neither party to this Agreement shall be liable for its failure to
perform any of its obligations hereunder during any period in which
such performance is delayed by circumstances beyond its reasonable
control, including but not limited to: fire, act of nature, or,
embargo, riot or the intervention of any government authority,
provided that the party suffering such delay immediately notifies
the other party of the delay.
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14. General
14.1. Neither party may assign any of its rights or obligations under this
Agreement to any third party without the express written consent of
the other; provided, however, either party shall be permitted to
assign this Agreement and the rights and licenses hereunder to any
assignee, transferee, or "spin off" of substantially all of the
assets of the organization that has responsibility for the Licensed
Software.
14.2. Except as otherwise expressly provided herein, the rights and
remedies of the parties provided in this Agreement shall not be
exclusive and are in addition to any other rights and remedies
provided at law or in equity.
14.3. Each party, including its servants, agents and employees, is deemed
to be an independent contractor and not an agent, joint venturer,
employee, or representative of the other, and neither party may
create any obligations or responsibilities on behalf of or in the
name of the other party.
14.4. If any provision of this Agreement is held illegal or unenforceable
by any court of competent jurisdiction, such provision shall be
modified to the minimal extent required to make it legal and
enforceable, consistent with the spirit and intent of the Agreement.
If such provision cannot be so modified, the provision shall be
deemed separable from the remaining provisions of this Agreement and
shall not affect or impair the validity or enforceability of the
remaining provisions of this Agreement.
14.5. This Agreement shall be governed by the laws of the State of Florida
applicable to agreements made and performed entirely within such
jurisdiction except that the conflict of laws provisions of the State
of Florida relating to determination of the applicable forum law to
be used shall not apply.
14.6. No rights or licenses are granted hereunder, expressly or by
implication or estoppel, to assign or grant, any rights or licenses
to any trademarks of either party, or to any inventions of either
party except as may be expressly provided herein.
14.7. The failure of either party to enforce, in any one or more instances,
any of the terms or conditions of the Agreement shall not be
construed as a waiver of the future performance of any such term or
condition.
14.8. Nothing contained in this Agreement shall prevent either party from
entering into agreements with third parties which are similar to this
Agreements, or from independently developing (either through third
parties or through the use of its own personnel), or from acquiring
from third parties, technologies or product or services which are
similar to and competitive with that of the other party.
14.9. Neither party shall disclose the existence or terms and conditions
of the Agreement to third parties except with prior written
agreement of the other party or in response to order of a court or
government agency.
14.10. Except for actions to recover payments under this Agreement, no
actions, regardless of form, arising out this Agreement, may be
brought by either party more than one (1) year after the cause of
action has arisen.
14.11. This Agreement expresses the entire agreement and understanding of
the parties with respect to the subject matter hereof and supersedes
all prior oral or written agreements, commitments and understandings
pertaining to the subject matter hereof. Any modifications of or
changes to this Agreement shall be in writing and signed by both
parties.
14.12. Notices
14.12.Notices under this Agreement shall be addressed to:
To AIE: Atlantic International Entertainment, Ltd.
000 Xxxx Xxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
ATTN: Sr. V.P. of Operations/General Manager
To Licensee: Intercapital Global Fund, Ltd.
One High Street
St. Xxxx, Antigua
ATTN:_______________________
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as
of the date first written above.
Atlantic International Entertainment, Ltd. Intercapital Global Fund, Ltd.
By: /s/ Xxxxx X. Xxxxx By: _________________________
-----------------------------
Signature Signature
Print Name Xxxxx X. Xxxxx Print Name __________________
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Atlantic International Entertainment, Ltd.
Software Support Maintenance Agreement
THIS AGREEMENT (hereinafter Agreement), made and entered into by and
between Atlantic International Entertainment, Ltd., a Florida based corporation,
having its principal place of business at 000 X. Xxxxxxxx Xxxx Xx., Xxx. 000,
Xxxx Xxxxx, XX 00000 (hereinafter referred to as Atlantic); and Intercapital
Global Fund, Ltd. having its principal place of business at: One High Street,
St. Xxxx, Antigua.
(Hereinafter referred to as Customer).
1. DEFINITIONS
For the purpose of this Agreement, the following terms shall have the
meanings ascribed to them.
EFFECTIVE DATE. The term Effective Date shall mean first date of signing of this
Agreement.
IMPROVEMENTS. Improvements to the Licensed Software are designated by a change
to the products release indicator (up to the next whole number release).
Improvements generally comprise maintenance modifications or minor enhancements
to functionality. Improvements exclude versions. Versions are comprised of
significant enhancements to functionality. If there is any issue whether a new
release is an Improvement or a version, it shall be within Atlantic" sole
discretion to much such determination.
LICENSED SOFTWARE. The term Licensed Software shall mean the computer program(s)
as detailed in Attachment A. The Licensed Software shall include Improvements as
defined above. Licensed Software will be distributed in Object Code only format.
OBJECT CODE. Object Code shall exist solely of code, substantially or entirely
in binary form which is directly executable by a computer after suitable
processing, but without the intervening steps of compilation or assembly. Object
Code shall not include any Source Code.
TECHNICAL INFORMATION. The term Technical Information shall mean the material
supplied by Atlantic in printed form or on magnetic media which supports the
Licensed Software and describes its installation, operation, or maintenance.
USER. The entity or persons, including but not limited to employees or
contractors who are licensed to run the Licensed Software.
AIE/Confidential
II. MAINTENANCE AND SUPPORT SERVICES
Standard Software Maintenance Services Shall include: Telephone maintenance
support of the Licensed Software. Said maintenance and support shall be
available Monday through Friday, 8:00AM - 6:00PM EST, exclusive of holidays at
(000) 000-0000. The Customer Support Center number after 6:00PM is 000-000-0000.
. Improvements that are made generally available on the current version.
. Technical Information updates to support Improvements.
. A thirty(30) day warranty period on the media.
. PC Anywhere is required for Support and Maintenance services.
If a Customer from time to time desires to obtain maintenance and support
services other than those specified above, or desires to obtain services to
accomplish modifications or enhancements to the Licensed Software not covered by
this Agreement, Customer may notify Atlantic of the services desired and, such
services shall be provided at the then current fees.
