EXHIBIT 10.6
AGREEMENT
This Agreement ("Agreement") is effective as of December ___, 2002,
("Effective Date") by and between uWink, Inc., a Delaware corporation ("uWink"),
and Scientific Games Corporation, a Delaware corporation and/or any affiliate
("SGC"), (each a "Party" and collectively the "Parties").
A. uWink is a global network entertainment system, offering an array of
games, regularly scheduled prized tournaments, league play, E-commerce, news and
other products using touch screen terminals;
B. SGC is engaged in the business of providing products to the lottery,
racing, and telecommunications industries; and
C. The Parties desire to set out the terms of their agreement with
respect to the rights and duties of uWink and SGC, all as more particularly set
forth below.
NOW THEREFORE, in consideration of the mutual provisions contained
herein, the receipt and sufficiency of which are hereby acknowledged, and the
mutual benefits they will gain by their performances thereof, all in accordance
with the provisions hereinafter set forth, the Parties agree as follows:
ARTICLE 1
DEFINITIONS
-----------
1.1 CONFIDENTIAL INFORMATION. The term "Confidential Information" means
any confidential information of a Party relating to any designs, know-how,
inventions, technical data, ideas, uses, processes, methods, formulae, research
and development activities, work in process, or any scientific, engineering,
manufacturing, marketing, business plan, financial or personnel matter relating
to the disclosing Party, its present or future products, sales, suppliers,
customers, employees, investors or business, whether in oral, written, graphic
or electronic form (which is marked confidential or acknowledged as being
confidential prior to disclosure). If the Confidential Information is disclosed
orally or visually, it shall be identified as such at the time of disclosure and
confirmed in writing by the disclosing Party within thirty (30) days of
disclosure. Confidential Information shall also include any other information in
oral, written, graphic or electronic form which, given the circumstances
surrounding such disclosure, would be considered confidential.
1.2 ELECTED PATENT. The term "Elected Patent" is defined in Section5.2.
1.3 FIELD. The term "Field" means lottery or gaming markets that
operate on chance, and not skill, and shall be deemed to include pari-mutuel
wagering
1.4 GROSS SALES. The term "Gross Sales" means, with respect to uWink
Products, the total amount of invoiced sales by uWink, less all amounts for
freight, insurance, sales and use taxes.
1.5 GROSS LICENSE FEES. The term "Gross License Fees" means, with
respect to uWink Products, the total amount of license fees invoiced by uWink.
1.6 INTELLECTUAL PROPERTY RIGHTS. The term "Intellectual Property
Rights" means all United States and worldwide trademarks, service marks, trade
names, trade dress, logos, copyrights, rights of authorship, inventions, mask
work rights, moral rights, patents, rights of inventorship, all applications,
registrations and renewals in connection with any of the above, database rights,
know-how, trade secrets, rights of publicity, privacy and/or defamation, rights
under unfair competition and unfair trade practices laws, and all other
intellectual and industrial property rights related thereto.
1.7 LICENSE. The term "License" is defined in Section 4.
1.8 NET SALES PRICE. The term "New Sales Price" means the Gross Sales
Price less the complete cost of making such uWink Product, including all
material and components, and direct labor and overhead which may be allocated
thereto in accordance with generally accepted accounting principles consistently
applied, as by an independent accounting firm suggested by uWink.
1.9 NEW PRODUCTS. The term "New Products" means newly developed uWink
Products and concepts for uWink Products for the Field that have not been sold
or distributed into the commercial market as of the Effective Date. "New
Products" does not include and specifically excludes new versions of uWink
Products that are sold or distributed into the commercial market as of the
Effective Date.
1.10 OPPORTUNITY NOTICE. The term "Opportunity Notice" is defined in
Section3.1.
1.11 PERSON. The term "Person" means an individual, partnership
(general or limited), limited liability company, corporation or other single
corporate entity.
