SOFTWARE LICENCE AND DEVELOPMENT AGREEMENT
Exhibit
4.9
|
SOFTWARE
LICENCE AND DEVELOPMENT
AGREEMENT
|
1
CONTENTS
ClausePage
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1.
|
DEFINITIONS
|
1
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2.
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LICENCE
|
7
|
|
3.
|
INTEGRATION
AND MAINTENANCE
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8
|
|
4.
|
DEVELOPER'S
OTHER OBLIGATIONS
|
10
|
|
5.
|
WARRANTIES
AND INDEMNITY
|
11
|
|
6.
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LIMITATION
OF LIABILITY
|
13
|
|
7.
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INTELLECTUAL
PROPERTY RIGHTS
|
13
|
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8.
|
LICENCE
FEE AND REVENUE SHARE
|
14
|
|
9.
|
AUDIT
RIGHTS
|
16
|
|
10.
|
CESSATION
|
17
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|
11.
|
TERM
AND XXXXXXXXXXX
|
00
|
|
00.
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CONSEQUENCES
OF TERMINATION
|
19
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|
13.
|
CONFIDENTIALITY
|
19
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|
14.
|
ENTIRE
AGREEMENT
|
20
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15.
|
WAIVER
|
20
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|
16.
|
SEVERANCE
|
20
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17.
|
FURTHER
ASSURANCE
|
21
|
|
18.
|
NOTICES
|
21
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|
19.
|
AMENDMENT
|
22
|
|
20.
|
SET
OFF
|
22
|
|
21.
|
GOVERNING
LAW AND JURISDICTION
|
22
|
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22.
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THIRD
PARTY RIGHTS
|
23
|
|
23.
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NO
PARTNERSHIP
|
23
|
|
24.
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PERPETUITY
PERIOD
|
23
|
|
25.
|
ASSIGNMENT
|
23
|
| SCHEDULE 1 SPECIFICATION | 24 | |
| SCHEDULE 2 PHASE I HOSTING SERVICES | 25 | |
| SCHEDULE 3 SUPPORT SERVICE LEVEL AGREEMENT |
26
|
|
2
Agreement
made __________________________
Between
| (1) |
Mahjong
|
|
(2)
|
LADBROKES
INTERNATIONAL LIMITED,
a
company registered in Gibraltar and with its registered office at
00-00
Xxxx Xxxx Xxxx, Xxxxxxxxx ("Ladbrokes").
|
RECITALS:
A. Ladbrokes
provides (inter alia) betting and gaming services ("Ladbrokes
Services")
via
the Ladbrokes Site (as defined below).
B. Developer
(inter alia) develops software based gaming products and the Developer and/or
companies within the Developer's Group currently own all the Intellectual
Property Rights (as defined below) in the Game (as defined below).
|
C.
|
This
Agreement sets out the terms agreed between Ladbrokes and Developer
for
Developer to provide Ladbrokes with a non-exclusive, worldwide licence
to
exploit the Game on the terms set out herein.
|
IT
IS AGREED AS FOLLOWS:
|
1.
|
definitions
|
|
1.1
|
In
this Agreement (except where the context otherwise requires) the
following
words shall have the following meanings:
|
|
"Acceptance
Tests"
|
the
tests to be carried out by Ladbrokes for the purposes of demonstrating
that the Game functions in accordance with the Specification;
|
|
"Business
Day"
|
any
day which is not a Saturday, a Sunday or a bank or public holiday
in
England;
|
|
"Customer"
|
any
person who is a registered customer of the Ladbrokes Site;
|
|
"Customer
Data"
|
any
and all information or data relating to a Customer (including any
personal
data (as defined in the Data Protection Act 1998) relating to such
Customer), including the Customers' account number, name, address,
telephone number, email address or any other personal or demographic
information including any financial, credit, banking, betting or
payment
related information;
|
3
|
"Customisations"
|
Ladbrokes
Specific Customisations and Developer Customisations;
|
|
"Developer
Customisations"
|
improvements,
modifications, refinements, upgrades, updates or enhancements to
the Game,
including those resulting in new features, processes, functions,
services
or performance metrics, in any form or medium whatsoever, which is
developed by Developer not specifically for Ladbrokes and/or other
than at
the request of Ladbrokes;
|
|
"Documentation"
|
user
guides (including those in electronic form), handbooks and all other
material required for the operation of the Game;
|
|
"Game"
|
the
software game currently entitled "Mahjong" (and
any Customisations thereof);
|
|
"Go
Live Date"
|
the
date on which the Game is first made available for use by Customers
on the
Ladbrokes Site;
|
|
"Group"
|
in
respect of any party, its ultimate holding company from time to time
and
all subsidiaries of such holding company from time to time, as such
expressions are defined in Section 736 of the Companies Xxx
0000;
|
|
"Hosting
Services"
|
the
hosting services to be provided by the Developer to Ladbrokes as
set out
in schedule 2;
|
|
"Intellectual
Property"
|
patents,
trade marks, service marks design rights, trade or business names,
copyright (including rights in computer software), moral rights,
database
rights, format rights and topography rights (whether or not any of
these
is or are registered and including applications for registration),
know-how, trade secrets and rights of confidence and all rights and
forms
of protection throughout the world of a similar nature or with similar
effect to any of these for the full unexpired period of any such
rights
and any extensions and/or renewals thereof;
|
4
|
"Intellectual
Property Rights"
|
rights
to all existing and future Intellectual Property;
|
|
"Kahnawake
Server"
|
the
Developer's server located in Kahnawake, Quebec, Canada;
|
|
"Ladbrokes
Float Contribution"
|
Means
the monies held by the Developer on trust for Ladbrokes pursuant
to
clauses 8.2 to 8.4 (inclusive) as such amount increases or decreases
from
time to time during the Term including, without limitation, pursuant
to
the payment of tournament fees and the placing of stakes by and/or
the
accruing of winnings to Ladbrokes Customers through use of the
Game;
|
|
"Ladbrokes
Indemnified Party"
|
each
of Ladbrokes and any company within Ladbrokes' Group and each of
the
directors, officers and agents of Ladbrokes and any company within
Ladbrokes' Group;
|
|
"Ladbrokes
Servers"
|
the
servers hosted by Ladbrokes;
|
|
"Ladbrokes
Site"
|
any
and all internet website(s) owned and/or operated by or on behalf
of
Ladbrokes or any company within Ladbrokes' Group, including that
website
which currently has the URL xxx.xxxxxxxxx.xxx,
or any other URL with which Ladbrokes replaces this URL on which
Ladbrokes
chooses to make the Product Interface available and any 'white label'
sites on which Ladbrokes (or any company within Ladbrokes' Group)
may make