III. INTELLECTUAL PROPERTY
Any Improvements in the form of new or partial programs or documentation,
Technical Information and maintenance and support information, that may be
provided during the terms of this Agreement by Atlantic shall remain proprietary
to Atlantic and title thereto remains with Atlantic. All applicable rights to
patents, copyrights, trademarks, trade secrets and other intellectual or
proprietary rights and interests in the Licensed Software and Improvements
thereto by Atlantic are and shall remain with Atlantic. The Customer shall not
sell, transfer, publish, disclose, display, or otherwise make available the
Licensed Software or Improvements thereto or copies thereof to others, with
exception of the access to the Client. Customer agrees to secure and protect
each program, software product, and copies thereof in a manner consistent with
the maintenance of Atlantic's rights therein and to take appropriate action by
instruction or agreement with its employees who are permitted access to each
program or software product to satisfy its obligations hereunder. All copies of
the Licensed Software, or Improvements, including translations, compilations,
partial copies with modifications, and updated works by Atlantic are the
property of Atlantic.
IV. WARRANTIES
Atlantic warrants that the Licensed Software and Improvements thereto shall
operate in accordance with the provided Technical Information.
Atlantic warrants that sole title to the Atlantic copyright of Licensed
Software and Improvements resides in Atlantic, and that Atlantic has full power
and authority to enter into and carry out this Agreement.
Atlantic shall use its best efforts to promptly correct program errors when
such errors are reported to Atlantic. Atlantic will use its best efforts to
provide Improvements to
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Licensed Software if necessary to repair the error and eliminate the adverse
effects on the Customer of the non-conformity.
V. LIMITATIONS AND EXCLUSIONS OF WARRANTIES
1. Atlantic's warranties do not extend to operation of any hardware
configuration, nor in any operating environment (e.g., operating system)
2. Atlantic's warranties do not apply to:
a) Any copy of the Licensed Software that is re-engineered by any person other
than Atlantic; nor
b) Malfunctions resulting from use of the Licensed Software other than in
accordance with the most current Technical Information provided by Atlantic;
nor
c) Bugs or irregularities caused by defects, problems, or failures of hardware
or software not provided by Atlantic; nor
d) Bugs or irregularities caused by gross negligence of Customer or any other
person except Atlantic.
3.EXCEPT FOR ATLANTIC'S WARRANTY THAT THE LICENSED SOFTWARE WILL OPERATE AS
DEFINED IN THE TECHNICAL INFORMATION, ATLANTIC EXPRESSLY DISCLAIMS ANY WARRANTY
THAT THE FUNCTIONS PERFORMED BY THE LICENSED SOFTWARE WILL MEET ADDITIONAL
CUSTOMER REQUIREMENTS OR WILL OPERATE IN THE COMBINATIONS THAT MAY BE SELECTED
FOR USE BY CUSTOMER.
THE EXPRESS WARRANTIES AND EXPRESS REPRESENTATIONS SET FORTH IN THIS
AGREEMENT ARE IN LIEU OF, AND ATLANTIC DISCLAIMS, ANY AND ALL OTHER WARRANTIES,
CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH
RESPECT TO THE SOFTWARE SUPPORT MAINTENANCE AGREEMENT, INCLUDING ANY AND ALL
IMPLIED WARRANTIES.
V1. LIMITATION OF LIABILITY
1. ATLANTIC EXPRESSLY DISCLAIMS, AND CUSTOMER AGREES NOT TO ASSERT, ANY
LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING EITHER
DIRECTLY OR INDIRECTLY FROM OPERATION OF THE LICENSED SOFTWARE, INCLUDING BUT
NOT LIMITED TO LIABILITY FOR LOST OR CORRUPTED DATA OF CUSTOMER, IN NO EVENT
SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTIAL, CONSEQUENTIAL OR SPECIAL
DAMAGES ARISING FROM THIS AGREEMENT OR USE OF LICENSED SOFTWARE.
3
2. IN NO EVENT SHALL ATLANTIC BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF
DATA OR USE, LOST PROFITS OR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY,
ATLANTIC'S ENTIRE LIABILITY TO CUSTOMER FOR DAMAGES OR LOSSES SHALL NOT
EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THE AGREEMENT PRIOR TO SUCH DAMAGE
OR LOSS UP TO A MAXIMUM OF THE THEN CURRENT APPLICABLE YEARLY MAINTENANCE
FEES FOR THE SOFTWARE.
VII. TERM AND TERMINATION
1. Except as otherwise provided herein, this Agreement shall commence on the
Effective Date and continue for a period of 12 months. Automatic renewal is
assumed.
2. Upon termination of this Agreement:
a) Neither party shall have any further obligation to perform any duties
hereunder.
b) If this Agreement is terminated by Atlantic prior to the end of any year for
which an annual fee for maintenance and support has been paid by Customer,
Atlantic shall refund to Customer a pro rata portion of said annual fee
corresponding to the unexpired portion of that year.
VII. FEES
1. Payments shall be made according to the terms and conditions defined in
Attachment A.
2. The fees stated in Attachment A are only in effect for the initial term of
the Agreement. Standard Software Maintenance Services fees may vary from year
to year. Customer will be notified at least 60 days prior to the Effective
Date of any change in fees.
3. Unless otherwise specified, payment for Maintenance and Support Services
shall begin thirty (30) days after installation and continue to be due every
thirty (30) days from that date specified. If Customer fails to make payment
on the date such payment is due, written notice shall be sent to the
Customer. Customer shall have ten (10) days in which to make payment.
Following this grace period, Atlantic may discontinue services until Customer
has remedied the delinquency. Any past due payments shall be subject to late
fees equal to 1.5% per month.
4. Two ICE software systems and two webSports software systems operating out of
the same location shall constitute one service fee per product category.
4
IX. MISCELLANEOUS PROVISIONS
ASSIGNMENT. Neither this Agreement nor any interest herein may be assigned, in
whole or in part, by Customer without prior written consent of Atlantic, except
that, without securing such prior consent, Customer may assign this Agreement to
any acquirer of substantially all of the business of such party to which the
subject matter hereof relates, or to any affiliate or successor must assume in
writing all obligations herein.
CONSTRUCTION, APPLICABLE LAW, AND PLACE OF PERFORMANCE. This Agreement shall be
deemed to be made and entered into pursuant to the laws of the State of Florida.
NOTICE. All notices, statements, and reports required or permitted by this
Agreement shall be in writing and deemed to have been effectively given and
received: five (5) days after the date of dispatch by certified or registered
mail, postage prepaid; or other courier service; and in the case of telecopied
notice on the date that confirmation is sent by the receiving party to the
sending party addressed as follows:
For ATLANTIC: For CUSTOMER:
Atlantic International Entertainment, Ltd. Intercapital Global Fund, Ltd.
000 X. Xxxxxxxx Xxxx Xx. Ste. 000 Xxx Xxxx Xxxxxx
Xxxx Xxxxx, XX 00000 St. Xxxx, Antigua
Tel: 000.000.0000 Tel: 000-000-0000
Fax: 000.000.0000 Fax: 000-000-0000
Either party may change its address for the purpose of this paragraph by notice
pursuant to this paragraph.
