EXHIBIT 10.13
JOINT VENTURE AGREEMENT
THIS JOINT VENTURE AGREEMENT (the "Agreement"), made and entered into
as of May 12, 2003, by and between Las Vegas From Xxxx.xxx Entertainment Inc., a
[British Columbia] corporation, having its offices at 1460 - 000 Xxxx Xxxxxxx
Xxxxxx, Xxxxxxxxx, X.X., X0X 0X0, Xxxxxx (hereinafter "Las Vegas") and WinWin,
Inc., a Nevada corporation, of 0000 Xxxxxxxxxx Xxxx Xx., Xxx Xxxxx, XX 00000
(hereinafter "WinWin").
WHEREAS, the parties hereto have agreed to enter into a joint venture
(the "Joint Venture"), pursuant to which the parties will operate an online
gaming site outside of the United States, and will not take xxxxxx from any
resident of the United States, or otherwise operate within the United States,
except to the extent such operations is in full compliance with US laws and
regulations.
WHEREAS, Las Vegas currently operates an online gaming site called
Tiger Gaming, which is located at xxx.xxxxxxxxxxx.xxx, and has proposed to
operate a similar site within the joint venture;
WHEREAS, WinWin's business purpose is to manage and operate lottery
operations in various countries throughout the world, and WinWin currently is
focusing its efforts on certain Asian countries, including without limitation,
Cambodia and China.
WHEREAS, the parties believe that WinWin is in a unique position to
promote and advertise the Joint Venture's gaming sites, and can generate
substantial numbers of new users to the site;
NOW THEREFORE, the parties, wishing to create a Joint Venture to
capitalize on WinWin's ability to generate customers and traffic, and Las Vegas'
ability to operate a first-class online gaming operation, hereby agree as
follows:
ARTICLE I
GENERAL PROVISIONS
1.01 Business Purpose. The business of the Joint Venture shall be
to design, develop and operate one or more first-class gaming
websites which will provide multiple on-line games that shall
include Lottery and traditional casino games (hereinafter
referred to as the "Gaming Site"). The Gaming Site shall serve
exclusively non-United States customers, and will offer online
poker games such as Texas Hold `em, Pai-Gow Poker, Big 2
Poker, and such other online games that the Joint Venture
determines will appeal to the Asian community and culture. The
Gaming Site shall be in the English language but shall have
multiple language options including Mandarin.
1.02 The Joint Venture shall not offer or permit any gaming
operations within the United States, or to residents of, or
persons located within, the United States, or any other
jurisdiction which does not permit online wagering (a
"Non-Permitted Jurisdiction"), and shall take such steps as
are required to prevent any operation which would subject the
Joint Venture to the jurisdiction, laws and regulations of the
United States. These measures will include software which
shall prevent calls from within the United States, or any
Non-Permitted Jurisdiction, from accessing the real online
gaming operations of the Gaming Site.
1.03 The Joint Venture shall undertake periodic audits to ensure
compliance with Section 1.02, and shall make such adjustments
to its systems and controls as are required to maintain strict
compliance with such business polcies.
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1.04 Term of the Agreement. This Joint Venture shall commence on
the date first above written and shall continue in existence
until terminated, liquidated, or dissolved by law or as
hereinafter provided.
1.05 Structure. The Joint Venture shall be structured as a newly
created limited liability company, to be formed under the laws
of the State of Nevada. Las Vegas shall own 4,900 membership
interests, and WinWin shall own 5,100 membership interests,
out of a total authorized capital of 10,000 membership
interests.
ARTICLE II
GENERAL DEFINITIONS
The following comprise the general definitions of terms utilized in
this Agreement:
2.01 Affiliate. An Affiliate of an entity is a person that,
directly or indirectly through one or more intermediaries,
controls, is controlled by or is under common control of such
entity.
2.02 Capital Contribution(s). The capital contribution to the Joint
Venture actually made by the parties, including property,
cash, services and any additional capital contributions made.
2.03 Profits and Losses. Any income or loss of the Joint Venture
for federal income tax purposes determined by the Joint
Venture 's fiscal year, including, without limitation, each
item of Joint Venture income, gain, loss or deduction.
