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EXHIBIT 6.3
WEBSITE SALE AND INTERNET CASINO ACCESS LICENSE AGREEMENT
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WEBSITE SALE AND
INTERNET CASINO ACCESS LICENSE AGREEMENT
This Website Sale and Internet Casino License Agreement ("Agreement") is entered
into as of this 4th day of June in the year of 1999, by and between Omicron
Technologies, Inc., a USA Corporation (the "Licensee") and GLOBAL INTERACTIVE,
LTD., a Nevis corporation (the "Licensor").
RECITALS
A. Licensor provides licensees with access through gateway routing pages on
the World Wide Web to an Internet casino website.
B. Licensor wishes to sell to Licensee a single Internet casino website
gateway which will direct Internet gamers entering through such gateway to
the Casino and license to Licensee the right to process Licensee's gateway
website customers activities through the Casino.
C. Licensee wishes to purchase from Licensor a single Internet casino website
gateway which will direct Internet gamers entering through such gateway to
the Casino and license from Licensor the right to process Licensee's
gateway website customers activities through the Casino.
AGREEMENT
In consideration of the foregoing and following terms, covenants, promises,
premises and conditions, and for other good and valuable consideration, the
sufficiency, adequacy and receipt of which are hereby acknowledged, the parties
hereby agree as follows:
1. Sale and License. Licensor hereby sells to Licensee the HTML source code to
an Internet website which points and routes persons "hitting" such website
through to the Casino. Such website is described in Exhibit B attached
hereto and incorporated herein by this reference. Further, Licensor hereby
licenses to Licensee the right to point and route customers of Licensee
accessing Licensee's website to the Casino, and the right to have Licensor
process such customers' transactions on the Casino, pursuant to the terms
of this Agreement and the Exhibits hereto.
2. Definitions. For purposes of this Agreement, the following terms shall have
the following meanings:
a. Casino. "Casino" shall mean the Internet casino web site to which
Licensee's gateway website will point and shall include the Internet
Casino games as chosen by Licensor.
b. Net Monthly Revenue. "Net Monthly Revenue" shall mean, for any given
calendar month, the total amount lost in the Casino by Licensee's
customers, less winnings by Licensee's customers.
c. Hardware. "Hardware" shall mean all the necessary computers, routers,
cabling, monitors, hard drives, back-up systems, and other equipment,
as determined by Licensor in its absolute discretion, that may be
required in order to properly store, distribute and run the Casino.
d. Downloadable Software. "Downloadable Software" shall mean the portion
of the Casino software that must be resident on a customer's computer
in order for the customer to access and play the Casino games.
Licensee shall also have access to sportsbook version of software,
adult version of software and JAVA games.
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e. Master CD. "Master CD" shall mean a compact disc containing a version
of the Downloadable Software.
f. Customer Information. "Customer Information" shall mean all data
collected and stored on Licensee's Customers, including, without
limitation, name, address, phone and fax number, e-mail address,
amounts wagered and frequency of wagering.
g. Confidential Information. "Confidential Information" shall mean
material in the possession of Licensor or its agents which is not
generally available to or used by others or the utility or value of
which is not generally known or recognized as a standard practice,
whether or not the underlying details are in the public domain.
h. Customers. "Customers" shall mean any Casino visitor that conducts any
financial transaction within the casino.
3. Indemnification.
a. Limitation on Indemnification. Except as otherwise provided herein,
Licensee acknowledges and agrees that neither Licensor nor its agents,
nor any of their respective members, shareholders, directors,
officers, employees or representatives (collectively the "Licensor
Parties") will be liable to the Licensee or any of the Licensee's
customers for any special, indirect, consequential, punitive or
exemplary damages, or damages for lost profits or savings, in
connection with this Agreement, its performance or breach. If despite
the foregoing limitations, any of the Licensor Parties should become
liable to Licensee or any other person (a "Claimant"), the maximum
aggregate liability of the Licensor Parties shall be limited to the
lesser of the actual amount of loss or damage suffered by Claimant or
the sum of Licensee's fees payable by the Licensee to Licensor within
the 6 months prior to the loss.
b. Activities of Licensee. Licensee shall indemnify, defend and hold
harmless, Licensor and its agents and all Licensor Parties (the
"Indemnified Parties") from and against all damages, losses, costs and
expenses (including actual legal fees and costs), fines and
liabilities incurred by or awarded against any of the Indemnified
Parties in connection with Licensee's activities under this Agreement,
including, without limitation, claims brought by a person using or
relying on any advice given or publication produced and distributed by
Licensee.