1.12 PROGRAM. The term "Program" means the process during the term of
this Agreement by which SGC is informed about the business plans of uWink in
order for SGC to determine whether such information and/or ideas may be useful
in the business of SGC and the process by which SGC discloses information
concerning its business to uWink in order for uWink to decide which information
it has is relevant to the business of SGC. .
1.13 PROSECUTION NOTICE. The term "Prosecution Notice" is defined in
Section5.1.
1.14 SALE. The term " Sale" is defined in Section4.1.
1.15 UWINK PRODUCT. The term "uWink Product" or "uWink Products" means
uWink's touchscreen terminals intended to be used in the Field.
ARTICLE 2
PROGRAM
-------
2.1 COOPERATION.
2.1.1 During the term of the Program, the Parties shall
cooperate with respect to the Program goals in such of the following ways as are
appropriate:
(i) exchange of information;
(ii) exchange of delegations of specialists and
trainees;
(iii) mutual consultations for the purpose of
discussing and analyzing engineering and technical problems, technical
principles, ideas and concepts;
(iv) such other procedures as may be mutually agreed.
2.1.2 The results of such efforts will be presented in
writing.
2.1.3 Under no circumstances shall uWink at any time enter
into any similar relationship in the Field to or with any direct or indirect
competitor of SGC.
2.1.4 All Intellectual Property Rights developed, made,
conceived or reduced to practice by either Party or by either Party's agents or
contractors prior to the date of this Agreement, together with any and all
property rights embodied therein, and any and all licenses of proprietary rights
acquired by either Party prior to the date of this Agreement, as between the
Parties, is and shall remain the sole property of such Party and nothing herein
shall be construed to confer any rights upon either Party by implication,
estoppel or otherwise as to any technology except such rights as are expressly
granted in this Agreement.
ARTICLE 3
RIGHT OF FIRST NEGOTIATION AND FIRST REFUSAL
--------------------------------------------
3.1 NOTICE. uWink will provide SGC with a single written notice for
each such New Product ("Opportunity Notice"). The timing of the Opportunity
Notice shall be determined by uWink, in its sole discretion, provided that uWink
must choose one of the following events as the event triggering the Opportunity
Notice and must provide the Notice in a timely manner following: (i) disclosure
of a concept, (ii) the tender of a prototype, or (iii) definition of a product
requirement.
3.2 RIGHT OF FIRST NEGOTIATION AND FIRST REFUSAL. uWink hereby grants,
during the term of this Agreement, to SGC the exclusive right of first
negotiation and the right of last refusal with reference to the acquisition of
an exclusive, world-wide license ("License") in the Field to any New Product.
3.2.1 uWink and SGC will negotiate the terms and conditions of
one or more Licenses during the ninety day period commencing on the date of the
Opportunity Notice If uWink and SGC are unable to agree on the terms and
conditions during this exclusive negotiation period, uWink will then be free to
negotiate with third parties subject only to SGC's right of last refusal.
3.2.2 The term "right of last refusal" as used herein shall
mean SGC's right to accept the same material terms and conditions that uWink has
been able to negotiate with one or more third parties for a License. SGC shall
have a period of thirty business days commencing on the first business day after
SGC receives written notice from uWink of the details of such material terms and
conditions together with uWink's acknowledgment that they are willing to accept
such proposed terms and conditions in which to exercise its right of last
refusal. If SGC elects not to, or fails to, exercise its right of last refusal
as herein provided, uWink shall be free to enter into an agreement with such
third party on such material terms and conditions, provided, however, that if
uWink fails or refuses for any reason whatsoever to enter into an agreement with
said third party or parties on terms and conditions consistent in all material
respects with those set forth in the notice to SGC, SGC's right of last refusal
shall continue pursuant to the terms of this Agreement.