ARTICLE III
OBLIGATIONS OF THE JOINT VENTURERS
3.01 Las Vegas Obligations. Las Vegas shall undertake each of the
following obligations, to the best of its ability, and shall
perform such obligations in good faith and in the best
interest of the Joint Venture at all times:
3.01.1 Until such time as the holders of a majority of the
outstanding membership interests of the Joint Venture
shall determine otherwise, Las Vegas shall have full,
exclusive and complete authority and discretion in
the management and control of the business of the
Joint Venture for the purposes herein stated and
shall make all decisions affecting the business of
the Joint Venture. At such, any action taken shall
constitute the act of, and serve to bind, the Joint
Venture. Las Vegas shall manage and control the
affairs of the Joint Venture to the best of its
ability and shall use its best efforts to carry out
the business of the Joint Venture. Las Vegas shall
have a fiduciary obligation to both the Joint Venture
and WinWin in the management and control of the Joint
Venture, and shall do so only in good faith, and in
the best interest of the Joint Venture.
Notwithstanding the foregoing, without the prior
written consent of the holders of a majority of the
outstanding membership interests of the Joint
Venture, the Joint Venture shall not, and Las Vegas
shall cause the Joint Venture to not:
3.01.1.1 Sell, transfer, alienate, hypothecate or in
any way encumber all, or substantially all,
of the assets of the Joint Venture, or those
assets of the Joint Venture that are
required or necessary to operate the
intended business of the Joint Venture as
set forth herein;
3.01.1.2 Incur any judgment or indebtedness for
borrowed money;
3.01.1.3 Incur any debt in excess of USD $20,000;
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3.01.1.4 Enter into any business or operation not
specifically described or contemplated
herein;
3.01.1.5 Issue any membership interest, or other
equity interest, in the Joint Venture, or
sell, create or issue any right to acquire
any such membership or other equity interest
in the Joint Venture, or any interest in the
profits or losses of the Joint Venture;
3.01.1.6 Declare bankruptcy, or seek the protection
of bankruptcy laws in the United States or
any other jurisdiction, or make an
assignment for the benefit of creditors, or
fail to pay the debts and obligations of the
Joint Venture as they shall come due;
3.01.1.7 Operate in any manner that is not in full
compliance in all respect with any
applicable rules, laws or regulations where
the failure to so comply would or could have
a material adverse effect on the business or
operations of the Joint Venture
3.01.1.8 Fail to provide such financial and other
information about the business and operation
of the Joint Venture as shall be requested
from the members of the Joint Venture from
time to time;
3.01.1.9 Fail to provide such information as shall be
required, from time to time, to (i) timely
and accurately file any required tax returns
or reports, and (ii) timely and accurately
create such financial statements as shall be
required by WinWin, including audited annual
financial statements, and quarterly
unaudited financial statements, required to
be filed by WinWin.
3.01.2 Las Vegas shall incur all of the costs associated
with the development, design, creation, and
implementation of the Gaming Site. The actual,
out-of-pocket cost shall be reimbursable by the Joint
Venture out of future revenues.
3.01.3 Las Vegas or its affiliated or associated company
shall be the Operator of the Gaming Site (the
""Gaming Site Operator"). The Gaming Site Operator
shall operate the Gaming Site on its system and shall
be responsible for the day to day operations of the
Gaming Site. The Gaming Site Operator shall not
receive a fee or any remuneration for operating the
Gaming Site.
3.01.4 Revenues that shall be generated from the Gaming Site
Operations shall be deposited into a bank account
that shall be controlled by the Gaming Site Operator
(the "Operator's Bank Account"). The Gaming Site
Operator shall provide to Win Win, on a daily basis,
reports of incoming and outgoing cash. All operating
expenses and costs shall be regularly paid out of the
Operator's Bank Account.
3.01.5 In the event that the Operator's Bank Account shall
not have sufficient funds to pay for the operating
costs and expenses, then the Gaming Site Operator
shall lend sufficient funds to pay for the operating
expenses and costs (the "Gaming Site Operator's
Loan"). The Gaming Site Operator's Loan shall bear
interest at the rate of 2% above the Bank of Montreal
prime rate, as published on the closest date such
report is available to May 15, 2003, and shall be
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adjusted in the event of a change in interest rate on
the 30th day of June each year. The Gaming Site
Operator's Loan shall not be due and payable prior to
the date which is five years from the date of each
advance under such loan, except as set forth in
Section 3.01.5 below. In no event shall any member of
the Joint Venture be personally liable to pay the
Gaming Site Operator's Loan, it being the intent of
the parties that such loan shall be paid if, and only
to the extent, that revenues from the Joint Venture
are sufficient to repay such loan.
