MAHJONG SOFTWARE LICENSING AND SERVICES AGREEMENT
MAHJONG
SOFTWARE LICENSING
AND SERVICES AGREEMENT
THIS
AGREEMENT is made the 24th
day
of August 2006
BETWEEN:
1. Mahjong
Systems
(Cyprus) Limited ofChry
nthou Xxxxxx,
0
X.X.
0000,
Xxxxxxxx,
Xxxxxx {"MSL"}; and
2. Microgaming
Software Systems Limited
of MGS
House,
Circular
f asd, Xxxxxxx,
Isle of Man. IM 1 1 BL ("Micrngaming'.).
REC'ITALS:
(A) MSL
wishes to
grant
Micragaming a Xxxx-exclusive
license to
use
and
to sub-Iicense the
use
of
the
Mahjong
System: and
(B) Microgaming
wishes tointegrate
the
Mahjong
System with the
Microgaming
System in order to sub-license
the
use
of
the
Mahjong System to certain Microgaming
Operators
so
that
the
Microgaming
Operators' players may
play
the
Mahjong Games online with players
from
other Operators_
NOW
ITIS
AGREED asfollows:
DEFINITIONS
AND INTERPRETATION
1.1 In
this
Agreerncnt,
unless the context requires
otherwise, the following
words and expressions shall have the following meanings:
|
"Clearing
House"
|
means
an
accounting
system
tool service responsible
for
receiving
money
from
Operators
(Microgaming
or otherwise), allocating such monies between participating Operators
of
a Network,
making relevant deductions
and paying
monies back
to
participating operators
in
accordance
with certain rules;
|
| "Effective Date" | means the date of this Agreement; |
| "Ironbridge" | means Ironbridge Limited of XX Xxx 0000, Xxxx Xxxx, Xxxxxxx. XxxxxxxXxxxxx Xxxxxxx; |
|
"Intellectual
Property Rights"
|
means
all rights (including future rights) in inventions, patents, design
rights, trade marks. trade names, domain names, copyrights, mask
works.
know-how. rights in unlawful competition and passing off, and till
or
intellectual property rights, statutory or otherwise. and all features
thereof and all ancillary matter, in any part of the world and whether
or
not registered or registrable and to- the fullest extent thereof
and for
the full period thereof and all extensions and renewals thereof and
all
applications for registration thereof and all rights and interests
thereto:
|
|
"Mahjong
Games"
|
means MSL.'s online, networked mahjong games together with all upgrades, updates. changes., improvements and modifications thereto |
|
"Mahjong
Games"
|
means
the
services to be performed ,y MSL in relation to the
Mahjong
System as
set
out in clause 6;
|
|
"Mahjong System"
|
means
MSL's software
suite for the operation
of an interactive
and netvworked mahjong gaming system,
including
without limitation the Mahjong Games;
|
| "Microgaming Clearing House" | means a Clearing House operated by Ironbridge exclusively for Microgarning Operators; |
|
"Microgaming
System"
|
means
Microgaming's
proprietary software suite made available to Microgarning Operators
by or on behalf of Microgaming including but not limited to games
and
end-use
software and all
ancillary, administrative and supporting software
systems, notes and
information;
|
|
"Microgaming
Operator"
|
means an
entity contracted to Microgaming or its agent
for
players sign up to that entity to play the Mahjong Games online
against
ether players
from
that and other entities:
|
|
"Microgaming
Fee"
|
means
the fee charged
by Microgaming to each of the Microgaming Operators for the use
of
the Mahjong Games
|
|
"Microgaming
Network Rake"
|
means that
portion
of the Rake that is represented by
the ratio of
Microgaming
Operator players participating in the games
of mahjong
the total
number
of players
participating
in the games;
|
|
"MSL
Fees"
|
means
the fees,
calculated
as a percentage of the Microgaming Fee, which are payable by Microgaming
to MSL in terms
of clause.
