EXHIBIT 10.7
SOFTWARE PURCHASE AGREEMENT
THIS SOFTWARE PURCHASE AGREEMENT ("Agreement") is made this 31 day of
August, 2001 by and between Intuicode, LLC, with offices located at 000 Xxxxxx
Xxxx Xxxxx 0000, Xxxx Xxxxx, Xxxxxxx 00000 ("Vendor") and iGames Entertainment,
Inc. with facilities located at 000 Xxxxxx Xxxx Xxxxx 0000, Xxxx Xxxxx, Xxxxxxx
00000 ("Customer") (collectively referred to as the "Parties").
W I T N E S S E T H
WHEREAS, Vendor is a Florida limited liability company formed for the purpose of
providing computer technology and services; and
WHEREAS, Customer is a Florida corporation and desires Vendor to provide
Customer with ownership of certain software, known as the "iGames Set Top Box",
for its own use and sale.
NOW, THEREFORE, Customer hereby agrees to purchase the software pursuant to the
following terms and conditions:
ARTICLE I: RECITALS AND DEFINITIONS
Section 1.01 -- Recitals: The above recitals and identification of parties are
true and correct.
Section 1.02 -- Definitions: The following definitions shall apply:
(1) Contract: The term "Contract" shall mean this Agreement.
(2) Software: The term "Software" shall mean the Vendor's program known as
the "iGames Set Top Box" in its current functionality and design.
(3) Trade Secrets: The term "Trade Secrets" shall mean trade secrets as
defined under Chapter 688 of the Florida Statutes and Section 757 of
the Restatement of Torts.
ARTICLE II: INTELLECTUAL PROPERTY
Section 2.01 -- Ownership and Title: Upon acceptance of the Software by the
Customer and payment of the sums set forth below in Article III hereof, Customer
shall have the outright ownership and benefit of the Software. Vendor agrees to
sign all applications, assignments, instruments and papers and perform all acts
necessary to transfer the Software fully and completely to Customer and to
enable Customer, its successors, assigns, licensees and nominees, to secure and
enjoy the full and exclusive benefits and advantages however nothing in this
paragraph shall supercede or act to alter the terms set forth in Section 5.01
hereof. In addition such transfer of rights from Vendor to Customer shall not
affect Vendor's continued right to its Revenue Share as set forth in Article III
hereof or for enforcement thereof.
Section 2.02 -- Copies: Customer shall have the right to make additional copies
of the Software and Documentation for back-up use. Vendor will not develop,
sell, or assign an instance or copy of the Software in the future to any party.
Section 2.03 -- Trade Secrets: Neither party hereto shall disclose Trade Secrets
without the prior written consent of the other party. The parties hereby
acknowledge and agree that the Trade Secrets derive independent economic value
(actual or potential) from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from their disclosure or use; are the subject of reasonable efforts under the
circumstances to maintain their secrecy; and are trade secrets as defined under
Chapter 688 of the Florida Statutes [ss.688.002(4)] and ss.757 of the
Restatement of Torts.
Section 2.04 -- Registration: Each party hereby agrees to cooperate with the
other party in securing or registering the rights of such party as set forth
under this Article II.
Section 2.05 -- Continuation: The terms and provisions of Section 2.04 shall
survive termination and cancellation of this Agreement.
ARTICLE III: PAYMENT
Section 3.01 -- Purchase Price: The Customer agrees to purchase from the Vendor
and the Vendor agrees to sell to the Customer the Software for the price of
US$10,000.00 (Ten Thousand United States Dollar). Vendor shall also receive a
fee for the sale, leasing, and/or licensing of the Software or services derived
from the use thereof by the Customer or related individual or entity, equal to
25% of the net profits derived therefrom (hereinafter the "Revenue Share"). Net
Profits herein shall be defined as monetary value of the compensation received
for the initial sales, leasing, and/or licensing or services provided by use of
the Software minus the costs associated with such sale, leasing, licensing or
providing of such services. Net Profits shall not be reduced for monies paid for
operations, research and development, officer salaries, or the accumulation of
assets by Customer other than as are reasonably necessary in the providing of
Software's intended services. Section 3.02 -- Payment: Payment to Vendor of the
Revenue Share shall be made within thirty (30) days of receipt of said revenue
by Customer.