available the Product Interface from time to time;
|
5
|
"Ladbrokes
Specific Customisations"
|
Any
improvements, modifications, refinements, upgrades, updates or
enhancements (which may include the incorporation of materials in
which
Ladbrokes' Intellectual Property Rights subsist):
(i) to
the graphics and look and feel of the Product Interface of the Game
provided to Ladbrokes by Developer in order to include the incorporation
of materials in which Ladbrokes' Intellectual Property Rights subsist;
and
(ii) subject
to prior written agreement in a statement of work, to the Game and/or
the
Product Interface which result in new features, processes, functions,
services or performance metrics, in any form or medium whatsoever;
|
|
"Ladbrokes
System"
|
the
elements of the Ladbrokes Site or otherwise which facilitate the
making
available of the Product Interface to Customers including the software
engine, customer database and transaction systems owned, operated
and/or
licensed to Ladbrokes or any company within Ladbrokes' Group and
located
on servers owned or controlled by or on behalf of Ladbrokes and used
for
the operation of the Ladbrokes Site, which includes all computer
programs,
software or other works of ownership or materials provided by any
company
within Ladbrokes' Group or their licensors in order to operate the
Product
Interface on the Ladbrokes Site but which shall not include the elements
licensed hereunder;
|
|
"Licence"
|
the
licence set out in Clause 2.1;
|
|
"Material Fault"
|
a
complete or partial failure or function degradation of any part of
the
Game (and/or its integration with the Ladbrokes System), which constitutes
material non-compliance with the Specification and/or which materially
impacts on a Customer's experience of the Game;
|
|
"Minor
Fault"
|
A
failure or function degradation of any part of Game (and/or its
integration with the Ladbrokes System), that is not a Material Fault
and
which constitutes non-compliance with the Specification and/or which
impacts on a Customer's experience of the Game;
|
6
|
"Net
Rake"
|
in
any calendar month during the Term means Rake less all of the following:
(i) one per cent of Rake or such other percentage as notified to
the
Developer as an allowance in respect of monies paid in the form of
betting
duties or taxes (or reasonable provisions in respect thereof) or
other
statutory deductions or payments to licensing authorities; (ii) five
per
cent of Rake as an allowance in respect of charges levied by electronic
payment or credit card organisations; (iii) two per cent of Rake
as an
allowance in respect of transactions which are reversed by instruction
from the card-holder's bank (commonly referred to as charge-backs);
(iv)
two per cent of Rake as an allowance in respect of the cost of 'free
bets'
or 'free chips' provided to Customers as a promotional or marketing
activity where any company within Ladbrokes' Group is able to attribute
and apportion such costs to individual Customers; and (v) five per
cent of
Rake as an allowance in respect of Third Party Royalties;
|
|
"Phase
I"
|
the
period from the commencement of this Agreement until such time as
Developer installs the Products on Ladbrokes System pursuant to Clause
3.3;
|
|
"Phase
II"
|
the
period from completion of Phase I until termination or expiry of
this
Agreement;
|
|
"Product
Interface"
|
shall
comprise the Game, and the Documentation, to the extent that the
same are
to be made available to Customers on the Ladbrokes Site;
|
|
"Products"
|
shall
comprise the Game and the Documentation;
|
|
"Rake"
|
Means,
in any calendar month,a percentage (ten percent as at the date of
this
Agreement) of:
(i) all
winnings divided by the total number of players and then multiplied
by the
number of Ladbrokes Customers playing the Game; and
(ii)
all
tournament fees paid by Ladbrokes Customers.
|
|
"Specification"
|
the
technical specification for the Game as set out in the
Schedule;
|
|
"Support
Services"
|
Means
the Support Services to be provided by the Developer to Ladbrokes
in
accordance with schedule 3;
|
|
"Term"
|
shall
have the meaning set out in Clause 11;
|
|
"Third
Party Royalty"
|
(i)
any royalty or revenue share or other charge which a company within
Ladbrokes' Group must pay to a third party in order to lawfully exploit
any technology or other product used from time to time on the Ladbrokes
Site for the purpose of making available the Product Interface on
the
Ladbrokes' Site; and/or (ii) any royalty or revenue share or other
charge
which Ladbrokes and/or a company within Ladbrokes' Group must pay
to a
third party in respect of: (a) the registration of any new Customer;
and/or (b) any bets placed by any Customer in the course of using
the
Product Interface; and
|
|
"Virus"
|
shall
include any computer code which would disable, disrupt, harm, impede
or
modify the performance or functionality of all or any part of the
Ladbrokes System, the Ladbrokes Site, the Product, or any other system,
program, equipment, network or data.
|
7
| 1.2 |
In
this Agreement (except where the context otherwise requires):
|
| 1.2.1 |
any
reference to a Recital, Clause or Schedule is to the relevant recital,
clause or schedule of or to this Agreement and any reference to a
sub-clause or paragraph is to the relevant sub-clause or paragraph
of the
clause or schedule in which it appears;
|
| 1.2.2 |
the
table of contents and clause headings are included for convenience
only
and shall not affect the interpretation of this Agreement;
|
| 1.2.3 |
use
of any gender includes the other genders;
|
| 1.2.4 |
any
reference to "persons" includes natural persons, firms, partnerships,
companies, corporations, associations, organisations, governments,
states,
governmental or state agencies, foundations and trusts (in each case
whether or not having separate legal personality and irrespective
of the
jurisdiction in or under the law of which it was incorporated or
exists);
|
|
1.2.5
|
a
reference to "writing" does not include
email;
|
|
1.2.6
|
a
reference to a statute or statutory provision is a reference to that
statute or statutory provision and to all orders, regulations, instruments
or other subordinate legislation made under the relevant
statute;
|
|
1.2.7
|
any
reference to a statute, statutory provision, subordinate legislation,
code
or guideline ("legislation")
is a reference to such legislation as amended and in force from time
to
time and to any legislation which re-enacts or consolidates (with
or
without modification) any such legislation;
and
|
| 1.2.8 |
any
phrase introduced by the terms "including", "include", "in particular"
or
any similar expression shall be construed as illustrative and shall
not
limit the sense of the words preceding those terms.