7.6 and which are set out in
Schedule A
|
|
"Network"
|
means
an online networked
connection between and service
to Operatorrs that allows players originating
from
Operators to play the
Mahjong Games
with other players from the originating and all
other Operators;
|
|
"Operator"
|
means
an
entity contracted to
MSL
for players
signed
up to
that
entity to play
mahjong
online against other players of
that
and other entities;
|
|
"Rake"
|
means
the fee
levied on
a winning player
to
participate in
a
game of mahjong,.,
equal
to a
percentage
of the Winnings
{initially 10%) or
a
tournament entry
feeduring
such
game
of mahjong;
|
|
"Winnings"
|
means
the
total of all amounts won by mahjong players from other mahjong
players,
excluding
such winning
players original xxxxxx.
|
1.2 headings
arc
included
for convenience
only
grid
shall
not
affect the
construction of this Agreement.
1.3 the
expressions
''MSL"
and "Microgaming"
shall
include
(v~here
appropriate) their successors
in title
and
permitted assigns.
1.4 References
to
statutory provisions
shall
be
construed
as refererences to
those
provisions as amended. consolidated. extended or re-enacted from time to
tune.
1.5 References
to "clauses" and "Schedules" are, unless
otherwise
expressly stated, reference-s to the clauses and the schedules to this Agreement
and references to the
"parties" or
"part}" are references to the parties or
a
party
to
this Agreement,
2.
RIGHTS
2.1
MSL
hereby
grantsMicrogaming
a non-exclusive, non-transferable licence to use and
to
sublicense the use of the Mahjong, System in order
that Microgaming Operators'
players
can
access
and play the Mahjong Games online
against players from
Microgaming Operators and
against
players from
Operators.
2.2 Nothing
in thus
Agreement
shall prevent MSL. from licensing any other party to use the Mahjong
System.
2.3 Nothing
in
this Agreement shall prevent Microgaming from developing, using and sub-licensing
its
own
mahjong games or mahjong
system or
from
using and sub-licensing
any third
party's
mahjong games or
mahjong
system.
3.
MICROGAMING'S
REPONSIBILITIES
3.1 Save
for
purposes of cttecttvely integrating
tine Mahjong System with the Microgaming System, Microgaming may not
reverse
engineer,
modify,
decompile or disassemble
any
of the Mahjong System software.
3.2 Microgaming
shall pay all its own costs and expenses incurred in marketing,
promoting
and sub-licensing the Mahjong Games
to the Microgaming Operators.
4.
COMMENCEMENT AND
DURATION
This
Agreement shall
commerce on
the Effective Date
and
shall
continue
thereafter and
remain in
full
force unless terminated in accordance
with
the
provisions
of clause ll.
5. RECORDS
AND DATA
The party
stealI
keep or
cause
to be kept
Full,
up
to
date
and
accurate
records and
accounts
in relation to
its obligations
under
this Agreement. Each party
will allow the other party resasonableaccess
to
such
records and accounts
as may
be reasonably required
by
the
other
party
to
perform
all
of
its
obligations
under
this
Agreement
6. INTEGRATION
AND MAHJONG SERVICES
6.1 The
partite shall use
all
reasonable endeavours
to ensure
that
the
Mahjong
System interfaces with
Microgaming
System so as to enable the exchange
of
information between
the
respective systems
in
a
seamless and uninterrupted
manner
to
the
extent they relevant
for the purposes of
this
Agreement.
6.2 MSL
agrees to provide Microgaming with email
and
telephonic
technical support for the
Mahjong
System.
24 hours per day.
7
days
per
week.
6.3 MSL
will
ensure
that
Microgaming
has
real-time access to the Mahjong
systems back
office
data
which will
allow Microgaming to monitor all Winnings
and
Rake
generated
during
the
preceding sixty
(60)
days
and
which
will
allow
Microgaming to
calculate
the
number
of
players
from
Microgaming Operators
and
from
Operators who have played a
game
of
mahjong during
such sixty (60) day period.
7. CLEARING
HOUSE. FEES AND PAEWS
7.1 TheWinnings
of each game of mahjong shall be determined
and aggregated by
MSL on
a
monthly
basis
within 10
days
of the
end of each calandarmonth
in
respect of all
mahjong
gameplay
which
occurred during the previous calendar month. MSL will pay
the
Microgaming
Network
Rake
applicable for
such
Winnings,
less
the
MSL Fees.
into
the
Microgaming
Clearing
House,
without
deduction
or set-off
(apart from the
MSL
Fees), within
10
days of the end of eachcalendar
month
(the
"Payment Date").