4. Disruptions.
a. Temporary Disruptions. Licensee acknowledges that from time to time,
as a result of Hardware failure, supplier failures, or acts of God,
the services provided under this Agreement may be temporarily
disrupted. Licensee acknowledges and agrees that neither Licensor, its
agents nor any Licensor Parties will be liable to Licensee or any of
Licensee's customers for any special, indirect, consequential,
punitive or exemplary damages, or damages for loss of profits or
savings, in connection with these temporary disruptions. If services
are temporarily disrupted for a period of 72 consecutive hours or
more, the fees covered in sections shall be 7(b) and 9(c) shall be
reduced on a pro rata basis.
b. Government Issues. Licensor shall not be held liable for any damages
of any kind which result from government legislation or policy.
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5. Conditions of License.
a. Ownership of Software. All right, title and interest in and to the
Casino software, and any copies thereof and all documentation, code
and logic, which describes and/or composes such software remains the
sole and exclusive property of Licensor or its agents, as the case may
be, pursuant to the terms of Licensor's agreement with its agents, if
any.
b. Force Majeur. Except as otherwise specifically provided herein,
Licensor and its agents shall not be responsible for failure of
performance of this Agreement due to causes beyond their control,
including, without limitation, work stoppages, fires, civil unrest,
riots, rebellions, acts of God and similar occurrences.
c. Casino Format. The Casino format shall remain standard as determined
in Licensor's sole discretion.
d. Non-Exclusive Agreement. Licensee acknowledges that this is a
non-exclusive agreement and that Licensor will sell World Wide Web
routing pages pointing to Licensor's Casino to as many other parties
as are willing to enter into a licensing agreement with Licensor.
6. Term and Termination.
a. Term. This Agreement shall commence and be deemed effective on the
date when fully executed (the "Effective Date"). This Agreement shall
remain in effect for a period of 3 years (the "Term") and shall be
automatically renewed indefinitely for additional 1 year terms unless
the Licensee or Licensor gives written notice of termination of this
Agreement to the non-terminating party at least 30 days prior to the
end of any then current term.
b. Failure to Pay Fees. Licensor may terminate this Agreement at any time
upon 10 days written notice if Licensee is more than 30 days in
arrears in paying any monthly fees or hosting fees due and owing to
Licensor after written demand for same.
c. Bankruptcy. Either party may terminate this Agreement at any time upon
10 days written notice if the other party is subject to a petition in
bankruptcy or ceases carrying on business for any reason for a period
of 180 days or more.
d. Termination for Breach. Licensee may terminate this Agreement at any
time upon 10 days notice if Licensor is materially in breach of this
Agreement for a period of more than 30 days. Licensor shall be allowed
to cure the breach during the notice period, thus pre-empting
Licensee's ability to terminate the Agreement in accordance with this
section.
e. Termination for Suit. Licensor may terminate this Agreement at any
time upon 30 days written notice if Licensor, or any Licensor Parties,
becomes the subject of third party civil or criminal litigation as a
result of Licensee's operations under this Agreement.
7. Remuneration.
a. One Time Fee. Licensee shall pay Licensor a one time, non-refundable
fee equal to the amount specified on Exhibit B hereto as the "Initial
Fee" in consideration of Licensor's consent to enter into this
Agreement.
b. Monthly Fee. Licensor shall retain a monthly fee based on a percentage
of Licensee's Net Monthly, Revenue, and paid in accordance with
Exhibit A of this Agreement, or $1,000 US,
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whichever is greater. These monthly fees shall commence on the first
full day of Casino operation. Payments shall be deducted by Licensor
from any Net Monthly Revenue otherwise due to Licensee.
c. Payment Timing. All monthly payments shall be delivered to Licensor no
later than 5 days after their due date.
8. Confidentiality. Licensee shall not disclose the Confidential Information
of Licensor to any third party without the prior written consent of
Licensor, nor shall Licensee disclose the terms or contents of this
Agreement to any third party who is not bound to maintain the
confidentiality between the parties.
9. Obligations of Licensor.
a. Hardware. Licensor shall supply and maintain the Hardware for
operation of the Casino at Licensor's expense. Hardware shall not
become the property of Licensee.
b. Office Space. Licensor shall supply the office space required to house
the Hardware at Licensor's expense.
c. Internet Connection and Monthly Hosting Fee. Licensor shall supply an
appropriate connection to the Internet with sufficient bandwidth to
properly operate the Casino. Licensee shall pay for all bandwidth
associated with the operation of the website gateway and the Casino,
including the downloading of the Casino software via the Internet.