3.3 END OF TERM LICENSE. At the expiration of the term of this
Agreement for other than a breach by SGC, if any New Product is developed to the
prototype stage during the term of this Agreement has not been the subject of an
Opportunity Notice, as required herein, then SGC may demand arbitration in New
York City in accordance with the Rules of the American Arbitration Association
to determine an appropriate license fee for SGC to acquire a License to said New
Product.
ARTICLE 4
LICENSES AND SALES OF PRODUCTS
4.1 LICENSES AND SALES. SGC may assist uWink, on a non-exclusive basis,
in introducing uWink to Persons and uWink shall either attempt to negotiate
licenses with such Persons for the supply of uWink Products in the Field,
including, without limitation New Products ("License") or negotiate sales of
such products ("Sale"). SGC shall coordinate its efforts to introduce Persons to
uWink by providing the name and details of such Person to uWink prior to making
an introduction. Should such Person already be known to uWink in connection with
a similar proposed business arrangement or should uWink desire not to enter into
an agreement with such Person, then uWink will advise SGC of such fact and this
Section shall not apply with respect to such Person, unless otherwise agreed
upon in writing by the Parties.
4.2 APPLICABILITY. This Section shall apply only with respect to the
consummation of a License with or a Sale to a Person provided that (i) SGC
introduced such Person to uWink, and (ii) SGC participated in the negotiation of
such License or Sale, and not with respect to any other transaction by uWink
including, without limitation, any other transaction or business arrangement
with such Person. uWink shall allow SGC to participate in any negotiations.
4.3 COMPENSATION. In the event that uWink, during the term of this
Agreement or within six (6) months after the termination or expiration of the
term of this Agreement, in its sole discretion enters with a Person introduced
by SGC into a License or Sale, then SGC shall be paid as its sole and final
compensation under this Section an amount equal to, respectively, with respect
to Licenses, five percent (5%) in cash of the Gross License Fees received by
uWink, and with respect to Sales, the greater of five percent (5%) in cash of
the Gross Sales price received by uWink from such Sale or fifteen percent (15%)
of the Net Sales Price. Said amount shall be payable to SGC as long as License
Fee is paid to uWink.
4.4 NON-BINDING. This Agreement does not constitute an agreement or
commitment (express or implied) on the part of uWink to enter into any agreement
or to enter into and consummate any transaction, and nothing in this agreement
shall prevent uWink from abandoning or otherwise electing not to proceed with
any proposed license or any other transaction with a Person. uWink shall have
final authority to make all decisions with respect to any proposed license or
any other transaction with a Person, including the right to determine whether to
proceed with such a transaction, and in no event shall uWink have any liability
or obligation to SGC with respect to any proposed license or sale with respect
to uWink Products in the Field not accepted or entered into by uWink.
4.5 EXCEPTION. uWink may be retained to develop or assist in the
development of any product in the Field based upon any third party's own design;
provided, however, in no event shall uWink employ Intellectual Property Rights
subject to SGC's rights under this Agreement unless SGC has waived such rights
in writing.
ARTICLE 5
PATENT COOPERATION
------------------
5.1 FUNDING OPPORTUNITIES. uWink shall, from time to time during the
term of this Agreement, disclose to SGC in writing its plan to pursue patent
protection in the United States or another country in the world, for an
invention related to or arising from a uWink Product, including without
limitation New Products ("Prosecution Notice"). Notwithstanding the previous
sentence, the Prosecution Notice shall not disclose any inventions or any other
trade secrets, the disclosure of which would jeopardize, in uWink's sole
discretion, its Intellectual Property Rights.
5.2 FUNDING ELECTION. SGC will have thirty (30) calendar days
immediately following the date of the Prosecution Notice, to elect to fund all
prosecution and maintenance costs arising from the applications described in the
Prosecution Notice. Should SGC provide uWink with a timely written notice of its
election to fund all prosecution and maintenance costs arising from the
applications described in the Prosecution Notice, then the patent application
subject to the Prosecution Notice elected to be funded by SGC pursuant to this
Section, and all divisionals, continuations, continuations-in-part, extensions
(including supplemental protection certificates), substitutions, registrations,
confirmations, re-examinations, renewals and patents issuing thereon or reissues
thereof, and any and all claims under United States and foreign patents and
patent applications corresponding directly thereto ( collectively "Elected
Patent") shall be prosecuted and maintained pursuant to Section5.3.
