WINNER'S POT POKER LICENSE AGREEMENT
WINNER'S
POT POKER LICENSE AGREEMENT
This
License Agreement is entered into as of the last date appearing below by and
between Poker
Magic, Inc.,
000
Xxxx Xxxxxx, X.#000, Xxxxxxx, Xxxxxxxxx 00000, hereinafter "Licensor", and
Bally's
Park Place, Inc. a New Jersey corporation dba Bally's Atlantic
City,
hereinafter "Licensee", Xxxx Xxxxx & Xxxxxxxxx, Xxxxxxxx Xxxx, Xxx Xxxxxx
00000, hereinafter "Location". Licensor and Licensee may be collectively
referred to herein as the "Parties" or each singularly referred to as a
"Party".
Article
1 - Definitions
1.01
"Winner's
Pot Poker” means the Winner’s Pot Poker table game ("Game") protected by United
States Patent and Proprietary Rights.
1.02
"Patent
and Proprietary Rights" shall include, but are not limited to:
(a) the
table
game Winner’s Pot Poker;
(b) US
Patent
Application Number 5839732, filed May 8, 1997;
(c) all
trademarks, trade secrets, patent and copyrights held by Licensor to the
Winner's Pot Poker table game, its design, layout, markings, rules,
instructions, advertising, promotional material and instructions for
play;
(d) the
table
game Winner’s Pot Poker and design and Licensor’s trademarks; and,
(e) all
goodwill associated with the Winner’s Pot Poker table game, the copyrights,
trade names, trademarks and patents.
1.03
"Unit"
shall mean a single Game table layout.
Article
2 - Grant
2.01
Licensor
warrants and represents that Licensor owns the Patent and Proprietary Rights
in
and to the Game. Licensor further warrants that Licensor has the right to grant
to Licensee the use of the xxxx Winner’s Pot Poker in the State of New Jersey,
and specifically at Licensee's Location. Licensor hereby grants to Licensee,
and
Licensee hereby accepts, subject to the terms and conditions set forth in this
License Agreement, a non-exclusive license (without the right to sublicense)
under the Patent and Proprietary Rights to offer to its patrons the casino
table
game (non-video) version of the Game, as provided to Licensee by Licensor at
Licensee's Location. The ownership of the Patent and Proprietary Rights shall
remain the sole and exclusive property of the Licensor.
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Pot Poker
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Article
3 - Payment
3.01
One
(1)
Unit, including layout and table sign(s), shall be provided by Licensor to
Licensee on a trial basis at no charge until such time as the New Jersey Casino
Control Commission ("Commission") ends the test period for the Game (the "Trial
Period").
3.02
Should
Licensee decide to operate the Unit beyond the Trial Period, Licensee shall
pay
Licensor a monthly license fee to be determined by the Parties during the course
of the Trial Period. In the event the Parties cannot agree on the appropriate
fee during the Trial Period, this License Agreement shall terminate upon the
conclusion of the Trial Period and the terms of Article 6.03 shall
apply.
Licensor
shall provide Game training and player information cards at no
charge.
Article
4 - General Obligations of Licensee
4.01
Licensee
shall conduct the Game at its premises in accordance with the rules and
regulations of the Game, the Licensor's approved pay tables and all regulations
of the State of New Jersey.
4.02
Licensee
is responsible for and will pay all Game prizes/winnings in accordance with
the
paytable attached hereto as Exhibit "A" or any other Game paytable approved
by
the State of New Jersey.
4.03
Licensee
shall provide any surveillance equipment required by applicable gaming
regulations.
4.04
Licensee
shall provide all necessary intra-property power and communication lines for
material and equipment provided by Licensor.
Article
5 - General Obligations of Licensor
5.01
Licensor
shall supply the Unit(s) during the term of this License Agreement, along with
training for Licensee's pit and surveillance personnel and Game player
information cards.
Article
6 - Term and Termination
6.01
The
term
of
this
License Agreement is month to month, beginning on the date the Game is first
open to the public. Either Party may terminate this License Agreement at any
time by providing the other Party with thirty (30) days written
notice.
6.02
Notwithstanding the termination provision listed in paragraph 6.01, either
Party, at its sole discretion, may terminate this License Agreement for one
of
the
following reasons by giving written notice to the other Party:
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Pot Poker
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(a) If
either
Party fails to perform any of its obligations hereunder and fails to cure such
non-performance within thirty (30) days from the date the other Party sends
written notice of default to the non-performing Party (all obligations of the
Licensee hereunder are considered essential and material).
(b) If
either
Party takes any action or fails to take action which, in the sole discretion
of
the other Party, jeopardizes any of other Party's licenses and/or approvals
from
the State of New Jersey, or any other gaming jurisdiction, and fails to correct
such action within thirty (30) days of the other Party's written notification
describing such action or inaction; or continued relationship with the other
Party jeopardizes any license a Party has or may be seeking in the United States
or any foreign country.