3.01.6 Upon the Operator's Bank Account having sufficient
funds over and above funds required to pay for
operating expenses and costs, the Gaming Site
Operator's Loan plus the accrued interest shall be
repaid forthwith to the Gaming Site Operator.
3.01.7 If in the future Las Vegas or its affiliated or
associated company shall be unwilling to be the
operator of the Gaming Site, then the parties to this
Agreement shall by mutual consent designate a new
operator of the Gaming Site, and any compensation or
fees of such new operator shall be paid out of Las
Vegas' portion of the profits and losses of the Joint
Venture.
3.02 WinWin Obligations. WinWin shall undertake each of the
following obligations, to the best of its ability, and shall
perform such obligations in good faith and in the best
interest of the Joint Venture at all times:
3.02.1 Win Win shall assist Las Vegas in respect to the
development of the lottery games for the Gaming Site.
3.02.2 Win Win shall assist Las Vegas in respect to the
creative side of the development of the Gaming Site
which shall include but not be limited to the theme,
look and feel of the Gaming Site.
3.02.3 Win Win shall be responsible for the promotion and
marketing of the Gaming Site, which shall include but
not be limited to Win Win's contacts with CGTV and
Win Win's other lottery markets. WinWin shall not be
obligated to take any action that would constitute a
breach of any agreement to which WinWin, or any
affiliate of WinWin, is a party, or which WinWin
determines, in its sole and absolute discretion,
could harm or jeopardize any contract, relationship
or agreement of WinWin or any of its affiliates, or
which would or could offend, or be contrary to the
wishes of, any party, regulatory official,
government, government official or other party having
any influence on the management, operation,
regulation, permitting or licensing of any lottery,
gaming or other operation of which WinWin, or any
affiliate or partner of WinWin, is now, or could in
the future be expected, to be affiliated.
ARTICLE IV
ALLOCATIONS
4.01 Profits and Losses. Commencing on the date hereof and
ending on the termination of the business of the
Joint Venture, all profits, losses and other
allocations to the Joint Venture shall be allocated
49% to Las Vegas and 51% to WinWin at the conclusion
of each fiscal year.
4.02 All revenues of the Joint Venture are referred to
herein as "Gross Revenues". Upon receipt of Gross
Revenues, the Joint Venture shall pay all of its
expenses; provided, however, that the Joint Venture
shall not obligate itself to pay, and shall not pay,
any amount to WinWin or Las Vegas, or any of their
Affiliates, unless such payment or obligation is
approved in advance and in writing by both WinWin and
Las Vegas. After paying out all operating expenses
and costs of the Joint Venture (the "Net Revenues"),
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the Joint Venture shall pay the balance of any then
outstanding Gaming Site Operator's Loan, including
accrued interest. To the extent there are any Net
Revenues then remaining, the Gaming Site Operator
shall distribute, on a monthly basis, 35% of the
remaining Net Revenues to Win Win and 35% of the
remaining Net Revenues to Las Vegas. The remaining
30% of the remaining Net Revenues shall be retained
in the Operator's Bank Account as a Reserve (the
"Reserve Account"). Win Win and Las Vegas shall
mutually agree to maintain at all times a reasonable
Reserve Account, and any amounts over and above such
reasonable Reserve Account shall be distributed by
the Gaming Site Operator in the following manner: 51%
to Win Win and 49% to Las Vegas.