FORCE MAJEURE. Neither party to this Agreement shall be liable for its failure
to perform any of its obligations hereunder during any period in which such
performance is delayed by circumstances beyond its reasonable control, including
but not limited to: fire, act of nature, or embargo, riot, or the intervention
of any government authority, provided that the party suffering such delay
immediately notifies the other party of the delay.
SEVERABILITY. The provisions of this Agreement are severable, and in the event
any provision is determined to be invalid or unenforceable, such invalidity or
unenforceability shall not in any way affect the validity or enforceability of
the remaining provisions hereof.
WAIVER. The waiver of a default hereunder by one party may be effected only by
written acknowledgement signed by the other party and shall constitute a waiver
of any
5
other default. The failure of either party to enforce any right or remedy for
any one default shall not be deemed a waiver of said right or remedy if the
default persists or if future defaults are committed, nor shall such failure in
any way affect the validity of this Agreement or any part hereof.
INDEPENDENT PARTIES. Nothing in this Agreement shall be deemed to constitute,
create, give effect to or otherwise recognize a partnership, joint venture or
formal business entity of any kind between the parties hereto; and the rights
and obligations of the parties shall be limited to those expressly set forth
herein.
ENTIRE UNDERSTANDING. This written instrument constitutes the entire
understanding and agreement between the parties with respect to the subject
matter hereof, integrates all prior understandings and agreements with respect
thereto, and shall not be varied, amended, or supplemented except in writing of
even or subsequent date, executed by the parties.
IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT as of 9th
day of April 1999.
Atlantic International Entertainment, Ltd. Intercapital Global Fund, Ltd.
Signature: /s/ Xxxxx X. Xxxxx Signature: /s/ Xxxxx X. Xxxxxxxx Xx. Esq.
------------------------- --------------------------------
Name: XXXXX X. XXXXX Name: Xxxxx X. xxxxxxxx Xx. Esq.
------------------------- --------------------------------
Title: Sr. VP OPERATIONS/GM Title: Attorney In Fact
------------------------- --------------------------------
Date: 4/9/99 Date: 9 April 1999
-------------------------- --------------------------------
6
ATTACHMENT A
FEES FOR SERVICES:
-------------------------------------------------------------------------------
Description Individual Price
-------------------------------------------------------------------------------
1 year - ICE Casino Standard Software $2,000.00/monthly or $20,000.00 annually
Maintenance Services
1 Year webSports(TM) Standard Software $1000.00 Monthly or $10,000.00 annually
Maintenance Service
-------------------------------------------------------------------------------
TOTAL: $
-----------------
NOTE: Yearly maintenance price is only applicable when paid in full prior to
applicable calendar year of service.
AIE Version 2 Gaming System Hardware Requirements
PRODUCT: AIE Gaming System
VERSION: AIE Version 2 Gaming System
SQL Server Configuration
------------------------
. Pentium-II 450 MHZ PCI Bus with dual processors [OR LARGER]
. 512 MB System Memory (RAM)
. 1 PCI SCSI III Adapter (for tape drive if not included)
. Raid 5 PCI Controller
. Three 9.1 GB SCSI Hard Disk Drives, configured. for RAID 5 Controller.
. 4mm DAT SCSI Tape Backup
. 8x CD-Rom (or higher)
. SVGA Monitor
. Mouse
. Keyboard
. Two(2) 10/100 Mbs Ethernet Network Cards
. Uninterruptible Power Supply (minimum 600 VA)
. Windows NT Server 4.0 with Service Pack 4 (10 user)
. Microsoft's SQL Server Version 6.5, with server pack 4
. Microsoft Internet License for SQL 6.5
. Cheyenne ARCSERVE Enterprise Edition Tape Backup Software
. ArcServe open files agent
. ArcServe SQL Server agent
IIS Server Configurations
-------------------------
. Pentium-II 450 MHZ PCI Bus with dual processors [OR LARGER]
. 512 MB System Memory (RAM)
. Raid 5 PCI Controller
. Three 9.1 GB SCSI Hard Disk Drives, configured for RAID 5 Controller.
. 8x CD-Rom (or higher)
. SVGA Monitor
. Mouse
. Keyboard
. Two(2) 10/100 Mbs Ethernet Network Cards
. Uninterruptible Power Supply (minimum 600 VA)
. Windows NT Server 4.0 with Service Pack 4 (10 user)
. Microsoft's Internet Information Server (version 4)
. PC Anywhere (version 8)
1
System Administrator Workstation Configuration
----------------------------------------------
. Pentium 266 MHZ (OR LARGER)
. 128 MB RAM (OR HIGHER)
. 4G Hard Disk
. SVGA Monitor
. Mouse
. Keyboard
. One (1) 10/100 Mbs Ethernet Network Card
. Uninteruptible Power Supply (minimum 250 VA)
. Windows NT workstation 4.0 with Service Pack 3
. Standard Windows NT Browser (Microsoft Internet Explorer 4.x, Netscape
Communicator 4.xx)
. Access to Internet via any Internet Service Provider
Additional Equipment/Supplies
-----------------------------
Equipment
. Two(2) 00/000 Xxxxxxxx Xxxx - 0 Xxxx (xx xxxxxx)
. Cisco 2514 Router (minimum) (generally supplied by ISP) or 2516
. Black & White Printer (optional)
Supplies
. Category 5UTP cabling with RJ45 Connectors
. 4MM DAT Tapes
. Printer Paper (optional)
2
Atlantic International Entertainment, Ltd.
SALES AGREEMENT
This License Agreement ("Agreement") is made this 23/rd/ day of June, 1999,
between Atlantic International Entertainment, Ltd., a Florida corporation, whose
registered office address is 200 E, Palmetto Park Road, Suite 200, Boca Raton,
Xxxxxxx 00000, XXX ("AIE"), and Intercapital Global Fund, Ltd. ("Licensee"),
whose registered office address is: One High Street, St. Xxxx, Antigua.
Licensee and AIE agree as follows:
1. Definitions
1.1. "Code" means computer programming object code, which is substantially
or entirely in binary form, which is directly executable by a computer
without the intervening steps of compilation or assembly.
1.2. "Licensed Software" means AIE Lotto Magic (TM) Version 1.0 software
product and related online documentation.
1.3. "Upgrade" means maintenance modifications and enhancements that modify
the Licensed Software.
2. Responsibilities of Licensee
2.1. Licensee agrees to pay for the Licensed Software at the prices set
forth in Section 7.
2.2. Licensee agrees to participate in the AIE training program for support
and use of Licensed Software.