|
|
1.3
|
The
schedule(s) form an integral part of this Agreement and shall have
effect
as if set out in full in the body of this Agreement and any reference
to
this Agreement includes the
schedule(s).
|
|
2.
|
LICENCE
|
|
2.1
|
Developer
hereby grants to Ladbrokes, a non-exclusive, worldwide licence
of
the Products (less any Ladbrokes Specific Customisations which Ladbrokes
shall own in accordance with Clause 7.1.2)
and the Intellectual Property Rights contained therein, for the duration
of the Term, in particular so that Ladbrokes can make available the
Product Interface for use by Customers on the Ladbrokes Site and
can alter
the same in accordance with the
terms hereof and promote (in any way whatsoever) the availability
of the
Product Interface on the Ladbrokes
Site.
|
8
|
2.2
|
Ladbrokes
shall have the right to assign and/or sub-license its rights granted
hereunder to any company within Ladbrokes' Group, subject to the
same
terms and conditions as set out in this Agreement and to remaining
primarily liable for its obligations hereunder.
|
|
2.3
|
Ladbrokes
shall have the right to assign and/or sub-licence the rights granted
in
Clause 2.1
for the purpose of making available the Product Interface and promoting
the same on 'white labels' of the Ladbrokes Site and shall give the
Developer reasonable prior notice of such assignments and/or sub-licences.
|
|
2.4
|
The
parties acknowledge and agree that Ladbrokes may restrict the availability
of the Product Interface (or any part thereof) to certain Customers
in
certain territories immediately without notice if Ladbrokes is satisfied
in its reasonable judgment that any regulatory and/or legal environment
in
any applicable territory or any actual or proposed changes thereto
will
expose it to the risk of legal, regulatory or economic sanctions,
in such
territory should the Product Interface (or any part thereof) continue
to
be provided to such Customers.
|
|
2.5
|
The
parties shall each appoint one or more of its representatives, to
be the
primary point of contact with the other and for organising meetings
and/or
discussions for the purpose of reviewing both parties' obligations
and
generally to identify, discuss and resolve any matters relevant to
this
Agreement.
|
|
3.
|
INTEGRATION
AND MAINTENANCE
|
|
3.1
|
As
soon as reasonably practicable after the date hereof, Developer shall
install the Products on the Kahnawake Server and maintain the Products
on
the Kahnawake Server throughout Phase I.
|
|
3.2
|
Ladbrokes
shall, a reasonable period before the commencement of Phase II and
subject
to the obligations of confidentiality set out in Clause 13,
provide Developer with its reasonable assistance and information
in
Ladbrokes' knowledge, possession, or control (subject to availability
and
any confidentiality restrictions imposed by a third party) that Developer
reasonably requires to supply, install and maintain the Products
(or any
part thereof) on the Ladbrokes System pursuant to this
Agreement.
|
|
3.3
|
Ladbrokes
at any time and in its sole discretion shall be entitled to give
notice to
Developer to install the Products on the Ladbrokes System and commence
Phase II. Developer shall, as soon as reasonably practicable after
receipt
of such notice install the Products on the Ladbrokes Servers, integrate
and configure the Products with the Ladbrokes System in accordance
with
the terms hereof and any instructions from Ladbrokes from time to
time
("Integration
Services").
In
the event that no such notice is given to the Developer to commence
Phase
II, the provisions relating to Phase I shall continue to apply until
such
notice is given or until the expiry or earlier termination of this
Agreement, whichever is earlier.
|
|
3.4
|
Ladbrokes
shall provide the Developer with reasonable access to Ladbrokes'
premises
and facilities necessary for Developer to supply, install and maintain
the
Products (or any part thereof) on the Ladbrokes System pursuant to
this
Agreement.
|
9
|
3.5
|
Developer
shall maintain the Products and provide the Support Services during
Phase
I and Phase II, and shall use best endeavours to ensure that at all
times
that the Game is made available on the Ladbrokes Site by Ladbrokes
it is
fully operational and free from Minor Faults and Material
Faults.
|
|
3.6
|
Developer
agrees to liaise and co-operate in all respects with Ladbrokes and
its
employees and/or personnel in relation to the Integration
Services.
|
|
3.7
|
Developer
shall notify Ladbrokes in writing once Developer has complied with
its
obligations under Clauses 3.1
and 3.3
in
respect of the Game and any necessary Documentation. Following delivery
of
such notice in writing by Developer to Ladbrokes, Ladbrokes shall
carry
out the Acceptance Tests with respect to the Game; the form and content
of
which shall be set by Ladbrokes.
|
| 3.7.1 |
For
the performance of the Acceptance Tests once the Game has been installed
on the Kahnawake Server, Developer shall grant remote access to Ladbrokes
to the Game on the Kahnawake Server to carry out such Acceptance
Tests.
|
| 3.7.2 |
For
the performance of Acceptance Tests once the Game has been installed
on
the Ladbrokes System, Developer shall attend the carrying out of
such
Acceptance Tests.
|
Developer
shall provide all reasonable assistance to Ladbrokes in connection with the
Acceptance Testing. If Ladbrokes discovers any Material Fault during the
performance of the Acceptance Tests or otherwise during the Term, Ladbrokes
shall deliver a written notice to Developer setting out in reasonable detail
such Material Fault ("Fault
Notice").