6.03
Immediately following any termination, Licensee shall tender for collection
by
Licensor all Units and other material and equipment provided by Licensor to
Licensee under this License Agreement, all in proper working order, normal
wear
and tear excepted. The termination of this License Agreement shall not prejudice
any rights or remedies that shall have accrued to either Party prior to the
date
of such termination.
Article
7 - Marking
7.01
Licensor
shall xxxx each Unit of the Game and product literature and any advertisements
for the Game in a manner that reflects Licensor's ownership of Patent and
Proprietary rights associated with the Game. All such marking and advertisements
must be approved by Licensor in writing prior to their public display or
use.
Licensor
hereby grants Licensee a nonexclusive, revocable license to use the trademarks
in connection with the use and promotion of the Game. All promotional materials
shall indicate that the trademarks are used under license from Licensor and
that
the Game is a trademark of Licensor. Licensor shall supply camera-ready artwork
(nominal charges may apply) of the design at the request of Licensee to Licensee
for the purpose of incorporation into advertising and promotional materials
for
the Game.
Article
8 - Indemnification
8.01
In
the
event any third party makes any claim that Licensee is infringing on another
person's or entity's trademark, trade secret, patent or copyright as a result
of
participation in the Game, then, and in that event, Licensor shall indemnify,
defend and hold Licensee harmless against all liability or expense resulting
from any such claim or suit arising out of or relating to the Game. Licensee
agrees to:
(a) Promptly
inform Licensor in writing of any such infringement claim or infringement
suit.
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(b) Allow
Licensor to have exclusive control of the defense of such infringement claim
or
suit, including the selection of attorneys, as well as exclusive control in
all
negotiations relating to its settlement. Licensor will not settle any such
claim
without Licensee's consent, unless Licensee receives a full release of any
such
claim and incurs no affirmative obligations.
(c) Licensee
will use reasonable commercial efforts to assist Licensor as reasonably
requested by Licensor in the prosecution of the defense of such claim or suit,
at no cost to Licensee.
If
Licensor does not accept Licensee's request for defense and indemnity within
fourteen (14) days of being notified of such claim, Licensee will be allowed
to
defend itself with counsel of its own choosing until such time as Licensor
accepts such defense. If Licensor refuses to defend and indemnify Licensee,
Licensee, in addition to all other remedies available to it, will be entitled
to
recover its costs and reasonable attorney fees from Licensor.
8.02
Licensor
agrees to defend, indemnify and hold Licensee harmless from any and all claims,
demands, loss, costs, damages, settlements, judgments, orders or awards
(including court or administrative proceedings costs and attorney's fees) or
causes of
action
arising out of personal injury or property damage caused by a design or
manufacturing defect of a Unit or otherwise attributable to the negligent,
grossly negligent or intentional acts and/or omissions of Licensor.
Article
9 - General Provisions
9.01
In the
performance of this License Agreement, Licensor shall comply with all applicable
laws and rules, regulations, and determinations of all relevant governments
and
agencies. Licensor will indemnify, defend and save harmless Licensee from all
liability and responsibility whatsoever which may now or hereafter be asserted
by reason of any failure on the part of Licensor or any of its employees to
comply with all such laws, rules, regulations and determinations.
9.02
Licensee
shall not make any reproduction of or modifications to the Unit(s), material
and
equipment provided under this License Agreement without the Licensor's prior
written consent.
9.03
Any
notices required or provided for by the terms of this License Agreement shall
be
in writing, and shall be sent by either facsimile transmission or by first-class
mail, postage prepaid, to the business address of
the
Party
to be given notice. Either Party may change its business address by notice
to
the other Party. Notices shall be deemed received by the Party to whom the
notice is given on the day it is actually received or, in the case of mailing,
on the second day following the day it is deposited in first class mail postage
prepaid to the business address of the Party to whom notice is being
given.
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9.04
Licensor
and/or its employees are independent contractors herein, and shall not be
considered under this License Agreement or any other agreement between the
Parties hereto as having any employee status of Licensee. Neither
Licensor nor any of the employees of Licensor shall have any benefits or any
employee status of Licensee. Neither Party has any authority to act for any
other Party as an agent, partner, or joint venturer as a result of this License
Agreement. Licensor has no authority whatsoever to bind Licensee to any other
agreements, promises, or undertakings. This License Agreement shall not be
construed as creating or constituting a partnership or joint venture between
any
of the Parties.
9.05
Licensor
and Licensee represent and warrant that during the term of this License
Agreement, they will procure and keep valid all necessary business licenses
or
other permits or approvals.