Bandwidth shall be charged to the Licensee at a monthly rate of $550
US for the first 15 gigabytes of data transfer and 10 cents US for
each megabyte thereafter. Hosting fees shall commence on the date in
which the first wager is accepted and shall be deducted from revenues
otherwise owed to Licensee.
d. No Redundancy. Licensor shall not be required to maintain a redundant
site.
e. Repairs. Licensor shall make all reasonable efforts to repair and
correct any problems arising under Licensor's areas of responsibility
that may arise from time to time which would cause Licensor to be
unable to perform its obligations under this Agreement.
f. Location of Hardware. Any Hardware processing or accepting xxxxxx
shall be located only in places where Internet gaming may be operated
legally and which Licensor determines in its sole and absolute
discretion.
10. Operation of Software.
a. Access to Software. Licensor shall allow Licensee's customers to
download directly from the CPU the Downloadable Software necessary for
the Licensee's customers to play the games.
b. Master CD. Licensor shall supply Licensee with a Master CD containing
the Downloadable Software.
c. Additional Languages. As specified in Exhibit B, in addition to the
English language, Licensor may provide Licensee with up to seven
different language translations for the Casino web page. Licensor
shall be required to provide the software in the English language
only.
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d. Graphics Changes. Notwithstanding anything to the contrary in this
section, any changes to the graphics of the routing gateway website
requested by the Licensee shall be made only in the absolute
discretion of Licensor and charged to Licensee at then prevailing
market rates.
e. URL's. Licensee may operate the gateway website only on a single URL
with the name specified as the "Licensee URL Name" in Exhibit B.
f. Warranty. Licensor warrants that the Pseudo-random numbers used by the
software for purposes of choosing game outcomes and shuffling cards
are generated in an unbiased manner.
g. Overall Graphics. Graphics for the main Casino shall be determined by
and implemented at the expense of Licensor. Initial graphics for
Licensee's gateway website shall be determined by the Licensee at the
expense of the Licensor.
11. Financial Transactions.
a. Transaction Processing System. Licensor shall provide a transaction
processing system that will allow Licensee's customers to deposit
funds for use of the Games. Licensee's customers will be able to
deposit funds via the Internet through the use of Visa, Mastercard,
and any other credit card accepted by Licensor. Other methods of
payment, such as wire transfers, money orders, and Western Union may
be made available from time to time at Licensor's discretion. Licensee
shall pay any transaction fees (merchant account fees, bank fees, wire
fees, Western Union fees, express mail, etc.) and credit card
chargebacks, which shall be deducted from monthly revenues otherwise
owed to Licensee. Licensee shall have no ownership rights to the
processing system.
b. Funds Control. Licensor shall receive deposits of funds to be used by
Licensee's customers, directly from Licensee's customers or through
Licensor's merchant accounts. Licensee's customers will deposit such
funds with Licensor in a bank account to be designated by Licensor.
Licensor shall make payments and debits from this account in
accordance with Licensee's customers' wins/losses and pay any
appropriate revenues to Licensee pursuant to Exhibit A. Payment shall
be made to Licensee on the 30th day of each month for any bank
deposits received from the Casino's previous month of operation.
12. Technical Support. Licensor shall supply technical support for Licensee's
customers. Technical support offered via the telephone shall be in the
English language only. Licensor shall determine the number of technical
support people and the number of incoming telephone lines for technical
support in Licensor's absolute discretion.
13. Accounting.
a. Records. Licensor shall maintain records of all transactions and
xxxxxx placed in the Casino.
b. Information Requests. No fees are payable for regular accounting
information provided to Licensee for the purpose of calculating Net
Monthly Revenue.
c. Accounting Reports. Licensor shall provide daily accounting reports,
as defined by Licensor from time to time. The daily accounting reports
shall be delivered by World Wide Web, facsimile or e-mail.
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d. Use of Accounting Information. Licensor and its agents shall have the
right to use the accounting information for statistical and reporting
purposes provided that specific information about the Licensee is not
disclosed.
e. Archive Period. Licensor shall archive and maintain the accounting
information for a period of 1 year, after which time accounting
information older than 1 year may be destroyed by Licensor without
liability to Licensee or Licensee's customers.