Developer, at its own expense, shall use best commercial endeavours to correct
such Material Fault within twelve (12) hours following delivery of the Fault
Notice. Once Developer notifies Ladbrokes in writing that the Material Fault
set
out in the relevant Fault Notice has been corrected, Ladbrokes may carry out
repeat Acceptance Tests on the same terms and conditions until the Game
functions in accordance with any relevant Specification and without any Material
Fault.
The
parties agree and acknowledge that this Clause 3.7
shall
also apply in the event that Developer creates new versions of, or modifies
(including by way of Developer Customisation or a Ladbrokes Specific
Customisation created by the Developer) the Game.
|
3.8
|
At
Ladbrokes' option, Ladbrokes may require Developer to convert the
customer
interface of the Product Interface (or any part thereof) into languages
other than English for use in a version of such Product Interface
to be
made available to certain Customers.
|
|
3.9
|
Developer
shall, at its own cost, provide all other reasonable assistance and
support and maintenance services in respect of the Products as may
be
required by Ladbrokes from time to
time.
|
|
3.10
|
In
respect of the development, delivery, installation, maintenance,
modification or correction of the Products (or any part thereof),
time
shall be of the essence of this Agreement, as regards any time, date
or
period specified in this Agreement or any time, date or period
subsequently substituted by agreement in writing between the
parties.
|
10
|
3.11
|
Developer
shall deliver a copy of the Game and all associated Documentation
to
Ladbrokes on a CD-ROM (or other media agreed between the parties
from time
to time) as and when the Integration Services are performed by Developer
in respect of the Game in accordance with this Clause 3
during Phase II.
|
|
3.12
|
Developer
shall deliver such copy referred to in Clause 3.11
and perform the Integration Services with respect to the Game.
|
|
3.13
|
Prior
to the commencement of Phase II, at Ladbrokes sole discretion the
Developer shall enter into a tripartite source code escrow agreement
with
the National Computer Council ("NCC")
and Ladbrokes in respect of the source code to the Products (including
for
the avoidance of doubt source code relating to Ladbrokes Specific
Customisations and the Integration Services) substantially in the
form of
the NCC escrow terms ("Escrow
Agreement")
and Ladbrokes shall procure that NCC shall enter into the Escrow
Agreement
and the Developer shall ensure that any source code deposited pursuant
to
the Escrow Agreement is complete and fully
documented,
|
| 3.13.1 |
The
Developer shall ensure that all developments, new versions, upgrades,
bug
fixes, enhancements, modifications and documentation have been and
will in
the future be placed in escrow as often as is reasonably required
by
Ladbrokes.
|
3.13.2 All
costs
in relation to the Escrow Agreement shall be borne by Ladbrokes.
| 4. |
DEVELOPER'S OTHER
OBLIGATIONS
|
|
4.1
|
Developer
shall:
|
| 4.1.1 |
perform
its obligations under this Agreement using all due skill and care
and in
accordance with the highest professional industry standards applicable
from time to time;
|
| 4.1.2 |
ensure
that all of its personnel engaged hereunder shall have the necessary
skills, expertise and diligence to undertake such work and shall
conform
to such standards referred to in Clause 4.1.1;
|
| 4.1.3 |
ensure
that the Products developed and/or provided to Ladbrokes are compatible
with the Ladbrokes System;
|
| 4.1.4 |
ensure
that the Products and other systems or equipment provided by Developer
to
Ladbrokes shall be correctly installed and configured in accordance
with
this Agreement and Ladbrokes' instructions from time to
time;
|
| 4.1.5 |
provide
the Hosting Services during Phase
I;
|
11
| 4.1.6 |
ensure
that, on delivery and performance by the Developer of any Integration
Services, the relevant Products shall be tested by Developer with
the
latest commercially available detection software for Viruses consistent
with best industry practice, and that the Products are free from
any
Virus;
|
| 4.1.7 |
comply
and ensure that its personnel comply with all applicable laws,
regulations, codes of practice and other regulatory licences and
permits
relating to and in the performance of its obligations hereunder;
|
| 4.1.8 |
obtain
and maintain throughout the Term, all third party licences, permits
or
consents necessary for the performance of its obligations hereunder;
and
|
| 4.1.9 |
at
all times during the Term and for a period of two (2) years from
the Go
Live Date, at its own cost, effect with a reputable insurer satisfactory
to Ladbrokes appropriate insurance policies in relation to risks
and
liabilities arising from Developer's warranty at Clause 5.2.3 in
the
amount of not less than £250,000 for each and every event, and shall
as soon as practicable after signature of this Agreement, notify
such
insurer of its obligations hereunder and shall ensure that Ladbrokes
is
named on the certificate of insurance and provide a copy of such
certificate to Ladbrokes on demand.
|
|
4.2
|
Developer
undertakes that it shall not, during the Term or thereafter, use
or
authorise, permit, supply, license or otherwise provide to a third
party
to use Customer Data in any manner.
|
|
4.3
|
Developer
agrees that the Game (and any associated Documentation) provided
to
Ladbrokes shall not contain any reference to or branding of Developer.
The
Game shall exclusively contain the branding of Ladbrokes, save that
Ladbrokes shall permit Developer to include a credit within the 'Help'
or
'Game Rules' section of the Product Interface (such credit may include
an
HTML link to the Developer's
website).
|
|
5.
|
WARRANTIES
AND INDEMNITY
|
|
5.1
|
Each
party to this Agreement warrants, represents and undertakes to the
other
that it has, and will retain throughout the Term, all right, title
and
authority to enter into this Agreement, to grant to the other party
the
rights and licences expressed to be granted in this Agreement and
to
perform all of its obligations under this
Agreement.
|
|
5.2
|
Developer
warrants, represents and undertakes to Ladbrokes
that:
|
| 5.2.1 |
the
Products shall be fit for their purpose and free of all
Viruses;
|
| 5.2.2 |
the
Products shall not contain any material which is illegal, obscene,
defamatory or in breach of any third party Intellectual Property
Rights;
|
| 5.2.3 |
Ladbrokes'
use of the Products shall not infringe any third party Intellectual
Property Rights;
|
12
| 5.2.4 |
the
Game shall comply with the Specification.
|
|
5.3
|
Each
party represents, warrants and undertakes to the other that it has
obtained and will maintain in force all necessary registrations,
authorisations, consents and licences to enable the parties to fulfil
their obligations under this Agreement and that such party complies
with,
and shall continue to comply with, all applicable data protection
legislation.
|
|
5.4
|
Developer
shall defend, indemnify and keep indemnified each Ladbrokes Indemnified
Party and hold them harmless forthwith on demand against any liability,
damage, expense, loss, claim or cost (including reasonable legal
fees)
suffered by such Ladbrokes Indemnified Party in respect of any breach
of
Developer's warranties set out in this Clause 5.