5.3 PROSECUTION AND MAINTENANCE.
5.3.1 uWink shall prosecute, at SGC's sole cost, the Elected
Patent and shall maintain, at SGC's sole cost, such patent. SGC will have
unlimited rights of consultation, at its sole cost, with uWink and with the
patent attorney selected by uWink on all status matters only relating to the
Elected Patent.
5.3.2 All patent expenses and costs incurred by uWink incident
to the filing, prosecution and maintenance of the Elected Patent, shall accrue
on the account of and be reimbursed by SGC. SGC shall pay all such patent
expenses and costs for each Elected Patent within thirty (30) days of uWink's
statement detailing such costs and expenses.
5.3.3 In the event that SGC decides not to continue to support
and fund the prosecution of an Elected Patent or the maintenance of an Elected
Patent, SGC will give uWink at least fifteen (15) days prior written notice of
such election. No such notice will have any effect on SGC's obligations to pay
expenses and costs incurred up to the effective date of such election. From and
after the effective date of such election, uWink will have the right, but not
the obligation, to pay for the prosecution or maintenance of such Elected Patent
application that SGC is discontinuing. From and after the effective date of such
election, any such Elected Patent as to which SGC will have elected to
discontinue payment will thereafter be governed by Section 5.5.2. .
5.4 APPLICABILITY. This Section shall apply only with respect to any
monetary receipts received during the life of an Elected Patent from use of such
Elected Patent.
5.5 COMPENSATION.
5.5.1 In the event that uWink, in its sole discretion licenses
any aspect of an Elected Patent to a third party then SGC shall be paid as its
sole and final compensation under this Section an amount equal to fifty percent
(50%) in cash of the Gross License Fees received by uWink, during the life of
the Elected Patent, under such license of the Elected Patent. In the event that
uWink sells a uWink Product at any time that uses any claims of an Elected
Patent, then SGC shall be entitled as its sole and final compensation for such
uWink Product, to an amount equal to fifty percent (50%) in cash of the fair
market value, as negotiated in good faith and mutually agreed to by the Parties,
of such patented feature. In the event uWink at any time sells a patent funded
by SGC, SGC shall be entitled to receive an amount equal to 50% of the amount
paid for said patent.
5.5.2 In the event funding is terminated as provided in Section 5.3.3,
the provisions of Section 5.5.1 shall apply but the percentage shall be equal to
the proportion the actual funded amount bears to the total cost of the patent.
5.6 NON-BINDING. This Agreement does not constitute an agreement or
commitment (express or implied) on the part of uWink to disclose any plan to
pursue patent protection in the United States or another country in the world,
for an invention related to or arising from a uWink Product, or to enter into
any business arrangement with respect to an Elected Patent
5.7 NO REIMBURSEMENT. SGC shall not be entitled to be reimbursed any of
the patent costs and expenses paid under this Section even if it receives no
compensation with respect to such Elected Patent during the term of this
Agreement.
5.8 LICENSE TERMS. To the extent that the Parties enter into a license
agreement with respect to any uWink Products, such license agreement will have
warranties and representations to SGC that uWink exercised due diligence in the
performance of its development so as not to infringe upon or practice any
patent, right or other, intangible property right belonging any third party.
Such license agreement shall also provide that uWink will indemnify and hold SGC
harmless from and against all costs, expense, fees, liabilities and/or
obligations arising out of the foregoing warranty and representation of uWink,
as well as any other additional and customary terms as the Parties may mutually
agree upon.