2.3. Licensee shall provide a valid gaming license to AIE prior to
installation of Licensed Software.
2.4. Licensee shall provide the completed installation checklist to AIE
prior to installation.
2.5. Licensee shall ensure the proper preparation of the installation site.
2.6. Licensee shall purchase hardware per AIE's hardware requirement
specifications.
3. Responsibilities of AIE
3.1. AIE shall provide one copy of the Licensed Software.
3.2. AIE shall provide copies of Upgrades to the Licensed Software.
3.3. AIE shall provide on site installation of Licensed Software at no
additional fee.
3.4. AIE shall provide three days training to Licensee in Boca Raton or at
the Licensee site during installation at no additional fee.
3.5. AIE shall provide one customized lobby graphics screen at no
additional fee.
4. Public Relations
4.1. AIE is granted the right to make a public announcement referencing the
Licensee.
4.2. Licensee agrees not to change or remove any AIE xxxx on Licensed
Software.
5. Ownership and Licenses
5.1. Intellectual Property
5.1.1. AIE retains sole and exclusive ownership of all worldwide
copyrights, patents, trade secrets, know-how and other
intellectual property right in and to the Licensed Software and
Upgrades as they exist now or in the future.
5.1.2. Licensee acknowledges that AIE owns all right, title and
interest in the AIE name and logotype and xxxx and is the owner
of certain other AIE registered or common law trademarks and
tradenames. Licensee acknowledges that Licensee will not use or
acquire any interest in any of these trademarks or trade names
by virtue of this Agreement, or the activities of either of us
under it.
5.1.3. AIE acknowledges that Licensee owns all right title and
interest in the Licensee name and logotype. AIE acknowledges
that it will not acquire any interest in the Licensee name or
xxxx by virtue of this Agreement or the activities of either of
us under it.
6. AIE grants to Licensee
6.1. AIE grants to Licensee, and its subsidiaries, a nonexclusive
license under copyrights, know-how and trade secrets to use,
display, execute in object Code only one copy of the Licensed
Software. The "one" copy of software may not be shared or used
concurrently by multiple, or differently named or identified
websites.
7. Fees and Payments
7.1. Licensee shall purchase the Licensed Software for a ninety (90)
day test period in the amount of $20,000.00 paid upon signing of
----------
this Agreement AND five percent (5%) of Net Win as a royalty,
paid monthly. If Licensee retains the AIE Lotto Magic (TM)
Version 1.0 system beyond ninety (90) days, an additional
$00,000.00 shall be due AND five percent (5%) of Net Win as a
----------
royalty, paid quarterly after the initial ninety (90) day period.
7.2. Licensee shall send all payments, referencing this Agreement to:
Atlantic International Entertainment, Ltd. 000 Xxxx Xxxxxxxx Xxxx
Xxxx., Xxxxx 000 Xxxx Xxxxx, XX. 00000.
7.3. The fees payable by Licensee are exclusive of taxes. Licensee shall
pay or reimburse AIE for all taxes, including sales or use taxes,
however designated, imposed as a result of the existence or operation
of this Agreement, except income and franchise tax imposed on AIE by
any government entity. If applicable, Licensee may, in lieu of paying
sales and/or use taxes, furnish to AIE a tax exemption certificate,
which is acceptable to the appropriate taxing authority.
7.4. In the event payment is not made when due, all amounts over due shall
bear interest at the rate of 1.5% per month or, if lower: ALE retains
the right to terminate the lincensed software until such time as all
payments are paid in full.
8. Warranty and Indemnification
8.1. Warranty Disclaimer
8.1.1. The Licensed Software and any Upgrades are provided "as is"
with no representations or warranties of any kind, whether
express or implied, including without limitation, implied
warranties of MERCHANT ABILITY and/or fitness for a particular
purpose. AIE does warrant that the Licensed Software, Upgrades
and/or use of either or both of them will not infringe any
intellectual property rights of third parties.
8.1.2. AIE does not warrant any hardware or non-AIE software or
operating system software,
9. Term and Termination
9.1. This Agreement shall be effective as of the last date on the
signature page hereof ("Effective Date") and shall continue for a
minimum of four (4) years unless terminated by AIE with AIE giving
written notice to the other with at least thirty (30) days prior
notice.
9.2. AIE shall have the right to terminate this Agreement for material
breach by the other party. Termination shall become effective sixty
(60) days after written notice to the Licensee has been sent. Such
notice shall specifically identify the nature of the breach and state
an intent to terminate in the event the breach is not cured within
said sixty-(60) day's period. Written notice shall be signed by an
authorized representative and shall be sent in accordance with
Subsection 14.12. "Notices."
9.3. Upon termination or expiration of the Agreement, the Licensee will
return all Licensed Software to AIE.
9.4. Survival After Termination or Expiration
9.4.1. The provisions of Section 5 "Ownership and Licenses,"
Section 7 "Fees and Payments," Section 8 "Warranty and
Indemnification." Section 9 "Term and Termination," Section 10
"Limitation of Liability," Section 11 "Compliance with Laws,"
Section 12 "Confidential Information," Section 13 "Force
Majeure," Section 14 "General," shall survive and continue
beyond any expiration or termination of this Agreement, except
that licenses granted to Licensee by AIE shall not survive if
the agreement is terminated for a material breach by Licensee.
10. Limitation of Liability
10.1. In no event will either party be liable to the other for any
incidental or special damages, lost profits, lost savings, or any
other consequential damages regardless of the form of action, even if
such party has been advised of the possibility of such damages,
resulting from the subject matter of this Agreement.
11. Compliance with Laws
11.1. Each party will comply with all applicable laws and regulations and
ordinances including, but not limited to, the regulations of the U.S.
Government relating to the export of commodities and technical data
insofar as they relate to the activities under this Agreement. Each
party hereby gives its written assurance that neither products nor
any technical data provided by the other party under this Agreement,
is intended to be shipped, directly or indirectly, to the prohibited
countries identified by the U.S. Government.
12. Confidential Information
12.1. All Confidential information exchanged by the parties shall be in
accordance with a Mutual Confidential Information Agreement.
13. Force Majeure
13.1. Neither party to this Agreement shall be liable for its failure to
perform any of its obligations hereunder during any period in which
such performance is delayed by circumstances beyond its reasonable
control, including but not limited to: fire, act of nature, or,
embargo, riot or the intervention of any government authority,
provided that the party suffering such delay immediately notifies the
other party of the delay.
14. General
14.1. Neither party may assign any of its rights or obligations under this
Agreement to any third party without the express written consent of
the other; provided, however, either party shall be permitted to
assign this Agreement and the rights and licenses hereunder to any
assignee, transferee, or "spin off" of substantially all of the
assets of the organization that has responsibility for the Licensed
Software.