In
the event of any such claim, such Ladbrokes Indemnified Party
may:
|
| 5.4.1 |
notify
Developer in writing of any such claim; and
|
| 5.4.2 |
give
Developer (at Developer's own cost) conduct of the defence of such
claim
and all related settlement negotiations; and
|
| 5.4.3 |
provide
Developer with reasonable assistance, information, and authority
necessary
to act in accordance with Clause 5.4.2,
all out-of-pocket expenses incurred by any Ladbrokes Indemnified
Party in
providing such assistance, information and authority to be reimbursed
by
Developer.
|
|
5.5
|
Without
prejudice to the provisions of Clauses 5.4
and 5.6,
if a claim, demand or action for infringement or alleged infringement
of
any Intellectual Property Rights relating to the Products or any
part
thereof (or the use and/or exploitation thereof by Ladbrokes) is
made by
any third parties (or in the reasonable opinion of Ladbrokes or Developer
is likely to be made), Developer, at its own expense and as soon
as
reasonably practicable and in consultation with Ladbrokes,
shall:
|
|
5.5.1
|
modify
the Products (or the infringing part thereof) without reducing the
performance or functionality of the same or functionality in connection
with other related software, or replace the Products or infringing
part
thereof by other software of equivalent functionality, so as to avoid
the
infringement or the alleged infringement, provided that the terms
herein
shall apply mutatis mutandis to such modified or replaced Products
(or any
part thereof); or
|
|
5.5.2
|
procure
a licence for Ladbrokes to use the Products in accordance with the
terms
of this Agreement; or
|
| 5.5.3 |
take
such other action as Ladbrokes may reasonably propose to avoid or
settle
such claim, demand or action.
|
|
5.6
|
Without
prejudice to Clauses 5.4
and 5.5,
Developer shall defend, indemnify and keep indemnified each Ladbrokes
Indemnified Party and hold them harmless forthwith on demand against
any
liability, damage, expense, loss, claim or cost (including reasonable
legal fees) suffered by such Ladbrokes Indemnified Party in respect
of any
claim, demand or action for infringement or alleged infringement
of any
Intellectual Property Rights relating to the Products or any part
thereof
(or the use and/or exploitation thereof by Ladbrokes) made by any
third
party. In the event of any such claim, such Ladbrokes Indemnified
Party
may:
|
| 5.6.1 |
notify
Developer in writing of any such claim;
and
|
13
| 5.6.2 |
give
Developer (at Developer's own cost) conduct of the defence of such
claim
and all related settlement negotiations;
and
|
| 5.6.3 |
provide
Developer with reasonable assistance, information, and authority
necessary
to act in accordance with Clause 5.6.2,
all out-of-pocket expenses incurred by any Ladbrokes Indemnified
Party in
providing such assistance, information and authority to be reimbursed
by
Developer.
|
|
6.
|
LIMITATION
OF LIABILITY
|
| 6.1 |
Nothing
in this Clause 6
shall limit either party's liability for death or personal injury
or for
fraud.
|
|
6.2
|
Neither
party shall be liable, in contract, tort (including negligence) or
for
breach of statutory duty or in any other way for
any loss
of goodwill or reputation or any special or indirect or consequential
losses,
suffered or incurred by the other party (whether or not such losses
were
within the contemplation of the parties at the date of this Agreement)
in
relation to any matter arising under this
Agreement.
|
|
6.3
|
Each
party's total aggregate liability to the other under or in connection
with
this Agreement shall not exceed £250,000 (two hundred and fifty thousand
pounds sterling). This Clause 6.3
shall not limit Ladbrokes' liability to pay to Developer sums properly
owing to Developer pursuant to Clause 8
below.
|
|
6.4
|
Clauses
6.2 and 6.3 shall not apply to Clause
5.6.
|
|
7.
|
INTELLECTUAL
PROPERTY RIGHTS
|
|
7.1
|
The
parties agree and acknowledge that:
|
| 7.1.1 |
all
Intellectual Property Rights in and to the Products and any Developer
Customisations (excluding any Ladbrokes Specific Customisations and,
for
the avoidance of doubt, the Ladbrokes System and Ladbrokes Site)
are and
shall (as between the parties) remain the property of Developer and/or
companies within the Developer's
Group;
|
| 7.1.2 |
all
Intellectual Property Rights in any Ladbrokes Specific Customisations
are
and shall be owned by Ladbrokes. Developer hereby assigns to Ladbrokes
with full title guarantee all legal and beneficial right, title and
interest in the Ladbrokes Specific Customisations (so far as the
same may
by law be assigned) and the Intellectual Property Rights in and in
relation to such Ladbrokes Specific Customisations (and the full,
exclusive, unfettered worldwide right to use the same for any purpose).