ARTICLE 6
GENERAL OBLIGATIONS
-------------------
6.1 ADVERTISING. SGC shall provide samples of its advertising copy and
sales literature relating in any aspect to uWink or the uWink Products, in their
original language to uWink prior to their publication or other dissemination.
uWink reserves the right to review and approve all uses of uWink's name and
uWink's other trademarks in SGC's advertising and promotion of uWink and the
uWink Products, prior to their use. Such approval will not limit SGC's
obligation to comply with all applicable laws and will not be deemed an
endorsement or approval of any advertising content.
6.2 COMPLIANCE WITH LAWS. SGC and uWink will comply with all applicable
laws and regulations that govern its activities under this Agreement Each Party
will comply with the compliance procedures of the other Party, which procedures
are intended to insure the integrity of all business partners and business
relationships These procedures are designed to sever business relationships when
standards of integrity are not met.
6.3 BUSINESS PRACTICES. Each Party shall: (a) avoid deceptive,
misleading or unethical practices, (b) make no false or misleading
representations with regard to the others Products, (c) not solicit orders from
any Person that engages in illegal or deceptive trade practices or any other
practices proscribed under this Agreement or under any applicable laws,
regulations or practices; and (d) take no action, directly or indirectly, to
hinder or frustrate the other Party in the exercise of its rights hereunder.
Each Party shall conduct its business for its own account, as an independent
contractor, in its own name, and not as an agent, employee, or partner of the
other Party or actually, impliedly or ostensibly hold itself out as such. Except
as herein expressly provided, Each Party shall determine in its own judgment how
best to perform its obligations hereunder, and the other Party has no right to
control such matters.
ARTICLE 7
PROPRIETARY RIGHTS
------------------
7.1 UWINK'S RIGHTS.
7.1.1 All Intellectual Property Rights related to uWink
Products shall always remain with uWink, and SGC shall not acquire any interest
therein except as otherwise provided in this Agreement. The Parties agree that
uWink shall solely own and have exclusive worldwide Intellectual Property Rights
in and to the uWink Products and to all modifications, enhancements and
derivative works thereof. SGC shall not challenge, contest or otherwise impair
the validity or enforceability of uWink' Intellectual Property Rights related to
the uWink Products.
7.1.2 uWink shall solely own and have exclusive worldwide
right, title and interest in and to the Elected Patents, any modifications,
enhancements and derivative works thereof, and to all Intellectual Property
Rights related thereto. SGC hereby acknowledges and agrees that title to the
Elected Patents shall always remain with uWink, and that SGC shall not acquire
any interest therein except as otherwise provided in this Agreement. SGC shall
not challenge, contest or otherwise impair uWink's ownership of the Elected
Patents or the validity or enforceability of uWink's Intellectual Property
Rights related thereto.
7.2 CONFIDENTIALITY. Both Parties agree that during the performance of
this Agreement, each Party may disclose to the other Confidential Information of
such disclosing Party. Each Party shall not in any way disclose, copy, modify,
distribute or otherwise transfer the other Party's Confidential Information, or
any part thereof, to any other person or entity at any time, except as
specifically permitted by this Agreement. Each Party has the right to disclose
the Confidential Information of the other Party only to its employees who have a
specific need to know in order to perform that Party's obligations hereunder,
but each Party shall be responsible for all of its employees' actions. Each
Party shall use the other Party's Confidential Information only to properly
fulfill its obligations hereunder, and not for any other purpose. Upon request,
each Party shall immediately return to the other Party the originals and all
copies of any Confidential Information of the other Party. The obligations and
restrictions set forth in this Section 6.2 shall not apply to any Confidential
Information that falls within any of the following exceptions, provided the
receiving Party produces credible written evidence to establish that such
information:
7.2.1 is or becomes part of the public domain without breach
of this Agreement by a receiving Party;
7.2.2 is independently developed by or for a receiving Party
completely apart from the disclosures hereunder;
7.2.3 is received from a third party who lawfully acquires
such information without restriction, and without breach of this Agreement by a
receiving Party;
7.2.4 was in a receiving Party's possession prior to the
disclosure by the other Party; and/or
7.2.5 is released pursuant to a binding court order or
government regulation, provided that the receiving Party delivers a copy of such
order or action to the other Party and cooperates with the other Party if it
elects to contest such disclosure.