14.2. Except as otherwise expressly provided herein, the rights and
remedies of the parties provided in this Agreement shall not be
exclusive and are in addition to any other rights and remedies
provided at law or in equity.
2
14.3. Each party, including its servants, agents and employees, is deemed
to be an independent contractor and not an agent, joint venturer,
employee, or representative of the other, and neither party may create
any obligations or responsibilities on behalf of or in the name of
the other party.
14.4. If any provision of this Agreement is held illegal or unenforceable by
any court of competent jurisdiction, such provision shall be modified
to the minimal extent required to make it legal and enforceable,
consistent with the spirit and intent of the Agreement. If such
provision cannot be so modified, the provision shall to deemed
separable from the remaining provisions of this Agreement and shall
not affect or impair the validity or enforceability of the remaining
provisions of this Agreement.
14.5. This Agreement shall be governed by the laws of the State of Florida
applicable to agreements made and performed entirely within such
jurisdiction except that the conflict of laws provisions of the State
of Florida relating to determination of the applicable forum law to be
used shall not apply.
14.6. No rights or licenses are granted hereunder, expressly or by
implication or estoppel, to assign or grant, any rights or licenses to
any trademarks of either party, or to any inventions of either party
except as may be expressly provided herein.
14.7. The failure of either party to enforce, in any one or more instances,
any of the terms or conditions of the Agreements shall not be
construed as a waiver of the future performance of any such terms or
condition.
14.8. Nothing contained in this Agreement shall prevent either party from
entering into agreements with third parties which are similar to this
Agreement, or from independently developing (either through third
parties or through the use of its own personnel), or from acquiring
from third parties, technologies or product or services which are
similar to and competitive with that of the other party.
14.9. Neither party shall disclose the existence or terms and conditions of
the Agreement to third parties except with prior written agreement of
the other party or in response to order of a court or government
agency.
14.10.Except for actions to recover payments under this Agreement, no
actions, regardless of form, arising out this Agreement, may be
brought by either party more than one (1) year after the cause of
action has arisen.
14.11.This Agreement expresses the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersedes all
prior oral or written agreements, commitments and understandings
pertaining to the subject matter hereof. Any modifications of or
changes to this Agreement shall be in writing and signed by both
parties.
14.12.Notices.
14.12.1 Notices under this Agreement shall be addressed to:
To AIE: Atlantic International Entertainment, Ltd.
000 Xxxx Xxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
ATTN: Sr. V.P. of Operations/General Manager
To: Intercapital Global Fund, Ltd
One High Street
St. Xxxx, Antigua
ATTN: Xxxx Xxxxxxx
Or
0000 Xxx Xxxxxxx
Xxxxx #000
Xxxxxxxx Xxxxxx, Xxxxxx H3G 2A9
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as
of the date first written above.
Atlantic International Entertainment, Ltd. Intercapital Global Fund, Ltd
/s/ Xxxxx X Xxxxx /s/ Xxxx Xxxxxxx
By:---------------------------------------- By:--------------------------
Signature Signature
XXXXX X. XXXXX XXXX XXXXXXX
Print Name:--------------------------------- Print Name:------------------
3
Atlantic International Entertainment, Ltd.
SALES AGREEMENT
This License Agreement ("Agreement") is made this 23/rd/ day of June, 1999,
between Atlantic International Entertainment, Ltd., a Florida corporation, whose
registered office address is 200 E. Palmetto Park Road, Suite 200, Boca Raton,
Xxxxxxx 00000, XXX ("AIE"), and Intercapital Global Fund, Ltd. ("Licensee"),
whose registered office address is: One High Street, St. Xxxx, Antigua.
Licensee and AIE agree as follows:
1. Definitions
1.1. "Code" means computer programming object code, which is substantially
or entirely in binary form, which is directly executable by a computer
without the intervening steps of compilation or assembly.
1.2. "Licensed Software" means AIE Bingo Blast(TM) Version 1.0 software
product and related online documentation.
1.3. "Upgrade" means maintenance modifications and enhancements that modify
the Licensed Software.
2. Responsibilities of Licensee
2.1. Licensee agrees to pay for the Licensed Software at the prices set
forth in Section 7.
2.2. Licensee agrees to participate in the AIE training program for support
and use of Licensed Software.
2.3. Licensee shall provide a valid gaming license to AIE prior to
installation of Licensed Software.
2.4. Licensee shall provide the completed installation checklist to AIE
prior to installation.
2.5. Licensee shall ensure the proper preparation of the installation site.
2.6. Licensee shall purchase hardware per AIE's hardware requirement
specifications.
3. Responsibilities of AIE
3.1. AIE shall provide one copy of the Licensed Software.
3.2. AIE shall provide copies of Upgrades to the Licensed Software.
3.3. AIE shall provide on site installation of Licensed Software at no
additional fee.
3.4. AIE shall provide three days training to Licensee in Boca Raton or at
the Licensee site during installation at no additional fee.
3.5. AIE shall provide one customized lobby graphics screen at no
additional fee.
4. Public Relations
4.1. AIE is granted the right to make a public announcement referencing the
Licensee.
4.2. Licensee agrees not to change or remove any AIE xxxx or Licensed
Software.
5. Ownership and Licenses
5.1. Intellectual Property
5.1.1. AIE retains sole and exclusive ownership of all worldwide
copyrights, patents, trade secrets, know-how and other
intellectual property right in and to the Licensed Software and
Upgrades as they exist now or in the future.
5.1.2. Licensee acknowledges that AIE owns all right, title and
interest in the AIE name and logotype and xxxx and is the owner
of certain other AIE registered or common law trademarks and
tradenames. Licensee acknowledges that Licensee will not use or
acquire any interest in any of these trademarks or trade names
by virtue of this Agreement, or the activities of either of us
under it.
5.1.3. AIE acknowledges that Licensee owns all right title and interest
in the Licensee name and logotype. AIE acknowledges that it will
not acquire any interest in the Licensee name or xxxx by virtue
of this Agreement or the activities of either of us under it.
6. AIE grants to Licensee
6.1. AIE grants to Licensee, and its subsidiaries, a nonexclusive license
under copyrights, know-how and trade secrets to use, display, execute
in object Code only one copy of the Licensed Software. The "one" copy
of software may not be shared or used concurrently by multiple, or
differently named or identified websites.
7. Fees and Payments
7.1. Licensee shall purchase four (4) Licenses of the Licensed Software for
the amount of $110,000.00 to be paid upon signing of this Agreement
-----------
AND Seven (7%) of Net Win as a royalty, paid monthly.