14. Customer Data.
a. Database. Licensor shall maintain a database containing the Customer
Information.
b. Use of Customer Information. Licensor and its agents shall have the
right to utilize the Customer Information for statistical purposes
only provided that it does not conflict with Licensee's Casino
marketing.
15. The Games. Licensor and its agents shall determine the odds and betting
limits for the Casino from time to time in their sole discretion. Further,
Licensor shall determine the games available in the Casino from time to
time.
16. Marketing. Licensee shall be responsible for all marketing of the services
offered through the Casino. Licensee shall spend on a monthly basis, a
minimum of 15% of the previous month's Net Monthly Revenue on marketing and
promoting the Licensee's gateway website. Licensee agrees not to market
with the use of any unsolicited email (spam). Except as specified herein,
Licensor is not responsible for tracking or maintaining any records or data
with respect to marketing.
17. Distribution of Software. Licensee shall be responsible for distribution of
CDs containing the Downloadable Software, and Licensee shall not alter the
software contained on the Master CD or copies thereof in any way. Licensee
shall ensure that the packaging for the software, as well as any logo
printed on the compact disc, shall display all proprietary rights symbols
such as copyright and trademarks, as supplied by Licensor in the
approximate size and font as supplied to Licensee by Licensor.
18. Regulatory Issues. Licensor shall be solely responsible for determining the
jurisdictions in which it chooses to accept and/or to receive xxxxxx.
Licensee will not market the software to the citizens of St. Kitts or
Nevis, West Indies or any other jurisdiction specified by Licensor.
19. Web Site. Licensor shall construct and maintain the entire website where
the Downloadable Software is to be made available to Licensee's customers.
Licensor shall pay for the single Uniform Resource Locator ("URL") that is
required by Licensee to market the Casino.
20. Arbitration. Any controversy or claim arising out of or relating to this
agreement, or breach of this agreement, shall be settled by binding
arbitration, and judgment on the award rendered by the arbitrator may be
entered in any court having jurisdiction. There shall be 1 arbitrator,
mutually agreeable to the parties, or if the parties cannot agree on an
arbitrator, then one shall be appointed by a court of competent
jurisdiction. The losing party shall pay all the expenses of the
arbitration.
21. No Employment Contract. Except as specifically provided herein, nothing
contained in the Agreement shall be construed to constitute either party as
a partner, employee, or agent of the other, nor shall either party have any
authority to bind the other in any respect, it being intended that each
shall remain an independent contractor responsible for its own actions.
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22. Representation of Understanding. All parties and signatories to this
Agreement acknowledge and agree that the terms of this Agreement are
contractual and not mere recital, and all parties and signatories represent
and warrant that they have carefully read this Agreement, have fully
reviewed its provisions with their attorneys, know and understand its
contents and sign the same as their own free acts and deeds. It is
understood and agreed by all parties and signatories to this Agreement that
execution of this Agreement may affect rights and liabilities of
substantial extent and degree and with the full understanding of that fact,
they represent that the covenants provided for in this Agreement are in
their respective best interests.
23. Construction. This Agreement was drafted jointly by the parties and their
attorneys, and its provisions shall not be construed against either party.
24. Entire Agreement. This Agreement constitutes the entire agreement between
the parties and signatories and all prior and contemporaneous
conversations, negotiations, possible and alleged agreements, and
representations, covenants, and warranties, express or implied, oral or
written, with respect to the subject matter hereof, are waived, merged
herein and superseded hereby. There are no other agreements,
representations, covenants or warranties not set forth herein. The terms of
this Agreement may not be contradicted by evidence of any prior or
contemporaneous agreement. The parties further intend and agree that this
Agreement constitutes the complete and exclusive statement of its terms and
that no extrinsic evidence whatsoever may be introduced in any judicial or
arbitration proceeding, if any, involving this Agreement. No part of this
Agreement may be amended or modified in any way unless such amendment or
modification is expressed in a writing signed by all parties to this
Agreement.
25. Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original but all of which together shall
constitute one and the same instrument. When all of the parties and
signatories have executed any copy hereof, such execution shall constitute
the execution of this Agreement, whereupon it shall become effective.
26. Governing Law. The parties and signatories to this Agreement agree that all
questions respecting the execution, construction, interpretation or
enforcement of this Agreement, or the rights, obligations and liabilities
of the parties and signatories hereto, shall be determined in accordance
with the applicable provisions of the laws of the Country of St. Kitts,
West Indies.