ARTICLE V
RIGHTS AND DUTIES OF THE JOINT VENTURERS
5.01 Right of First Refusal. The parties to the Joint-Venture
Agreement shall each have a reciprocal right of first refusal
in the event that either party (the "Selling Party") wishes to
sell its respective interest in the Joint Venture to a bona
fide third party. Each party (the "Remaining Party") shall
have 45 business days after written notice (as described
below) to acquire the interest of the Selling Party. Prior to
the sale of any membership interest in the Joint Venture to a
third party (other than an entity the beneficial owner of
which is the Selling Party), the Selling Party shall provide
written notice (the "Notice") of any offer to purchase such
membership interest to the Remaining Party, and shall describe
in as much detail as possible the terms and conditions
proposed by a bona-fide, third party purchaser. The Remaining
Party shall thereafter have 45 days from its receipt of such
Notice to provide the Selling Party with written acceptance of
its right to purchase such membership interest on the terms
and conditions set forth in the Notice. In the event the
Remaining Party shall exercise its right to purchase the
membership interest, then the Remaining Party shall complete
such purchase as set forth in the terms and conditions
contained in the Notice. If the Remaining Party shall not
provide written notice of its acceptance of the terms and
conditions contained in the Notice, then the Selling Party
shall have the right to sell its membership interests to the
bona-fide third party named in the Notice, for a period of
ninety (90) days, and only on the exact terms and conditions
set forth in the Notice. In the event such transaction does
not close within such ninety (90) day period, then the Selling
Party shall deliver a new Notice to the Remaining Party, who
shall again have the right to exercise its right of first
refusal as described herein.
5.02 Survival of Right of First Refusal. In the event the Selling
Party sells any membership interest, the right of first
refusal shall not expire with respect to any remaining
membership interest then held by the Selling Party, and also
shall remain in full force and effect as against the holder of
any membership interest sold by the Selling Party.
Accordingly, as a condition to the transfer of any membership
interest on the books and records of the Joint Venture, any
third party that agrees to acquire the interest of the Selling
Party shall first commit itself in writing to be obligated to
the Remaining Party in respect to the right of first refusal
provisions in this Section 5.
5.03 Audit Rights. The parties to this Agreement shall each have
the right, at its sole cost and expense, to examine and audit
the financial statements, books and records of the Joint
Venture. If such examination or audit discloses an
understatement, then all sums due shall be paid forthwith.
Should such examination or audit disclose an understatement
that is 10% or more, then all reasonable, direct,
out-of-pocket costs and expenses for the examination and audit
shall be reimbursed by the party that has made the
understatement to the party that has conducted the examination
and audit.
5.04 Win Win shall not directly or indirectly compete with the
business of Las Vegas in the operation of any website that
offers online card games; provided, however, that this
provision shall terminate upon the earliest to occur of the
following: (i) upon any default under this Agreement by Las
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Vegas, (ii) in one year in the event less than US$100,000 is
distributed to WinWin from Net Revenues during such year,
(iii) at the end of each calendar subsequent year in the event
less than US$200,000 is distributed to WinWin from Net
Revenues during such calendar year, and (iv) the date which is
one year following the termination of this Agreement.
5.05 Las Vegas shall not compete with WinWin, directly or
indirectly, in any on-line lottery operations.
5.06 The parties to this Agreement shall agree to act reasonably
and in good faith at all times.
5.07 From time to time after the execution of this Agreement, the
parties shall make, do, execute or cause or permit to be made,
done or executed all additional lawful acts, deeds, things,
devices and assurances in law as may be required to carry out
the true intention and to give full force and effect to this
Agreement.
ARTICLE VI
AGREEMENTS WITH THIRD PARTIES
AND WITH AFFILIATES OF THE JOINT VENTURERS
6.01 Validity of Transactions. Any party that is an Affiliate (an
"Affiliated Party") of a party to this agreement (an
"Affiliated Member") may be engaged to perform services for
the Joint Venture. The validity of any transaction, agreement
or payment involving the Joint Venture and any Affiliated
Party otherwise permitted by the terms of this Agreement shall
not be affected by reason of the relationship between them and
the Affiliated Member or the approval of said transactions,
agreement or payment; provided, however, that, unless the
agreement with such Affiliated Party is approved in writing by
the holders of a majority of the membership interests held by
parties that are not Affiliated Member as provided below, then
at the request of the member to the Joint Venture that is not
an Affiliated Member, the agreement with such Affiliated Party
shall be cancelled and of no force or effect, and the Joint
Venture shall not be liable for any payment with respect
thereto, and the Affiliated Member shall indemnify and hold
the Joint Venture harmless from and against any claim of the
Affiliated Party.