7.2. Licensee shall send all payments, referencing this Agreement to:
Atlantic International Entertainment, Ltd. 000 Xxxx Xxxxxxxx Xxxx
Xxxx., Xxxxx 000 Xxxx Xxxxx, Xx. 00000.
7.3. The fees payable by Licensee are exclusive of taxes. Licensee shall
pay or reimburse AIE for all taxes, including sales or use taxes,
however designated, imposed as a result of the existence or operation
of this Agreement, except income and
1
franchise tax imposed on AIE by any government entity. If applicable,
Licensee may, in lieu of paying sales and/or use taxes, furnish to
AIE a tax exemption certificate, which is acceptable to the
appropriate taxing authority.
7.4. In the event payment is not made when due, all amounts over due shall
bear interest at the rate of 1.5% per month or, if lower; AIE retains
the right to terminate the licensed software until such time as all
payments are paid in full.
8. Warranty and Indemnification
8.1. Warranty Disclaimer
8.2. The Licensed Software and any Upgrades are provided "as is" with no
representations or warranties of any kind, whether express or implied,
including without limitation, implied warranties of MERCHANTABILITY
and/or fitness for a particular purpose. AIE does warrant that the
Licensed Software, Upgrades and/or use of either or both of them will
not infringe any intellectual property rights of third parties.
8.3. AIE does not warrant any hardware or non-AIE software or operating
system software.
9. Term and Termination
9.1. This Agreement shall be effective as of the last date on the signature
page hereof ("Effective Date") and shall continue for a minimum of four
(4) years unless terminated by AIE with AIE giving written notice to the
other with at least thirty (30) days prior notice.
9.2. AIE shall have the right to terminate this Agreement for material breach
by the other party. Termination shall become effective sixty (60) days
after written notice to the Licensee has been sent. Such notice shall
specifically identify the nature of the breach and state an intent to
terminate in the event the breach is not cured within said sixty-(60)
day's period. Written notice shall be signed by authorized
representative and shall be sent in accordance with Subsection 14.12.
"Notices."
9.3. Upon termination or expiration of the Agreement, the Licensee will
return all Licensed Software to AIE.
9.4. Survival After Termination or Expiration.
9.4.1. The provisions of Section 5 "Ownership and Licenses," Section 7
"Fees and Payments," Section 8 "Warranty and Indemnification,"
Section 9 "Term and Termination," Section 10 "Limitation of
Liability," Section 11 "Compliance with Laws," Section 12
"Confidential Information," Section 13 "Force Majeure," Section
14 "General," shall survive and continue beyond any expiration
or termination of this Agreement, except that licenses granted
to Licensee by AIE shall not survive if the agreement is
terminated for a material breach by Licensee.
10. Limitation of Liability
00.0.Xx no event will either party be liable to the other for any incidental
or special damages, lost profits, lost savings, or any other
consequential damages regardless of the form of action, even if such
party has been advised of the possibility of such damages, resulting
from the subject matter of this Agreement.
11. Compliance with Laws
11.1.Each party will comply with all applicable laws and regulations and
ordinances including, but not limited to, the regulations of the U.S.
Government relating to the export of commodities and technical data
insofar as they relate to the activities under this Agreement. Each
party hereby gives its written assurance that neither products nor any
technical data provided by the other party under this Agreement, is
intended to be shipped, directly or indirectly, to the prohibited
countries identified by the U.S. Government.
12. Confidential Information
12.1.All Confidential information exchanged by the parties shall be in
accordance with a Mutual Confidential Information Agreement.
13. Force Majeure
13.1.Neither party to this Agreement shall be liable for its failure to
perform any of its obligations hereunder during any period in which
such performance is delayed by circumstances beyond its reasonable
control, including but not limited to: fire, act of nature, or,
embargo, riot or the intervention of any government authority, provided
that the party suffering such delay immediately notifies the other
party of the delay.
14. General
14.1.Neither party may assign any of its rights or obligations under this
Agreement to any third party without the express written consent of
the other: provided, however, either party shall be permitted to
assign this Agreement and the rights and licenses hereunder to any
assignee, transferee, or "spin off" of substantially all of the assets
of the organization that has responsibility for the Licensed Software.
14.2.Except as otherwise expressly provided herein, the rights and remedies
of the parties provided in this Agreement shall not be exclusive and
are in addition to any other rights and remedies provided at law or in
equity.
14.3.Each party, including its servants, agents and employees, is deemed to
be an independent contractor and not an agent, joint venturer,
employee, or representative of the other, and neither party may create
any obligations or responsibilities on behalf of or in the name of the
other party.
2
14.4. If any provision of this Agreement is held illegal or unenforceable by
any court of competent jurisdiction, such provision shall be modified
to the minimal extent required to make it legal and enforceable,
consistent with the spirit and intent of the Agreement. If such
provision cannot be so modified, the provision shall be deemed
separable from the remaining provisions of this Agreement and shall
not affect or impair the validity or enforceability of the remaining
provisions of this Agreement.
14.5. This Agreement shall be governed by the laws of the State of Florida
applicable to agreements made and performed entirely within such
jurisdiction except that the conflict of laws provisions of the State
of Florida relating to determination of the applicable forum law to be
used shall not apply.
14.6. No rights or licenses are granted hereunder, expressly or by
implication or estoppel, to assign or grant any rights or licenses to
any trademarks of either party, or to any inventions of either party
except as may be expressly provided herein.
14.7. The failure of either party to enforce, in any one or more instances,
any of the terms or conditions of the Agreement shall not be construed
as a waiver of the future performance of any such term or condition.
14.8. Nothing contained in this Agreement shall prevent either party from
entering into agreements with third parties which are similar to this
Agreement, or from independently developing (either through third
parties or through the use of its own personnel), or from acquiring
from third parties, technologies or product or services which are
similar to and competitive with that of the other party.
14.9. Neither party shall disclose the existence or terms and conditions of
the Agreement to third parties except with prior written agreement of
the other party or in response to order of a court or government
agency.
14.10. Except for actions to recover payments under this Agreement, no
actions, regardless of form, arising out this Agreement, may be
brought by either party more than one (1) year after the cause of
action has arisen.
14.11. This Agreement expresses the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersedes all
prior oral or written agreements, commitments and understandings
pertaining to the subject matter hereof. Any modifications of or
changes to this Agreement shall be in writing and signed by both
parties.
14.12. Notices
14.12.1 Notices under this Agreement shall be addressed to:
To AIE: Atlantic International Entertainment Ltd.
000 Xxxx Xxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
ATTN: Sr. V.P. of Operations/General Manager
To: Intercapital Global Fund, Ltd.