If a receiving Party wishes to rely on the exceptions contained in
subparagraphs 7.2.2, 7.2.3 or 7.2.4 above, then such receiving Party must
demonstrate to the other Party's reasonable satisfaction the facts underlying
why the exception applies within thirty (30) days of receipt of the Confidential
Information from the other Party or of the applicability of such exception, as
the case may be.
7.3 ENFORCEMENT. SGC and uWink agree that either Party will be
irreparably harmed and money damages would be inadequate compensation to a Party
in the event the other Party breaches any provision of this Agreement.
Accordingly, all of the provisions of this Agreement shall be specifically
enforceable, and each Party shall be entitled to injunctive relief against the
other Party, in addition to other available remedies, for the other Party's
breach of any provision of this Agreement.
7.4 INFRINGEMENT. SGC agrees to notify uWink of any conduct or actions
on the part of third parties, which it deems to be an infringement or other
violation of uWink's Intellectual Property Rights to the Wink Products or any
Elected Patents. In such event, uWink shall have the sole right to bring an
action for infringement or other appropriate action with respect thereto. uWink
shall exclusively control the prosecution or settlement of any such action.
ARTICLE 8
WARRANTIES
----------
8.1 MUTUAL WARRANTIES. Each Party represents and warrants to the other
Party that it is not a party to any restrictions, agreements or understandings
which would prevent or make unlawful such Party's acceptance of the terms set
forth in this Agreement or such Party's performance hereunder. Each Party
further represents that its acceptance of the terms of this Agreement and the
performance of its obligations hereunder does not and will not (with or without
the passage of time) conflict with or constitute a breach or default of any
contract, agreement or understanding, oral or written, to which such Party is a
party or by which such Party is bound. uWink and SGC further warrant to each
other that each has the right to enter into this Agreement, to perform all of
its respective obligations hereunder and to transfer and grant the rights
transferred and granted herein. Each Party will perform this Agreement in
accordance with professional industry standards.
8.2 DISCLAIMER OF WARRANTY. uWINK SPECIFICALLY PROVIDES NO WARRANTY
WHATSOEVER THAT THE uWINK PRODUCTS AND MATERIALS RELATED THERETO OR ALL
COMPONENTS THEREOF WILL BE BUG OR ERROR FREE OR THAT THE uWINK PRODUCTS AND
MATERIALS RELATED THERETO, ALL COMPONENTS THEREOF, WILL BE SUITABLE FOR SGC'S
PURPOSES OR THAT ANY LETTERS PATENT WILL BE GRANTED FOR ANY OF THE ELECTED
PATENTS. EXCEPT AS MAY BE SPECIFICALLY SET FORTH IN A SEPARATE WRITING, uWINK
EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING THE uWINK PRODUCTS AND MATERIALS
RELATED THERETO AND ALL COMPONENTS THEREOF AND ALL ELECTED PATENTS, WHETHER
EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR BASED ON COURSE OF CONDUCT OR TRADE
CUSTOM OR USAGE.