For the avoidance of doubt, Developer agrees that it may not use
such
Ladbrokes Specific Customisations, except as provided under the terms
of
this Agreement, without Ladbrokes' prior written
consent;
|
14
| 7.1.3 |
all
rights in and to the Customer Data are and shall (as between the
parties)
remain the property of Ladbrokes and nothing in this Agreement shall
be
construed as granting to Developer any rights in and to such Customer
Data;
|
| 7.1.4 |
all
Intellectual Property Rights in all products, associated systems
and
software (save for the Products excluding any Ladbrokes Specific
Customisations) on the Ladbrokes System and the Ladbrokes Site are
and
shall (as between the parties) remain the property of Ladbrokes;
and
|
| 7.1.5 |
all
goodwill arising in any Ladbrokes branding or trade marks licensed
or
provided under this Agreement shall arise solely for the benefit
of
Ladbrokes.
|
|
7.2
|
Ladbrokes
shall be entitled at any time to change the name of the Game and
rebrand
the Game accordingly (including by way of engaging the Developer
to do
so). Ladbrokes shall own any Intellectual Property Rights in any
such
names and branding. Developer hereby assigns to Ladbrokes with full
title
guarantee all legal and beneficial right, title and interest in such
names
and branding (so far as the same may by law be assigned) and the
Intellectual Property Rights in and in relation to such names and
branding
(and the full, exclusive, unfettered worldwide right to use the same
for
any purpose). For the avoidance of doubt, Developer agrees that it
may not
use such names and branding, except as provided under the terms of
this
Agreement, without Ladbrokes' prior written
consent;
|
|
8.
|
LICENCE
FEE AND REVENUE SHARE
|
|
8.1
|
Ladbrokes
shall pay to Developer a one-off licence fee payment of $50,000
(fifty
thousand
USD) within 30 days of invoice, such invoice to be delivered on or
after
the date hereof.
|
Phase
I
|
8.2
|
Ladbrokes
shall pay to the Developer US$17,000
(seventeen
thousand
US
dollars) or as such amount may be varied pursuant to Clause 8.4
("Initial
Value")
to be deposited into the float on the date of signature of this Agreement
and held on trust solely for Ladbrokes. In the event that the Ladbrokes
Float Contribution is or is likely to be less than zero in any calendar
month due to the accrual and deductions pursuant to Clause 8.3, the
Developer shall notify Ladbrokes of such likelihood and the Parties
shall
agree an additional sum to be paid by Ladbrokes which is appropriate
in
the circumstances and such amount shall be added to the Initial Value
for
the purposes of Clause 8.2.
|
|
8.3
|
Each
calendar month during Phase I, the Developer
shall:
|
| 8.3.1 |
deduct
from the Ladbrokes Float Contribution stakes placed and any tournament
fees paid by Ladbrokes Customers playing the Game during such calendar
month;
|
15
| 8.3.2 |
add
to the Ladbrokes Float Contribution winnings accrued by Ladbrokes
Customers playing the Game in that calendar month;
and
|
| 8.3.3 |
add
to the Ladbrokes Float Contribution any interest accrued during such
calendar month.
|
|
8.4
|
In
the event that the Ladbrokes Float Contribution is or is likely to
be less
than zero in any calendar month, the Developer shall notify Ladbrokes
of
such likelihood and the Parties shall agree an additional sum to
be paid
by Ladbrokes which is appropriate in the circumstances and such amount
shall be added to the Initial Value for the purposes of Clause
8.2.
|
|
8.5
|
Within
five (5) Business Days of the end of the respective calendar month
during
Phase I, the Developer shall:
|
| 8.5.1 |
issue
to Ladbrokes a statement showing the Rake and Net Rake for such calendar
month ("Rake
Statement");
and
|
| 8.5.2 |
add
to the Ladbrokes Float Contribution the value of Rake and deduct
15
---
per cent of Net Rake (as shown on such statement) (the "Rake
Share").
|
|
8.6
|
Within
ten (10) Business Days of the end of the respective calendar month
during
Phase I, the Developer shall issue Ladbrokes a statement showing
the value
of Ladbrokes Float Contribution at the end of such calendar month
and the
deductions and payments into the Ladbrokes Float Contribution pursuant
to
clauses 8.3 and 8.4. Where the Ladbrokes Float Contribution exceeds
the Initial Value, the Developer shall promptly pay the difference
to
Ladbrokes within 5 Business days of delivery of an appropriate invoice
from Ladbrokes. Where the Ladbrokes Float Contribution at the end of
such month is less than the Initial Value, Ladbrokes shall pay to
the
Developer the difference between the Initial Value and the value
of the
Ladbrokes Float Contribution at the end of such month, within 5 Business
Days of receipt of an appropriate invoice from the
Developer.
|
|
8.7
|
In
addition to their audit rights under clause 9.2, and save where the
parties otherwise agree in writing, the parties agree and acknowledge
that, should the Rake exceed 15
---
per cent of the value of stakes placed by Ladbrokes Customers in
respect
of the Game, Ladbrokes and Ladbrokes' representatives shall be entitled
to
perform an audit of the Transaction
Records
|
Phase
II
|
8.8
|
Within
ten (10) Business days of the end of the Calendar month in which
Phase I
is completed and Phase II commences, the Developer shall pay to Ladbrokes
the amount held as a Ladbrokes Float
Contribution.
|
|
8.9
|
Within
ten (10) Business Days of the end of each calendar month during Phase
II,
Ladbrokes shall send to Developer a statement setting out details
of the
gross revenues received from all Customers using the Games available
for
use on the Ladbrokes' Site during the preceding calendar month. Such
statement shall also set out the aggregate amount of each type of
deduction from such gross revenues (for example, the aggregate amount
of
gross profits taxes payable in respect of such gross revenues) to
calculate Net Rake (the "Statement").
|
16
|
8.10
|
Subject
to Clause 8.11, within fifteen (15) Business Days of receipt of any
Statement, Developer shall invoice Ladbrokes for 15
---
of
the Net Rake set out in such Statement (the "Revenue
Share").
|
|
8.11
|
Subject
to Clause 8.11, Ladbrokes shall pay to Developer the Revenue Share
within
thirty (30) Business Days of receipt of the invoice described in
Clause
8.10.
|
Interest
|
8.12
|
If
either party fails to pay by the due date any amount payable by it
under
this Agreement, the other party shall be entitled but not obliged
to
charge interest on the overdue amount, from the due date up to the
date of
actual payment, at the rate of 2% per cent per annum above the base
rate
for the time being of Barclays Bank
Plc.
|
|
9.
|
AUDIT
RIGHTS
|
|
9.1
|
Both
Parties shall keep at their principal place of business during and
for at
least seven (7) years after the expiry or earlier termination of
the Term
books of accounts and records together with supporting documentation
of
transactions which relate to or affect the calculation of the Rake
("Transaction
Records").
|
Phase
I
|
9.2
|
The
Developer shall procure that Ladbrokes and Ladbrokes' representatives
have, upon reasonable prior written notice, (and not more than once
per
annum) reasonable access during normal business hours to the Developer's
principal place of business to inspect and audit the Transaction
Records
with the right to take reasonable excerpts during the Term and for
one (1)
year thereafter.
|
|
9.3
|
If
an audit reveals an underpayment to Ladbrokes of 10% or more, then
the
Developer shall pay the reasonable costs of such audit and pay such
underpayment within twenty (20) Business Days of completion of such
audit.