One High Street
St. Xxxx, Antigua
ATTN: Xxxx Xxxxxxx
Or
0000 Xxx Xxxxxxxx
Xxxxx #000
Xxxxxxxx Xxxxxx, Xxxxxx H3G 2A9
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date first written above.
Atlantic International Entertainment, Ltd. Intercapital Global Fund, Ltd.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxx Xxxxxxx
--------------------------- ---------------------------
Signature Signature
Print Name: Xxxxx X. Xxxxx Print Name: Xxxx Xxxxxxx
------------------- -------------------
3
Atlantic International Entertainment, Ltd.
Software Support Maintenance Agreement
THIS AGREEMENT (hereinafter Agreement), made and entered into by and between
Atlantic International Entertainment, Ltd., a Florida based corporation, having
its principal place of business at 000 X. Xxxxxxxx Xxxx Xx., Xxx, 000, Xxxx
Xxxxx, XX 00000 (hereinafter referred to as Atlantic): and Intercapital Global
Fund, Ltd. having its principal place of business at: One High Street, St. Xxxx,
Antigua (hereinafter referred to as Customer).
1. DEFINITIONS
For the purpose of this Agreement, the following terms shall have the meanings
ascribed to them.
EFFECTIVE DATE. The term Effective Date shall mean first date of signing of this
Agreement.
IMPROVEMENTS. Improvements to the Licensed Software are designated by a change
to the products release indicator ( up to the next whole number release).
Improvements generally comprise maintenance modifications or minor enhancements
to functionality. Improvements exclude versions. Versions are comprised of
significant enhancements to functionality. If there is any issue whether a new
release is an Improvement or a version, it shall be within Atlantic" sole
discretion to much such determination.
LICENSED SOFTWARE. The term Licensed Software shall mean the computer program(s)
as detailed in Attachment A. The Licensed Software shall include Improvements as
defined above. Licensed Software will be distributed in Object Code only format.
OBJECT CODE. Object Code shall exist solely of code, substantially or entirely
in binary form which is directly executable by a computer after suitable
processing, but without the intervening steps of compilation or assembly. Object
Code shall not include any Source Code.
TECHNICAL INFORMATION. The term Technical Information shall mean the material
supplied by Atlantic in printed form or on magnetic media which supports the
Licensed Software and describes its installation, operation, or maintenance.
USERS. The entity or persons, including but not limited to employees or
contractors who are licensed to run the Licensed Software.
1
II. MAINTENANCE AND SUPPORT SERVICES
Standard Software Maintenance Services Shall include: Telephone maintenance
support of the Licensed Software. Said maintenance and support shall be
available Monday through Friday, 8:00AM - 6:00PM EST, exclusive of holidays at
(000) 000-0000. The Customer Support Center number after 6:00PM is 000-000-0000.
. Improvements that are made generally available on the current version.
. Technical Information updates to support Improvements.
. A thirty (30) day warranty period on the media.
. PC Anywhere is required for Support and Maintenance services.
. No other software can reside on the IIS or database servers at anytime.
If a Customer from time to time desires to obtain maintenance and support
services other than those specified above, or desires to obtain services to
accomplish modifications or enhancements to the Licensed Software not covered by
this Agreement, Customer may notify Atlantic of the services desired and, such
services shall be provided at the then current fees.
III. INTELLECTUAL PROPERTY
Any Improvements in the form of new or partial programs or documentation,
Technical Information and maintenance and support information, that may be
provided during the terms of this Agreement by Atlantic shall remain proprietary
to Atlantic and title thereto remains with Atlantic. All applicable rights to
patents, copyrights, trademarks, trade secrets and other intellectual or
proprietary rights and interests in the Licensed Software and Improvements
thereto by Atlantic are and shall remain with Atlantic. The Customer shall not
sell, transfer, publish, disclose, display, or otherwise make available the
Licensed Software or Improvements thereto or copies thereof to others, with
exception of the access to the Client. Customer agrees to secure and protect
each program, software product, and copies thereof in a manner consistent with
the maintenance of Atlantic's rights therein and to take appropriate action by
instruction or agreement with its employees who are permitted access to each
program or software product to satisfy its obligations hereunder. All copies of
the Licensed Software, or Improvements, including translations, compilations,
partial copies with modifications, and updated works by Atlantic are the
property of Atlantic.
IV. WARRANTIES
Atlantic warrants that the Licensed Software and Improvements thereto shall
operate in accordance with the provided Technical Information.
2
Atlantic warrants that sole title to the Atlantic copyright of Licensed Software
and Improvements resides in Atlantic, and that Atlantic has full power and
authority to enter into and carry out this Agreement.
Atlantic shall use its best efforts to promptly correct program errors when such
errors are reported to Atlantic. Atlantic will use its best efforts to provide
Improvements to Licensed Software if necessary to repair the error and eliminate
the adverse effects on the Customer of the non-conformity.
V. LIMITATIONS AND EXCLUSIONS OF WARRANTIES
1. Atlantic's warranties do not extend to operation of any hardware
configuration, nor in any operating environment (e.g., operating system)
2. Atlantic's warranties do not apply to:
a) Any copy of the Licensed Software that is re-engineered by any person other
than Atlantic; nor
b) Malfunctions resulting from use of the Licensed Software other than in
accordance with the most current Technical Information provided by Atlantic;
nor
c) Bugs or irregularities caused by defects, problems, or failures of hardware
or software not provided by Atlantic; nor
d) Bugs or irregularities caused by gross negligence of Customer or any other
person except Atlantic.
3. EXCEPT FOR ATLANTIC'S WARRANTY THAT THE LICENSED SOFTWARE WILL OPERATE AS
DEFINED IN THE TECHNICAL INFORMATION, ATLANTIC EXPRESSLY DISCLAIMS ANY WARRANTY
THAT THE FUNCTIONS PERFORMED BY THE LICENSED SOFTWARE WILL MEET ADDITIONAL
CUSTOMER REQUIREMENTS OR WILL OPERATE IN THE COMBINATIONS THAT MAY BE SELECTED
FOR USE BY CUSTOMER.
THE EXPRESS WARRANTIES AND EXPRESS REPRESENTATIONS SET FORTH IN THIS AGREEMENT
ARE IN LIEU OF, AND ATLANTIC DISCLAIMS, ANY AND ALL OTHER WARRANTIES,
CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH
RESPECT TO THE SOFTWARE SUPPORT MAINTENANCE AGREEMENT, INCLUDING ANY AND ALL
IMPLIED WARRANTIES.