6.02 Prior to the Joint Venture entering into any agreement or
understanding with an Affiliated Party, the Affiliated Member
shall:
6.02.1 Provide a written disclosure of the full and complete
nature of any relationship between the Affiliated
Party and the Affiliated Member, including, without
limitation: any ownership relationship, any agreement
or understanding pursuant to which the Affiliated
Party will compensate the Affiliated Member for any
service, or pay a commission to the Affiliated Member
arising from the agreement between the Affiliated
Member and the Joint Venture, or any payment,
compensation or other transfer of assets or value
from the Affiliated Party to the Affiliated Member.
6.02.2 Confirm that the services or products to be provided
to the Joint Venture by the Affiliated Party will be
provided on terms that are at least as favorable to
the Joint Venture as could, or could be expected to,
be obtained from a third-party, non-affiliated
provider of such products or services, and that the
terms and conditions of the agreement between the
Affiliated Party and the Joint Venture are fair and
reasonable to the Joint Venture.
6.03 Other Business of the Parties to this Agreement. The
parties to this Agreement and their respective
Affiliates shall have interests in businesses other
than the Joint Venture business. The Joint Venture
shall not have the right to the income or proceeds
derived from such other business interests and, even
if they are competitive with the Joint Venture's
business, such business interests shall not be deemed
wrongful or improper unless expressly prohibited by
the terms of this Agreement.
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ARTICLE VII
PAYMENT OF EXPENSES
All expenses of the Joint Venture shall be paid by Las Vegas, and shall
be reimbursed by the Joint Venture as provided for above out of the cash flow of
the Joint Venture.
ARTICLE IX
DISSOLUTION AND TERMINATION
9.01 The Joint Venture shall be dissolved upon the happening of any
of the following events:
9.01.1 The written agreement between members of the Joint
Venture holding not less than eighty percent (80%) of
the voting membership interests of the Joint Venture.
ARTICLE X
CONFIDENTIALITY AND NON-SOLICITATION
10.01 Each of the parties hereto acknowledges that (a) during the
term of this Agreement, and as a part of the respective
obligations and status of each party hereto, each party will
be afforded access to Confidential Information; (b) public
disclosure of such Confidential Information could have an
adverse effect on the Joint Venture and its business; (c) each
of the parties has required that the other party make the
covenants in this Article X as a condition to its entering
into this Agreement; and (d) the provisions of this Article X
are reasonable and necessary to prevent the improper use or
disclosure of Confidential Information. For purposes of this
Article X, the term "CONFIDENTIAL INFORMATION" shall mean any
and all:
10.01.1 Trade secrets concerning the business and affairs of
the Joint Venture, data, know-how, graphs, drawings,
samples, inventions and ideas, customer lists,
current and anticipated customer requirements, price
lists, market studies, business plans, computer
software and programs (including object code and
source code), computer software and database
technologies, systems, structures, and architectures
(and related concepts, ideas, designs, methods and
information), and any other information, however
documented, that is a trade secret within the meaning
of California law; and
10.01.2 Information concerning the business and affairs of
the Joint Venture (which includes historical
financial statements, financial projections and
budgets, historical and projected sales, capital
spending budgets and plans, the names and backgrounds
of key personnel and personnel training and
techniques and materials), however documented; and
10.01.3 Notes, analysis, compilations, studies, summaries,
and other material prepared by or for the Joint
Venture containing or based, in whole or in part, on
any information included in the foregoing.
10.02 To induce the other party to enter into this Agreement and
perform its obligations hereunder, each party hereto covenants
as follows:
10.02.1 Confidentiality and Non-Disclosure.
10.02.1.1 During and following the term of this
Agreement, each of the parties will hold in
confidence the Confidential Information and
will not disclose it to any person except
with the specific prior written consent of
the Joint Venture and the other party, or
except as otherwise expressly permitted by
the terms of this Agreement.
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10.02.1.2 Any trade secrets of the Joint Venture will
be entitled to all of the protections and
benefits under California law and any other
applicable law. If any information that the
Joint Venture deems to be a trade secret is
found by a court of competent jurisdiction
not to be a trade secret for purposes of
this Agreement, such information will,
nevertheless, be considered Confidential
Information for purposes of this Agreement.
Each party hereby waives any requirement
that the Joint Venture submit proof of the
economic value of any trade secret or post a
bond or other security.
10.02.1.3 None of the foregoing obligations and
restrictions applies to any part of the
Confidential Information that either party
demonstrates was or became generally
available to the public other than as a
result of a disclosure by such party, or any
affiliate of such party.