27. Jurisdictional Consent. The parties hereto expressly and irrevocably
consent to the jurisdiction of the courts of the country of St. Kitts, West
Indies. Any action brought by or against either party in connection with
the performance, termination, or breach of this Agreement shall be brought
in courts of the country of St. Kitts, West Indies, and the parties hereby
agree that courts of the country of St. Kitts, West Indies shall be a
convenient and exclusive forum for the hearing of any such action.
28. Notices. All notices or other documents under this Agreement shall be in
writing and delivered personally or mailed by certified mail, postage
prepaid, addressed to the party being noticed at its last known address.
29. Non-waiver. The failure of any party to insist upon the prompt and punctual
performance of any term or condition in this Agreement, or the failure of
any party to exercise any right or remedy under the terms of this Agreement
on any one or more occasions shall not constitute a waiver of that or any
other term, condition, right, or remedy on that or any subsequent occasion,
unless otherwise expressly provided for herein.
30. Headings. Headings in this Agreement are for convenience only and shall not
be used to interpret or construe its provisions.
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31. Binding Effect. The provisions of this Agreement shall be binding upon and
inure to the benefit of each of the parties and their respective successors
and assigns. Nothing expressed or implied in this Agreement is intended, or
shall be construed, to confer upon or give any person, partnership, or
corporation, other than the parties, their successors and assigns, any
benefits, or rights under or by reason of this Agreement, except to the
extent of any contrary provision herein contained.
32. Authority. The parties hereto represent and warrant that they possess the
full and complete authority to covenant and agree as provided in this
Agreement and, if applicable, to release other parties and signatories as
provided herein. If any party hereto is a corporation, the signatory for
any such corporation represents and warrants that they possess the
authority and have been authorized by the corporation to enter into this
Agreement.
33. Attorneys Fees. Should it be necessary to institute any action to enforce
the terms of this Agreement, the parties hereby agree that the prevailing
party in any such action shall be entitled to recover its reasonable
attorneys' fees, which shall include all costs of litigation, including,
but not limited to court costs, filing fees, and expert witness fees.
Further, the attorney fees and costs include the costs for such items for
any appeals. This paragraph shall remain separate from any judgment entered
to enforce its terms and shall entitle the prevailing party to attorneys
fees and costs incurred in connection with post judgment collection and
enforcement efforts.
34. Severability. If any provision of this Agreement is held by a court to be
unenforceable or invalid for any reason, the remaining provisions of this
Agreement shall be unaffected by such holding. If the invalidation of any
such provision materially alters the agreement of the parties, then the
parties shall immediately adopt new provisions to replace those which were
declared invalid.
35. Time of Essence. Time is of the essence under this Agreement.
36. Exhibits Incorporated by Reference. All exhibits referred to herein are
incorporated by reference and are so incorporated for all purposes.
37. Assignment of this Agreement. Either party's interest in this Agreement
shall not be sold, assigned, pledged, encumbered, or transferred by that
party without the written consent of the other party.
IN WITNESS WHEREOF, the parties and signatories execute this Agreement on the
dates indicated.
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GLOBAL INTERACTIVE, LTD.:
Date: [ILLEGIBLE] BY: /s/ [ILLEGIBLE]
------------------- ----------------------------
LICENSEE:
Date: June 4, 1999 BY: /s/ [ILLEGIBLE]
------------------- ----------------------------
(President)
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EXHIBIT A
Licensor shall pay to Licensee the following percentage of the Net Monthly
Revenue, minus all applicable fees, on or before the 30th of each month for
revenues generated during the previous calendar month. If Licensee decides to
enter into multiple agreements with Licensor, all individual Net Monthly
Revenues from each agreement shall reflect one accumulative total.
NET MONTHLY REVENUE LICENSEE'S PERCENTAGE
------------------- ---------------------
> $0.00 to $500,000.00 USD 65%
> $500,000.00 to $1,000,000.00 USD 70%
> $1,000,000.00 USD or more 75%
Licensee Initials: /s/ BES
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EXHIBIT B
Initial Fee to be paid to Licensor by Licensee upon execution of this Agreement:
$ $50,000 US $50,000 upon signing of agreement
Casino web page to be translated into the following languages: Spanish, French,
Italian, German, Portuguese, Chinese, Japanese.
Licensee URL Name to be used as the URL for Licensee's gateway web page:
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Licensee Initials: /s/ BES
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