ARTICLE 9
ALLOCATION OF LIABILITIES
-------------------------
9.1 INDEMNITY. Each Party shall indemnify, defend and hold harmless the
other Party against all damages, claims, liabilities, losses and other expenses,
including without limitation reasonable attorneys' fees and costs, whether or
not a lawsuit or other proceeding is filed, that arise out of (a) the other
Party's transactions with its customers, suppliers and any other parties, (b)
any violations of the export laws or regulations of the United States or any
applicable country, and/or (c) the other Party's negligent or willful acts or
omissions. Each Party shall promptly notify the other Party in writing after it
becomes aware of any such claims, but failure to give such notice shall not
relieve the first Party of its indemnity obligations hereunder. The indemnifying
Party shall have exclusive control over the settlement or defense of such claims
or actions, except that the other Party may appear in the action, at its own
expense, through counsel reasonably acceptable to the indemnifying Party, only
in the event it is mutually determined by the parties that an actual conflict of
interest would exist by the other Party's representation. The non-indemnifying
Party shall give the indemnifying Party , at such indemnifying Party's expense,
all information and assistance reasonably requested to settle or defend such
claims or actions. The indemnifying Party shall be entitled to retain all
monetary proceeds, attorneys' fees, costs and other rewards it receives as a
result of defending or settling such claims. In the event the indemnifying Party
fails to promptly indemnify and defend such claims and/or pay the other Party's
expenses, as provided above, the other Party shall have the right to defend
itself, and in that case, the indemnifying Party shall reimburse the other Party
for all of its reasonable attorney's fees, costs and damages incurred in
settling or defending such claims within thirty (30) days of each of the other
Party's written requests.
9.2 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR NOT, THAT ARE IN ANY
WAY RELATED TO THIS AGREEMENT, THE BREACH THEREOF, ANY TRANSACTIONS RESULTING
FROM THIS AGREEMENT, LOSS OF GOODWILL OR PROFITS, LOST BUSINESS HOWEVER
CHARACTERIZED AND/OR FROM ANY OTHER CAUSE WHATSOEVER. NOTWITHSTANDING ANYTHING
TO THE CONTRARY HEREIN, EACH PARTY'S ENTIRE LIABILITY TO THE OTHER PARTY WHETHER
IN TORT, CONTRACT OR OTHERWISE SHALL NOT EXCEED $100,000.00.
ARTICLE 10
TERM AND TERMINATION
--------------------
10.1 TERM. The term of this Agreement shall be that period commencing
on the Effective Date and ending on the third (3) year anniversary of the
Effective Date, unless terminated earlier as set forth in 10.2.
10.2 TERMINATION. This Agreement may be terminated:
10.2.1 Except as set forth otherwise below, by either Party
(a) on sixty (60) calendar days' prior written notice to the other Party in the
event the other Party breaches any of the material obligations on its part to be
performed hereunder and fails to cure such breach within such sixty (60)
calendar days of receiving written notice of the breach specifying in reasonable
detail the nature of such breach, or (b) upon written notice if the other Party
becomes insolvent or bankrupt, or is unable to meet its obligations when they
become due; or (c) immediately and without notice if a receiver or other
liquidating officer is appointed for substantially all of the assets or business
of the other Party, or if the other Party makes an assignment for the benefit of
creditors, or if the rights or interest of the other Party under this Agreement
become an asset under any bankruptcy, insolvency or reorganization proceeding;
or
10.2.2 By uWink immediately if SGC breaches Sections 0 6.1 and
6.2
10.2.3 By SGC immediately if uWink breaches Section 6.2.
10.3 EFFECT OF TERMINATION. The provisions of Sections 4.4, 5.3, 5.4,
5.5, 5.6, 5.7, 5.8, 7.1, 7.2, 7.3, 10.3, and 10.4 and all Sections under ARTICLE
1, ARTICLE 8, ARTICLE 9 and ARTICLE 10 shall survive the termination or
expiration of this Agreement. All payments owed to SGC shall continue after
termination as long as uWink receives payments.
10.4 CESSATION OF USE. Upon termination or expiration of this Agreement
other than as a result of a breach by uWink: (a) SGC shall return to uWink all
copies of documentation regarding the uWink Products and all uWink Confidential
Information previously disclosed to SGC; and (b) SGC shall remain liable for all
of its obligations hereunder that accrued prior to the date of termination.