7.2 The
Winnings less the Rake, shall be retained
by MSL for
all
games
in which
the winners
are from Operators and, for
all
games in
which
the
winners are from Microgaming
Operators,
shall be
paid
into
the Microgaming Clearing House, without deduction
or set-off, on a
monthly
basis
at the
same
time
as the
Microgaming Network
Rake {less the MSL Fees} is to be paid into the Microgaming
Clearing House
in
terms of clause
7.1
above.
7.3 At
the
same time that each monthly payment is made by MSL in
terms
of
clauses 7.1 and 7.2 MSL
will
provide Microgaming with a written statement
setting
out the total of
all
Winnings
Rake, Microgamirig Network
Rake
and
MSL Fees
generated
through gameplay which
occurred during the
calendar
month to which the
payment relates.
7.4 Micrgaming
shall be
entitled to appoint an independent auditor
to
audit
MSL's
accounts
and
records in order to verify that the
monthly Winnings and
Microgaming
Network Rake
paid
to
the
Microgaming Clearing House by MSL is correct. Microgaming shall furnish MSL
with
fourteen
(14) days written notice
of
such
an
audit.
Microgaming
undertakes
to make
payment
of the costs
of
the
auditor in the
event
of
no
errors being fraud
in
the
manner of calculation of
the
payments
made to the
Microgaming
Clearing
House.
In
the
event
of any
errors
being found
in
the
manner
of
calculation ofsuch
payment.
MSL
shall
pay for the auditor's costs.
7.5 The
MSL.
Fees payable by Microgaming are set out in schedule
A hereto.
7.6 In
consideration
for the
rights
granted and the services
provided
to Microgaming as set out in this Agreement, MSL will
invoice
Microgaming for the MSL Fee each
calendar
month
in
respect of
all
garneplay which occurred
during
the previous
calendar
month, such invoice
having
been already
settled
as part of the monthly
settlement
process.
8. INTELLECTUAL
PROPERTY RIGHTS
8.1 Microgaming
acknowledges that all Intellectual Property Rights to
and
in
respect
of the Mahjong System are
and
shall
remain
the
property of MSL.
8.2 Microgaming
shall promptly notify MSL of any actual,threatened
or suspected infringement of any of MSL's Intellectual Propert Rights in the
Mahjong System of which
Microgaming
becomes aware.
8.3 MSL
acknowledges that all Intellectual Property rights in,
to
and
in
respect
of
the
Microgaming
System
are shall remain
the
property.
of
Microgaming or its
licensors.
8.4 MSL
shall
promptly notify Microgaming of my actual,threatened
or suspected
infringement of any of Microgaming's lntellecutal Property Rights
in
the
Microgaming
System
of
which
MSL becomes aware.
9. CONFIDENTIALITY
9.1 Each
party
undertakes
to the other to keep secret and confidential all information (whether written,
pictorial, in machine
readable Form ororal)
andin
whatever form received
during
the
continuance of this Agreement or obtained as a result of entering into or
performing this Agreement comprising:
9.1.1 the
commercial terms of
this
Agreement;
9.1.2 information
concerning
Microgaming Operators or Microgaming Operators' players, or suppliers or
business associations of the other party; and
9.1.3 information
concerning the financial or commercial affairs of the other party.
all
of
which
shall be the "Confidential Information".
9.2 Each
party undertakes
to
the other
not to
use the Confidential
lnformation
of the
other
party except for the purposes of performing it obligations under
this
Agreement and
shall
not
(without the prior written consent of the other part ) disclaim the same
to
any
person
save to the extent necessary for the performance of this Agreement
and except
to
the
extent that such information:
92.1 is
required
to be disclosed by the law of any relevant jurisdiction;
9.2.2 is
already in the public domain at the time of disclosure or thereafter shall.
fall
into
the public domain other
than
as a
result of breach of this clause:
9.2.3 is
in
the
disclosing party's possession (as evidenced by written records) otherwise
than as a result of a breach
of
this clause;
9.2.4 becomes
known
to
the disclosing party
from
a
source
other
than another
party
to
this Agreement otherwise
than
as a
result of a breach of
this
clause;
or
9.2.5 was
disclosed after the express
prior written
approval
of
the
party
to
whom
such
informationn belongs.