ARTICLE IV: WARRANTY
Section 4.01 -- Development: Vendor represents and warrants that the programming
and source code used in the creation of the Software will not infringe upon and
be compliant with licensing requirements and copyrights for any non-original
Vendor developed programming and source code. Vendor also represents and
warrants that it did not program the Software to contain any back door, time
bomb, drop dead device, virus, Trojan horse, worm, or other software routine
designed to (a) disable any computer program automatically with the passage of
time or occurrence of any event or under the control of a person other than the
Customer; (b) permit unauthorized access by third parties due to embedded or
erroneous code; or (c) disable, erase or otherwise harm the Software or
Customer's data or hardware.
Section 4.02 - Good Faith/Record Keeping: The Customer warrants that it will act
in the utmost good faith with regard to the day-to-day operation, deployment,
sale/licensing/leasing, and providing of services derived from use of the
Software. The Customer also warrants that it will timely inform Vendor of all
transactions in the Software that would trigger a Revenue Share by Vendor and
this it will maintain accurate and timely books and records of all such
transactions and will make same available to Vendor for reasonable inspection
upon notice for the sole purpose of verifying the revenues which may result in
Revenue Share and calculation thereof. The Customer further warrants that it
will not transfer the Software or offer services derived therefrom other than
for monies in an amount equal to or greater than fair market value or in any
manner which could be construed as an attempt to circumvent Vendor's revenue
sharing hereunder.
Section 4.03 -- Indemnification: Vendor shall defend, indemnify, hold harmless
and release Customer against any damages or liability arising from or in
connection with a violation of the representations set forth in Section 4.02
above and any negligent or willful act by Customer causing damages to Vendor.
Customer shall defend, indemnify, hold harmless and release Vendor against any
damages or liability arising from or in connection with the use, sale,
licensing, and/or leasing of the Software or services derived therefrom which
infringes or violates a trademark, tradename, patent, law or regulation and for
any end user, licensor, purchaser, or lessor damages as a result of the use,
license, purchase, or lease of the Software other than as a result of violation
of the representations set forth in Section 4.01 above.
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT,
PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORSEEABLE,
BSED ON CLAIMS OF THE OTHER PARTY OR ITS CUSTOMERS (INCLUDING, BUT NOT LIMITED
TO, CLAIMS FOR LOSS OF DATA, STOPPAGE OR OTHER WORK OR IMPAIRMENT OF OTHER
ASSETS; OR LABOR CLAIMS), ARISING OUR OF BREACH OF EXPRESS OR IMPLIED WARRANTY,
BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR
TOERHWISE, EXCEPT ONLY IN THE CASE OF DEATH OR PERSONAL INJURY WHERE AND TO THE
EXTENT THAT APPLICABEL LAW REQUIRES SUCH LIABILITY. WITH THE EXCEPTION OF
INDEMNITY OBLIGATIONS SE FORTH IN THIS PAGREEMENT (WHICH ARE EXPRESSLY EXCLUDED
FROM THE LIMITATIONS SET OUT IN THIS CLAUSE); THE AGGREGATE LIABILITY OF EITHER
PARTY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE
AMOUNTS CONTEMPLATED BY AND PAID UNDER THIS AGREEMENT, WHICH IN ANY EVENT SHALL
NOT EXCEED $200,000.00.
This Section 4.03 shall survive termination of this Agreement.
ARTICLE V: MISCELLANEOUS
Section 5.01 -- Assignments: All assignments of rights under this Agreement by
Customer without the prior written consent of Vendor shall be void.