10.02.1.4 Each party agrees that it will not remove
from the Joint Venture's premises (except as
otherwise specifically authorized by the
Joint Venture) any document, record,
notebook, plan, model, component, device, or
computer software or code, whether embodied
in a disk or in any other form
(collectively, the "Proprietary Items").
Each party recognizes that, as between the
Joint Venture and such party, all of the
Proprietary Items, whether or not developed
by such party, are the exclusive property of
the Joint Venture. Upon termination of this
Agreement by either party, or upon the
request of the Joint Venture during the term
of this Agreement, each party will return to
the Joint Venture all of the Proprietary
Items in such party's possession or subject
to such party's control, and such party
shall not retain any copies, abstracts,
sketches, or other physical embodiment of
any of the Proprietary Items.
10.02.2 Non-Solicitation.
10.02.2.1 Whether for a party's own account or for
the account of any other person, at any time
during the term of this Agreement, and for
two years thereafter, solicit business of
the same or similar type being carried on by
the Joint Venture, from any person known by
such party to be a customer of the Joint
Venture, whether or not such party had
personal contact with such person during and
by reason of services provided to the Joint
Venture or its status as an owner of the
Joint Venture.
10.02.2.2 Whether for a party's own account or the
account of any other person (i) at any time
during the term of this Agreement, and for
two years thereafter, solicit, employ, or
otherwise engage as an employee, independent
contractor, or otherwise, any person who is
or was an employee of the Joint Venture at
any time during the term of this Agreement,
and for two years thereafter, or in any
manner induce or attempt to induce any
employee of the Joint Venture to terminate
his employment with the Joint Venture; or
(ii) at any time the term of this Agreement,
and for two years thereafter, interfere with
the Joint Venture's relationship with any
person, including any person who at any time
during the term of this Agreement, and for
two years thereafter, was an employee,
contractor, supplier, or customer of the
Joint Venture.
10.02.3 At any time during the term of this
Agreement, and for ten years thereafter,
disparage the Joint Venture or any of its
members, equity-holders, partners,
directors, officers, employees, or agents.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
11.01 Books and Records. The Joint Venture shall keep adequate books
and records at its place of business, setting forth a true and
accurate account of all business transactions arising out of
and in connection with the conduct of the Joint Venture.
11.02 Expenses. Except as otherwise provided in this Agreement, each
party to this Agreement will bear its respective fees and
expenses incurred in connection with the preparation,
negotiation, execution and performance of this Agreement and
the transactions contemplated herein.
11.03 Waiver; Remedies Cumulative. The rights and remedies of the
parties to this Agreement are cumulative and not alternative.
Neither any failure nor any delay by any party in exercising
any right, power or privilege under this Agreement or any of
the documents referred to in this Agreement will operate as a
waiver of such right, power or privilege, and no single or
partial exercise of any such right, power or privilege will
preclude any other or further exercise of such right, power or
privilege or the exercise of any other right, power or
privilege. To the maximum extent permitted by applicable law,
(a) no claim or right arising out of this Agreement or any of
the documents referred to in this Agreement can be discharged
by one party, in whole or in part, by a waiver or renunciation
of the claim or right unless in writing signed by the other
party; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is
given; and (c) no notice to or demand on one party will be
deemed to be a waiver of any obligation of that party or of
the right of the party giving such notice or demand to take
further action without notice or demand as provided in this
Agreement or the documents referred to in this Agreement.
11.04 Entire Agreement and Modification. This Agreement supersedes
all prior agreements, whether written or oral, between the
parties with respect to its subject matter and constitutes a
complete and exclusive statement of the terms of the agreement
between the parties with respect to its subject matter. This
Agreement may not be amended, supplemented, or otherwise
modified except by a written agreement executed by the party
to be charged with the amendment.
11.05 Assignments, Successors and No Third-party Rights. No party
may assign any of its rights or delegate any of its
obligations under this Agreement without the prior written
consent of the other parties, except that either party may
assign any of its rights and delegate any of its obligations
under this Agreement to any wholly-owned subsidiary of such
party, or the parent company of such party, and may
collaterally assign its rights hereunder to any financial
institution providing financing in connection with the
transactions contemplated herein. Subject to the preceding
sentence, this Agreement will apply to, be binding in all
respects upon and inure to the benefit of the successors and
permitted assigns of the parties. Nothing expressed or
referred to in this Agreement will be construed to give any
person other than the parties to this Agreement any legal or
equitable right, remedy or claim under or with respect to this
Agreement or any provision of this Agreement, except such
rights as shall inure to a successor or permitted assignee
pursuant to this Section.