VI. LIMITATION OF LIABILITY
1. ATLANTIC EXPRESSLY DISCLAIMS, AND CUSTOMER AGREES NOT TO ASSERT, ANY
LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING EITHER
DIRECTLY OR INDIRECTLY FROM OPERATION OF THE LICENSED SOFTWARE, INCLUDING
BUT NOT LIMITED TO LIABILITY FOR LOST OR CORRUPTED DATA OF CUSTOMER.
3
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL
OR SPECIAL DAMAGES ARISING FROM THIS AGREEMENT OR USE OF LICENSED SOFTWARE.
2. IN NO EVENT SHALL ATLANTIC BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF
DATA OR USE, LOST PROFITS OR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY,
ATLANTIC'S ENTIRE LIABILITY TO CUSTOMER FOR DAMAGES OR LOSSES SHALL NOT
EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THE AGREEMENT PRIOR TO SUCH DAMAGE
OR LOSS UP TO A MAXIMUM OF THE THEN CURRENT APPLICABLE YEARLY MAINTENANCE
FEES FOR THE SOFTWARE.
VII. TERM AND TERMINATION
1. Except as otherwise provided herein, this Agreement shall commence on the
Effective Date and continue for a period of 12 months. Automatic renewal is
assumed.
2. Upon termination of this Agreement:
a) Neither party shall have any further obligation to perform any duties
hereunder.
b) If this Agreement is terminated by Atlantic prior to the end of any year for
which an annual fee for maintenance and support has been paid by Customer,
Atlantic shall refund to Customer a pro rata portion of said annual fee
corresponding to the unexpired portion of that year.
VII. FEES
1. Payments shall be made according to the terms and conditions defined in
Attachment A.
2. The fees stated in Attachment A are only in effect for the initial term of
the Agreement. Standard Software Maintenance Services fees may vary from
year to year. Customer will be notified at least 60 days prior to the
Effective Date of any change in fees.
3. Unless otherwise specified, payment for Maintenance and Support Services
shall begin thirty (30) days after installation and continue to be due every
thirty (30) days from that date specified. If Customer fails to make payment
on the date such payment is due, written notice shall be sent to the
Customer. Customer shall have ten (10) days in which to make payment.
Following this grace period, Atlantic may discontinue services until
Customer has remedied the delinquency. Any past due payments shall be
subject to late fees equal to 1.5% per month.
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IX. MISCELLANEOUS PROVISIONS
ASSIGNMENT. Neither this Agreement nor any interest herein may be assigned, in
whole or in part, by Customer without prior written consent of Atlantic, except
that, without securing such prior consent, Customer may assign this Agreement to
any acquirer of substantially all of the business of such party to which the
subject matter hereof relates, or to any affiliate or successor must assume in
writing all obligations herein.
ESCROW. AIE will escrow source code at the Customer's expense for service only,
not to enhance or develop the licensed product in the event AIE should go out of
business.
CONSTRUCTION, APPLICABLE LAW, AND PLACE OF PERFORMANCE. This Agreement shall be
deemed to be made and entered into pursuant to the laws of the State of Florida.
NOTICE. All notices, statements, and reports required or permitted by this
Agreement shall be in writing and deemed to have been effectively given and
received: five (5) days after the date of dispatch by certified or registered
mail, postage prepaid; or other courier service; and in the case of telecopied
notice on the date that confirmation is sent by the receiving party to the
sending party addressed as follows:
For ATLANTIC: For CUSTOMER:
Atlantic International Entertainment, Ltd. Intercapital Global Fund, Ltd.
000 X. Xxxxxxxx Xxxx Xx. Ste. 000 Xxx Xxxx Xxxxxx
Xxxx Xxxxx, XX 00000 St. Xxxx, Antigua
Or
0000 Xxx Xxxxxxx
Xxxxx #000
Xxxxxxxx Xxxxxx, Xxxxxx X0X 0X0
Tel: 000.000.0000 Tel: 0000-000-0000
Fax: 000.000.0000 Fax: 0000-000-0000
Either party may change its address for the purpose of this paragraph by notice
pursuant to this paragraph.
FORCE MAJEURE. Neither party to this Agreement shall be liable for its failure
to perform any of its obligations hereunder during any period in which such
performance is delayed by circumstances beyond its reasonable control, including
but not limited to: fire,
5
act of nature, or embargo, riot, or the intervention of any government
authority, provided that the party suffering such delay immediately notifies the
other party of the delay.
SEVERABILITY. The provisions of this Agreement are severable, and in the event
any provision is determined to be invalid or unenforceable, such invalidity or
unenforceability shall not in any way affect the validity or enforceability of
the remaining provisions hereof.
WAIVER. The waiver of a default hereunder by one party may be effected only by
written acknowledgement signed by the other party and shall constitute a waiver
of any other default. The failure of either party to enforce any right or remedy
INDEPENDENT PARTIES. Nothing in this Agreement shall be deemed to constitute,
create, give effect to or otherwise recognize a partnership, joint venture or
formal business entity of any kind between the parties hereto; and the rights
and obligations of the parties shall be limited to those expressly set forth
herein.
ENTIRE UNDERSTANDING. This written instrument constitutes the entire
understanding and agreement between the parties with respect to the subject
matter hereof, integrates all prior understandings and agreements with respect
thereto, and shall not be varied, amended, or supplemented except in writing of
even or subsequent date, executed by the parties.
IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT as of
29 day of June 1999
Atlantic International Entertainment, Ltd. Intercapital Global Fund, Ltd.
Signature: /s/ Xxxxx X. Xxxxx Signature: /s/ Xxxx Xxxxxxx
------------------- --------------------
Name: Xxxxx X. Xxxxx Name: Xxxx Xxxxxxx
------------------- --------------------
Title: Sr. VP Operations/GM Title: Vice President
------------------- --------------------
Date: June 28, 1999 Date: 28 June, 99
------------------- --------------------
6
27,500 X 4 = 110,000 BINGO BLAST
20,000 X 1 = 20,000 LOTTO MAGIC
ONE FREE ALL BINGOS $1,000 MONTHLY - TOTAL $12,000 ANNUALLY.
ONLY ITEM IS LOTTO. NO MAINTENANCE SAME SERVER.
ATTACHMENT A
FEES FOR SERVICES:
--------------------------------------------------------------------------------
Description Individual Price
--------------------------------------------------------------------------------
1 Year Lotto Magic(TM) Standard Software $1000 Monthly or $1,000 annually
Maintenance Services, ONE FEE FOR ALL
LOTTERIES $1000 Monthly or $10,000 annually
1 Year Bingo Blast(TM) Standard Software
Maintenance Services -
--------------------------------------------------------------------------------
TOTAL: $ 12,000
-------
NOTE: Yearly maintenance price is only applicable when paid in full prior to
applicable calender year of service.
AIE/Confidential