Section 5.02 -- Entire Agreement: This Agreement contains the entire
understanding of the Parties and supersedes previous verbal and written
agreements between the parties concerning maintenance, user support, consulting
services, development services and training services for the Software.
Section 5.03 -- Amendments and Modifications: Waivers, alterations,
modifications or amendments of a provision of this Agreement shall not be
binding unless such waiver, alteration, modification or amendment is in writing
and signed by an authorized representative of both parties.
Section 5.04 -- Severability: If a provision of this Agreement is rendered
invalid, the remaining provisions shall remain in full force and effect.
Section 5.05 -- Captions: The headings and captions of this Agreement are
inserted for reference convenience and do not define, limit or describe the
scope or intent of this Agreement or any particular section, paragraph, or
provision.
Section 5.06 -- Counterparts: This Agreement may be executed in multiple
counterparts, each of which shall be an original, but which together shall
constitute one and the same instrument.
Section 5.07 -- Governing Law: This Agreement is governed by the laws of the
State of Florida and venue shall be the courts of West Palm Beach, Florida.
Section 5.08 -- Notice: Notices shall be in writing and shall be deemed
delivered in person when delivered by courier or mailed postage prepaid by
Certified or Registered Mail -- Return Receipt Requested -- to the person and
address designated below. Notice shall be deemed given on the date of receipt --
as evidenced in the case of Certified or Registered Mail by Return Receipt.
Party Address
Intuicode, LLC. 000 Xxxxxx Xxxx Xxxxx 0000 Xxxx Xxxxx, XX 00000
IGames Entertainment, Inc. 000 Xxxxxx Xxxx Xxxxx 0000 Xxxx Xxxxx, XX 00000
Section 5.09 -- Pronouns/Gender: Pronouns and nouns shall refer to the
masculine, feminine, neuter, singular or plural as the context shall require.
Section 5.10 -- Bankruptcy: If either party must institute, defend, appear or
attend a bankruptcy proceeding as a result of the filing of bankruptcy by the
other party, fees and expenses shall be paid by the filing party. If either
party has a bankruptcy proceeding filed against it, the other party shall
recover attorney fees, expert witness fees, and other costs incurred by such
other party in connection with the bankruptcy proceeding, hearing or trial.
Section 5.11 -- Waiver: Waiver of breach of this Agreement shall not constitute
waiver of another breach. Failing to enforce a provision of this Agreement shall
not constitute a waiver or create an estoppel from enforcing such provision.
Section 5.12 -- Relationship of the Parties: It is agreed that the relationship
of the parties is primarily that of customer and vendor. Nothing herein shall be
construed as creating a partnership, an employment relationship, or an agency
relationship between the parties, or as authorizing either party to act as agent
for the other. Each party maintains its separate identity.
Section 5.13 -- Assurances: Each party hereby represents and warrants that all
representations, warranties, recitals, statements and information provided to
each other under this Agreement are true, correct and accurate as of the date of
this Agreement to the best of their knowledge.
Section 5.14 -- Litigation Expense: In the event of litigation or arbitration
arising out of this Agreement, each party shall pay its own costs and expenses
of litigation and arbitration (excluding fees and expenses of arbitrators and
administrative fees and expenses of arbitration).
Section 5.15 - Equitable Relief: The Parties acknowledge that the subject matter
of this Agreement is unique and that money damages may be inadequate and that
the non-breaching party shall be entitled to the equitable remedy of specific
performance of the obligations contemplated herein and/or injunctive relief.
Section 5.16 - Material: Time is of the essence. Each obligation of the parties
hereunder is material.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first written above.
Vendor: Customer:
Intuicode, LLC iGames Entertainment, Inc.
BY:__/s/Xxxx Rose_________________ BY:__/s/Xxxxxxx Rideman_________
Its:____CTO_______________________ Its:____CEO/Pres._______________
Date:__8/31/2001__ Date:__9/12/01__