In all other circumstances the costs of any audit shall be borne
by
Ladbrokes. If an overpayment is discovered the amount of such overpayment
shall be deducted from the Ladbrokes Float Contribution in accordance
with
Clauses 8.3 to 8.5 (inclusive) of this
Agreement.
|
|
9.4
|
The
Developer shall procure that Ladbrokes or Ladbrokes' representatives
have,
upon reasonable prior notice and at Ladbrokes' cost and expense,
reasonable access during normal business hours to the Developer's
premises
to inspect the operations of the random number
generator.
|
17
Phase
II
|
9.5
|
Ladbrokes
shall procure that the Developer and the Developer's representatives
have,
upon reasonable prior written notice, (and not more than once per
annum)
reasonable access during normal business hours to the Ladbrokes'
principal
place of business to inspect and audit the Transaction Records with
the
right to take reasonable excerpts during the Term and for one (1)
year
thereafter.
|
|
9.6
|
If
an audit reveals an underpayment to the Developer of 10% or more,
then
Ladbrokes shall pay the reasonable costs of such audit and pay such
underpayment within twenty (20) Business Days of completion of such
audit.
In all other circumstances the costs of any audit shall be borne
by the
Developer.
|
|
10.
|
CESSATION
|
| 10.1 |
Ladbrokes
may at any time and for any reason decline or cease to use or otherwise
exploit the Game ("Cessation").
|
|
10.2
|
The
parties agree and acknowledge that Ladbrokes will not be liable in
contract, tort (including negligence) or for breach of statutory
duty or
in any other way for any loss of revenues or profits or for any other
loss
if the Game is removed from the Ladbrokes Site or otherwise not maintained
on the Ladbrokes Site for any of the following
reasons:
|
| 10.2.1 |
hardware
or software failure in relation to all or any part of the Ladbrokes
System;
|
| 10.2.2 |
events
arising beyond Ladbrokes control;
|
| 10.2.3 |
Ladbrokes
exercising its rights under Clause 10.1;
or
|
| 10.2.4 |
the
termination of this Agreement by Ladbrokes in accordance with the
terms
hereof.
|
Nothing
in
this Clause 10
shall
limit Ladbrokes' liability for death or personal injury or for
fraud.
|
10.3
|
Ladbrokes
gives no representation or warranty in respect of the amount of revenues
(including Net Rake) that may be derived through making available
the Game
on the Ladbrokes Site.
|
|
10.4
|
Any
Cessation shall not affect the rights and obligations of either party
under this Agreement.
|
|
11.
|
TERM
AND TERMINATION
|
|
11.1
|
This
Agreement shall commence on the date of signature of this Agreement
by
both parties for an initial term of three (3) years and, subject
to
earlier termination pursuant to clauses 11.4
and 11.6
below, shall continue automatically for successive periods of one
(1) year
thereafter ("xxx Xxxx").
|
|
11.2
|
Either
party (the "non
defaulting party")
may terminate this Agreement immediately on notice to the other party
(the
"defaulting
party")
if:
|
18
| 11.2.1 |
the
defaulting party has committed a material breach of any of its obligations
under this Agreement which is incapable of remedy; or
|
| 11.2.2 |
the
defaulting party has committed a material breach or other default
in
performing any of its obligations under this Agreement, which is
capable
of remedy and which that defaulting party has not remedied within
thirty
(30) days of receipt of written notice of such breach or other default
from the non defaulting party; or
|
| 11.2.3 |
the
defaulting party ceases or threatens to cease to carry on its business
or
any material part thereof; or
|
| 11.2.4 |
the
defaulting party voluntarily or involuntarily suspends or discontinues
its
business, liquidates or sells its assets or a substantial part thereof,
makes an assignment for the benefit of its creditors, becomes, or
admits
in writing that it is unable to pay its debts as they mature or becomes
insolvent; or
|
| 11.2.5 |
any
bankruptcy, reorganisation, moratorium, insolvency or similar proceedings
for the relief of financially distressed debtors are instituted by
or
against the defaulting party; or
|
| 11.2.6 |
a
receiver, liquidator or other third party is appointed over the defaulting
party's assets or business; or
|
| 11.2.7 |
winding-up,
dissolution or liquidation (judicial or non-judicial) proceedings
are
initiated or considered by the defaulting party.
|
|
11.3
|
Each
party shall as soon as reasonably possible give notice in writing
to the
other party of any event within Clause 11.2
which occurs during the Term and which would entitle the other party
to
terminate this Agreement.
|
|
11.4
|
Ladbrokes
may terminate this Agreement:
|
| 11.4.1 |
on
six (6) months prior written notice to
Developer;
|
| 11.4.2 |
upon
any material increase to the Rake that is not agreed in writing
beforehand; or
|
| 11.4.3 |
immediately
on giving written notice to Developer in the event that any claim
is made
by a third party that the Products (or any part thereof) infringes
the
Intellectual Property Rights of any third party;
or
|
| 11.4.4 |
in
the event that control (as defined in section 435 of the Insolvency
Act
1986) of Developer is acquired by any person or group of associates
(as
defined in that section) not having control of it at the date of
this
Agreement.
|
|
11.5
|
Developer
may terminate this Agreement on six (6) months' prior written notice
to
Ladbrokes.