11.06 Severability. If any provision of this Agreement is held
invalid or unenforceable by any court of competent
jurisdiction, the other provisions of this Agreement will
remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree
will remain in full force and effect to the extent not held
invalid or unenforceable.
11.07 Construction. The headings of Articles and Sections in this
Agreement are provided for convenience only and will not
affect its construction or interpretation. All references to
"Articles" and "Sections" refer to the corresponding Articles
and Sections of this Agreement.
11.08 Time of Essence. With regard to all dates and time periods set
forth or referred to in this Agreement, time is of the
essence.
11.09 Notices. All notices, consents, waivers and other
communications required or permitted by this Agreement shall
be in writing and shall be deemed given to a party when (a)
delivered to the appropriate address by hand or by nationally
recognized overnight courier service (costs prepaid); (b) sent
by facsimile or e-mail with confirmation of transmission by
the transmitting equipment, so long as such facsimile or
e-mail is followed by a copy sent by mail; or (c) received or
rejected by the addressee, if sent by certified mail, return
receipt requested, in each case to addresses set forth above
(or to such other address as a party may designate by notice
to the other parties).
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11.10 Governing Law; Consent to Jurisdiction.
10.10.1 The interpretation and construction of this
Agreement, and all matters relating hereto, shall be
governed by the laws of the State of California
applicable to contracts made and to be performed
entirely within the State of California.
10.10.2 Any proceeding, action, litigation or claim (a
"Proceeding") arising out of or relating to this
Agreement or any of the transactions contemplated
herein may be brought in the courts of the State of
California, County of Los Angeles, or, if it has or
can acquire jurisdiction, in the United States
District Court for the Central District of
California, and each of the parties irrevocably
submits to the exclusive jurisdiction of each such
court in any such Proceeding, waives any objection it
may now or hereafter have to venue or to convenience
of forum, agrees that all claims in respect of the
Proceeding shall be heard and determined only in any
such court and agrees not to bring any Proceeding
arising out of or relating to this Agreement or any
of the transactions contemplated herein in any other
court. The parties agree that either or both of them
may file a copy of this paragraph with any court as
written evidence of the knowing, voluntary and
bargained agreement between the parties irrevocably
to waive any objections to venue or to convenience of
forum. Each party hereto hereby consents to process
being served in any such action or proceeding by the
mailing of a copy thereof to the address set forth
opposite its name below and agrees that such service
upon receipt shall constitute good and sufficient
service of process or notice thereof. Nothing in this
paragraph shall affect or eliminate any right to
serve process in any other manner permitted by law.
11.11 Waiver of Jury Trial. THE PARTIES HEREBY WAIVE ANY RIGHT TO
TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN,
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE
THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY
COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND
BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE
TRIAL BY JURY AND THAT ANY PROCEEDING WHATSOEVER BETWEEN THEM
RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY SHALL INSTEAD BE TRIED IN A COURT OF
COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
11.12 Execution of Agreement. This Agreement may be executed in one
or more counterparts, each of which will be deemed to be an
original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same
agreement. The exchange of copies of this Agreement and of
signature pages by facsimile transmission shall constitute
effective execution and delivery of this Agreement as to the
parties and may be used in lieu of the original Agreement for
all purposes. Signatures of the parties transmitted by
facsimile shall be deemed to be their original signatures for
all purposes.
11.13 Force Majeure. Neither party shall be liable in damages or
have the right to terminate this Agreement for any delay or
default in performing hereunder if such delay or default is
caused by conditions beyond its control including, but not
limited to Acts of God, Government restrictions (including the
denial or cancellation of any export or other necessary
license), wars, insurrections and/or any other cause beyond
the reasonable control of the party whose performance is
affected.
34
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
LAS VEGAS FROM XXXX.XXX ENTERTAINMENT, INC.
a British Columbia corporation
By:__________________________
Name:
Title:
WINWIN, INC.,
a Nevada corporation
By:__________________________
Name: Xxxxxxx Xxxxxx
Title: President
35