9.3 Each
of the parties
undertakes to the other to take all
such
steps as shall from time
to
time be necessary to ensure compliance with the provision
of this clause
9
by its
employees,
agents
and sub-tractors.
9.4 Notwithstanding
anything
contained
elsewhere in
this
Agreement,
the provisions of
this
clause 9 shall survive the
termination
or expiry of
this
Agreement.
10. TERMINATION
10.1 Notwithstanding
any other
provision
contained herein, this Agreement may be terminated:
10.1.1 by
either
party forthwith on giving notice in
writing
to the other if:
| (i) |
the
other
commits a material or persistent breach of any term of this Agreement
and (in
the case of a breach capable
of
being remedied)
shall
have failed, within ten (10) days
after
the receipt of a request in
writing
from the other party sa to do, to
remedy the
breach; or
|
| (ii) |
the
other party
shall become
insolvent or
cease to
trade or
have a
receiver
or administrative receiver (or
the equivalent in any
jurisdiction)
appointed over
it or over any
part
of
its undertaking orassets
or shall pass
a resolution for
winding
up (otherwise than for the purpose of a bona fide
scheme of
solvent amalgamation or reconstruction) or a court
of competent
jurisdiction shall make
an order
to
that
effect or
if the other
party shall enter into any voluntary arrangement with its creditors
or
shah become
subject
to an administration order
(or
the equivalent in any
juuisdiction).
|
10.2 Either
party
may
terminate
this
Agreement
without cause
by
giving
the or
party
six
(6)
months written notice.
11. CONSEQUENCES
OF TERMINATION
11.1 Termination
or
expiry of this Agreement
howevercaused
shall
be without prejudice to any rights or liabilities
of the
parties accrued at
the
date
of
such termination or expiry,
All monies
owing by MSL to the Microgaming Clearing House will
become
immidiatley payable
to Microgaming and all MSL Fees
owing
by
Microgaming to MSL
will
become
immediately
payable
to MSL.
11.2 On
termination or
expiry
of
this
Agreement,
save as otherwise
expressly
provided
in
this
Agreement, all
rights
and obligationsof
the parties
under
this Agreement
shall
automatically terminate.
| 11.3 |
Each
party shall at its own
expense forthwith return to the other party or otherwise dispose
of as the
other party may instruct all promotional materials and
other documents and
property whatsoever
sent to it by the other party together with all copies
thereof.
|
12.
WARRANTY
| 12.1 |
MSL
and Microgaming
hereby warrant to each
other that they haveall
requisite power,
authority
and right to execute, deliver and perform their respective
obligations
under
this Agreement,
|
| 12.2 |
MSLand
Microgaming
hereby
warrant
to each other that their respective
obligations under
this Agreement will
be
carried out in aprofessional
manner using due care, skill and diligence.
|
13.
LIMITATION
OF LIABILIITY AND INDEMNIITY
| 13.1 |
Themaximum
extent of either party's liability
to the other,
whether in contract,
tort (including negligence)
or
howsoever
arising under or
in
relation
to this Agreement
or
the
performance
or non-performance of a party's obligation under this Agreement
shall not
exceed:
|
| 13.1.1 |
in respect
of payment liabilities under this Agreement,
those amounts as referred to in this Agreement;
and
|
| 13.1.2 |
in
any other respects US$200,000.
|
| 13.2 |
Neither
party shall, to the maximum extent permitted by law be liable to
the other
(in
contract.
tort (including negligence) or otherwise) for any indirect,
special
or
consequential
loss
or
damage,
or for any loss of profit, goodwill, business reputation
or
loss of opportunity arising out of or in relation to this Agreement
or
the performance or
non performance
of it even if the possibility of such arising had beenbrought
to the attention of the other
party.
|
| 13.3 |
Notwithstandingthe
provisions of clauses 13.1 and 13.2, nothing herein shall limit or
exclude
the liability of a party to the other for any personal injury or
death
caused by the
negligence
of a
party
or for any fraudulent
misrepresentation or fraud.
|
14.