9.06
Licensor
represents and warrants that the Game has all requisite gaming regulatory
approvals from the State of
New
Jersey.
9.07
Licensor
shall, if state law requires, provide worker's compensation insurance in
accordance with the laws of the State of New Jersey and shall provide Licensee
with a copy of a paid up Certificate of Insurance showing worker's compensation
insurance.
9.08
This
License Agreement contains the entire agreement between the Parties and there
are no other promises or conditions in any other agreement, whether oral or
written. This License Agreement supersedes any prior oral or written
agreements.
9.09
This
License Agreement may not be modified or amended except in writing, executed
by
both Parties.
9.10
If any
of the provisions of this License Agreement shall be held to be invalid or
unenforceable for any reason, the remaining provisions shall continue to be
valid and enforceable. If a court of competent jurisdiction finds that any
provision of
the
License Agreement is invalid or unenforceable, but that by limiting such
provision it would become valid and enforceable, then such provision shall
be
deemed to be written, construed and enforced as so limited.
9.11
The
failure of
either
Party to enforce any provision of
this
License Agreement shall not be construed as a waiver or limitation of
the
Party's right to subsequently enforce and compel strict compliance with every
provision of
this
License Agreement.
9.12
This
Agreement shall be construed in accordance with and governed by the laws of
New
Jersey. Any legal action arising out of this Agreement shall be brought only
before the Superior Court of New Jersey, Atlantic County.
9.13
The
prevailing Party In any dispute arising out of this License Agreement shall
be
entitled to an award of costs and reasonable attorney fees.
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Pot Poker
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9.14
This
License Agreement may not be assigned by either Party except in writing, signed
by all Parties.
9.15
As a
holder of a privileged gaming license by the State of New Jersey, Licensee
is
required to adhere to strict laws and regulations regarding vendor and other
business relationships. If, at any time, Licensee determines, at its sole
discretion, that Licensor, its principals, or any key employees violate any
applicable statutes and regulations regarding prohibited relationships with
gaming companies, Licensee shall immediately terminate this License
Agreement.
9.16
Licensor
has or agrees to acquire all necessary licenses by all applicable federal,
state
and local gaming authorities, if required. If any person or entity connected
with this License Agreement is found unsuitable by the New Jersey Casino Control
Commission, or if Licensee is advised by the New Jersey Casino Control
Commission to terminate its relationship with such person or entity, or if
Licensee determines, in good faith, that it would be in its best interests
to
terminate its relationship with such person or entity in order to protect its
applicable licenses, Licensee shall be allowed to immediately terminate the
relationship with said person or entity without liability to
Licensor.
9.17
This
License Agreement is subject to the review and approval of the New Jersey Casino
Control Commission and to all events and actions resulting from any regulatory
decision. In the event Licensor willfully fails to
respond or cooperate with any investigation by New Jersey Gaming authorities,
or
if Licensor or any of its officers or owners are found unsuitable under this
Act, and such finding is not reversed or cleared within thirty (30) days, then
this will be an automatic default by Licensor and this License Agreement may
be
immediately terminated by Licensee without penalty upon written notice to
Licensee.
9.18
This
License Agreement, its terms and conditions, shall be conditioned upon approval
of the New Jersey Casino Control Commission ("Commission*). It is understood
and
agreed by and between the parties that if, at any time, either prior to or
subsequent to the initiation of this License Agreement, the Commission shall
render a final determination either disapproving the terms and conditions of
this License Agreement, or denying the application of Licensor, its agents
and/or assignee(s) and/or its transferee(s), for any applicable license, then
this License Agreement shall be deemed terminated as of the date of such
disapproval or denial as though such date were the date originally fixed herein
for termination of this License Agreement. In the event of such termination
due
to disapproval or denial by the Commission, Licensee shall not be deemed in
default under any provision of this License Agreement. Further, it is fully
understood by and between the parties that the licensure of Licensor with the
Commission shall be, and is, a condition that must be met for Licensee to
proceed with this License Agreement.
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IN
WITNESS WHEREOF,
the
parties have caused this License Agreement to be effective as of the last date
appearing below.
LICENSOR: | LICENSEE: | |||
Poker Magic, Inc. | Bally’s Park Place, Inc a New Jersey corporation dba Bally’s Atlantic City | |||
BY:
|
/s/
Xxxx Xxxxxxxx
|
BY:
|
/s/
Xxx Xxxxxxxx
|
|
NAME:
|
Xxxx
Xxxxxxxx
|
NAME:
|
Xxx
Xxxxxxxx
|
|
TITLE:
|
President
|
TITLE:
|
Sr.
Vice President
|
|
DATE:
|
January
4, 2008
|
DATE:
|
December
26, 2007
|
|
FED.
I.D.:
|
00-0000000
|
|||
NUMBER
|