10.5 CUMULATIVE REMEDIES. Subject to this Agreement, all rights and
remedies conferred herein shall be cumulative and in addition to all of the
rights and remedies available to each Party at law, equity or otherwise.
ARTICLE 11
GENERAL PROVISIONS
------------------
11.1 RELATIONSHIP OF PARTIES. The relationship between the Parties is
only that of independent contractors notwithstanding any joint activities set
forth in this Agreement. Neither uWink on the one hand or SGC on the other hand
is the agent or legal representative of the other Party, and neither Party has
the right or authority to bind the other Party in any way. This Agreement
creates no relationship as partners or a joint venture. Each Party agrees to
cooperate with the other Party, at such other Party's expense, in all actions to
protect such other Party's respective right under this Agreement and to provide
the other Party with all information and assistance reasonably requested by the
other Party, at such other Party's expense.
11.2 GOVERNING LAW AND VENUE. This Agreement shall be interpreted and
enforced under the laws of the State of New York, without application of its
conflicts or choice of law rules.
11.3 ASSIGNMENT. Neither Party may assign this agreement without the
prior written consent of the other, which consent shall not be unreasonably
withheld.
11.4 COUNTERPARTS. This Agreement may be executed in several
counterparts that together shall be originals and constitute one and the same
instrument.
11.5 WAIVER. The failure of a Party to enforce any of its rights
hereunder or at law shall not be deemed a waiver or a continuing waiver of any
of its rights or remedies against the other Party, unless such waiver is in
writing and signed by the Party to be charged.
11.6 SEVERABILITY. If any provision of this Agreement, or part thereof,
is declared by a court of competent jurisdiction to be invalid, void or
unenforceable, each and every other provision, or part thereof, shall
nevertheless continue in full force and effect and the invalid provision shall
be construed to apply to the extent it would be valid.
11.7 NOTICE. All notices, requests or other communications under this
Agreement shall be in writing, and shall be sent to the designated
representatives below, and shall be deemed to have been duly given on the date
of service if sent by facsimile (provided a hard copy is sent in one of the
manners specified below), or on the day following service if sent by overnight
air courier service with next day delivery with written confirmation of
delivery, or five (5) days after mailing if sent by first class, registered or
certified mail, return receipt requested.
To uWink: To SGC:
uWink, Inc. Scientific Games Corporation
0000 Xxxxxxxxx Xx. 000 Xxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000 Xxx Xxxx, XX 00000
Phone 000-000-0000 Phone 000-000-0000
Fax 000-000-0000 Fax 000-000-0000
Each Party is required to notify the other Party in the above manner of
any change of address.
11.8 FURTHER ASSURANCES. The Parties agree to execute such additional
documents and perform such acts as are reasonably necessary to effectuate the
intent of this Agreement.
11.9 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Parties regarding the subject matter hereof, and supersedes all
prior or contemporaneous understandings or agreements, whether oral or written.
This Agreement shall be modified or amended only by a writing signed by each of
SGC and uWink.
11.10 AUTHORITY. The Parties executing this Agreement on behalf of
uWink and SGC represent and warrant that they have the authority from their
respective governing bodies to enter into this Agreement and to bind their
respective companies to all the terms and conditions of this Agreement.
11.11 NO THIRD PARTY BENEFICIARIES. This agreement is for the benefit
of the parties hereto, and shall not create or evidence any right in any third
party.
11.12 CAPTIONS. The captions of the Articles and Sections in this
Agreement are for convenience only and shall not be used to interpret the
provisions of this Agreement.
11.13 CONSIDERATION. The consideration for the rights granted under
this Agreement is the investment by SGC in the common stock of uWink. Any such
investment is conditioned upon execution of this Agreement by uWink.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective
Date.
uWink: SGC:
uWink, Inc. Scientific Games Corporation
By: By:
------------------------------ --------------------------
Name: Name:
------------------------------ --------------------------
Title: Title:
------------------------------ --------------------------