INDEPENDENT
CONTRACTORS
Each
party
is
and
shall
remain
at
all
times
an
independent
contractor
and nothing
in
this
Agreement
shall be deemed to create a joint venture, partnership
or
agency
relationship
between the
parties. Neither
party has
the right
or
authority to
assume orto
create
any
obligation
or responsibility on behalf of
the
other.
15.
FORCE
MAJEURE
Neither
party shall be
liable to the
other
party for any breach or non-performance
of
its
obligations
under
this
Agreement
resulting
from causes beyond its reasonable
control (an "Event
of
Force Majeure") including, but not limited to, Acts
of
God, governmental act, war, fire, drought, lock out, strike. or civil commotion.
Each of the parties agrees to
notify
the other immediatley upon becoming aware of an
Event
of
Force
Majeure and to
use
all
reasonable endeavoursto overcomethe
circumstances affecting its
performance and to fulfill all outstanding
obligations as
soon
as practicable. Either party may terminate this Agreement if
the
other
party is prevented from performing its obligations because of an Event of Force
Majeure for more than thirty (30) consecutive days.
16.
NOTICES
All
notices shall be made in writing
and
sent by prepaid
registered post, by Facsimile or
delivered by hand or courier to the address of the recipient party set out
in this Agreement (or
to
such
other address as each
party
may
from time to time notify in
writing
to the other party). Any notice served by facsimile shall be deemed served
at
the time of transmission provided that a confirmatory receipt of transmission
has been made and provided
that
if
any such notice would otherwise he deemed
to
be
served
outside
working hours, such
notice shall be deemed to
be
served
at
the start
of
working hours on the next
working
day. Any notice served bypost
shall be deemed served two working
days after the
date
of posting and any notice delivered
by tsand or courier,
upon
delivery.
17. ENTIRE
AGREEMENT
This
Agreement
constitutes the entire
understanding
between the parties with respect
to the subject
matter
hereof and supersedes
all prior agreements, negotiations
and
discussions between
the parties relating
to it.
18. ASSIGNMENT
Neither
psrty may
assign or
transfer this
Agreement without the other party's
prior
written consent.
19. GENERAL
19.1 No
amendment. variation or
modification of
this
Agreement
shall beeffective
unless it is in writing and signed by a duly authorised representative
of each
party.
19.2 If
at any time any
provision
of this Agreementis
or
becomes invalid or
illegal in any respect, such provision shall be deemed to be severed
from this Agreement
but the
vailidity, legality
and
enforceability of the remaining provisions of this Agreement shall not be
affected or
impaired thereby.
19.3 The
Failure
of
a
party to exercise or
enforce
any right under this
Agreement
shall
not
be
deemed
to
be
a
waiver of that right nor operate
to
prevent
the exercise or
enforcement of
it
at
any
time
thereafter in relation to the same of any subsequent breach.
20. GOVERNING
LAW AND JURISDICTION
20.1 This
Agreement
shall be
governed by
and
construed
in
accordance
with the laws of
England
and Wales and the parties herein submit to
the
exclusive
jurisdiction of
the
English courts.
AS
WITNESS WHEREOF thehands
of
the
duly
authorised representatives
of the parties on the date First
before
written:
For
and behalf of MSL
| /s/ | /s/ | ||
|
Director |
Director/Company Secretary |
||
For
and
on behalf of Microgaming Software Systems Limited
| /s/ | /s/ | ||
|
Director |
Director/Company Secretary |
||
SCHEDULE
A
MSL Fees
1. The
MSL Fees
payable by Microgaming in terms of clauses 7.5 and 7.6 are subject to paragraph
2 below, *% of the Microgaming Fee.
2. Where
the
Microgaming Fee received from any Microgaming Operator in a calandar month
is or
greater than the MSL Fees in respect of each such operator
is calculated
in accordance witht the table below.
|
Monthly
Microgaming Fee Bracket (per Microgaming
Operator)
|
MSL
Fee as a percentage of Microgaming Fee in the corresponding
bracket
|
| $* up to and including $* |
|
| $* or more but less than $* |
*%
|
| $* or more but less than $* |
*%
|
| $* or more |
*%
|
|
*%
|
|
*
the
confidential portion has been so omitted and filed seperatley with the
Commission.