|
|
11.6
|
The
provisions of Clauses 1,
4.1,
4.2,
5,
6,
7,
8.2 to 8.12 (inclusive), 9,
11.6,
12
to
17
(inclusive) and 19
to
24
(inclusive) and such other Clauses the survival of which is necessary
for
the interpretation or enforcement of this Agreement, shall continue
to
have effect after any termination or expiry of this
Agreement.
|
19
|
12.
|
CONSEQUENCES
OF TERMINATION
|
|
12.1
|
On
termination or expiry of this
Agreement:
|
| 12.1.1 |
Developer
shall, upon giving reasonable written notice to Ladbrokes and during
normal working hours, remove the Products from the Ladbrokes System
(to
the extent that the Products have been installed or otherwise integrated
with the Ladbrokes System) and restore the Ladbrokes System to the
state
that it was in prior to such installation or integration and each
Party
shall be responsible for its own costs in complying with their obligations
under this Clause 12.1.1;
|
| 12.1.2 |
Subject
to Clause 12.1.1,
Developer may request the return of all other copies of the Products
held
by Ladbrokes. In the event of such a request, Ladbrokes shall either
return all such copies or certify in writing to Developer that all
such
copies have been destroyed;
|
| 12.1.3 |
within
ten (10) Business Days of the termination or expiry of this Agreement
the
Developer shall pay Ladbrokes any amounts remaining in the Ladbrokes
Float
Contribution after clauses 8.3 to 8.5 have been complied with in
respect
of the remainder of the calendar month during which such expiry or
termination of the Agreement
occurs.
|
| 12.1.4 |
within
ten (10) Business Days of termination or expiry of this Agreement
the
Developer shall supply Ladbrokes with records in readable form of
all data
in relation to Customers' use of the Games, including histories of
Games
played by Customers and records of all transactions by Customers,
the
Developer and Ladbrokes in relation to the
Games.
|
|
12.2
|
On
termination of this Agreement pursuant to clauses 11.2.3 to 11.2.7
(inclusive) the source code held in escrow pursuant to the Escrow
Agreement is released pursuant to the provisions of the Escrow
Agreement:
|
| 12.2.1 |
the
provisions of clauses 12.1.1 and 12.1.2 shall not apply;
and
|
| 12.2.2 |
Ladbrokes
shall continue to be entitled to use the source code to provide the
Products and use the Products to the extent and in the manner permitted
under this Agreement.
|
|
13.
|
CONFIDENTIALITY
|
|
13.1
|
Each
party undertakes that it will not at any time hereafter use, divulge
or
communicate to any person, except to its professional representatives
or
advisers or as may be required by law or any legal or regulatory
authority, any confidential information (including any Customer Data
and,
in the case of Developer, any Transaction Records accessed pursuant
to
Clause 9)
concerning the business or affairs of the other party or of any member
of
the Group to which the other party belongs which may have or may
in future
come to its knowledge and each of the parties shall use its reasonable
endeavours to prevent the publication or disclosure of any confidential
information concerning such matters.
|
20
|
13.2
|
Neither
party shall make any announcement relating to this Agreement or its
subject matter without the prior written approval of the other party
except as required by law or by any legal or regulatory
authority.
|
|
14.
|
ENTIRE
AGREEMENT
|
|
14.1
|
This
Agreement constitutes the entire Agreement and understanding of the
parties and supersedes any previous agreement between the parties
relating
to the subject matter of this Agreement.
|
|
14.2
|
Each
of the parties acknowledges and agrees that in entering into this
Agreement it does not rely on, and shall have no remedy in respect
of, any
statement, representation, warranty, understanding, promise or assurance
(whether negligently or innocently made) of any person (whether party
to
this Agreement or not) other than as expressly set out in this
Agreement.
|
|
14.3
|
Nothing
in this Clause shall operate to limit or exclude any liability for
fraud.
|
|
15.
|
WAIVER
|
| 15.1 |
In
no event will any delay, failure or omission (in whole or in part)
in
enforcing, exercising or pursuing any right, power, privilege, claim
or
remedy conferred by or arising under this Agreement or by law, be
deemed
to be or construed as a waiver of that or any other right, power,
privilege, claim or remedy in respect of the circumstances in question,
or
operate so as to bar the enforcement of that, or any other right,
power,
privilege, claim or remedy, in any other instance at any time or
times
subsequently.
|
| 15.2 |
The
rights and remedies provided by this Agreement are cumulative and
(unless
otherwise provided in this Agreement) do not exclude any other rights
or
remedies available in law.
|
|
16.
|
SEVERANCE
|
| 16.1 |
If
any provision of this Agreement shall be found by any court or
administrative body of competent jurisdiction to be invalid or
unenforceable, such invalidity or unenforceability shall not affect
the
other provisions of this Agreement which shall remain in full force
and
effect.
|
| 16.2 |
The
parties agree, in the circumstances referred to in Clause 16.1,
to attempt to substitute for any invalid or unenforceable provision
a
valid or enforceable provision which achieves to the greatest extent
possible the same effect as would have been achieved by the invalid
or
unenforceable provision.
|
21
|
17.
|
FURTHER
ASSURANCE
|
|
17.1
|
Developer
shall use best endeavours to execute or cause to be executed all
documents
and do or cause to be done all further acts and things consistent
with the
terms of this Agreement that Ladbrokes may from time to time reasonably
require in order to vest in and secure to Ladbrokes the full benefit
of
rights and benefits to be transferred or granted to Ladbrokes under
this
Agreement and for the protection and enforcement of the same and
otherwise
to give full effect to the terms of this
Agreement.
|
|
18.
|
NOTICES
|
|
18.1
|
Any
notice given or made under this Agreement shall be in writing and
in
English and signed by or on behalf of the party giving it and shall
be
served by hand, delivering it or sending it by prepaid recorded or
special
delivery post or prepaid international recorded airmail, or fax to
the
address and for the attention of the relevant party set out in Clause
18.2
(or as otherwise notified by that party hereunder). Any such notice
shall
be deemed to have been received:
|
| 18.1.1 |
if
hand delivered or sent by prepaid recorded or special delivery post
or
prepaid international recorded airmail, at the time of delivery;
|
| 18.1.2 |
if
sent by post (other than by prepaid recorded or special delivery
post),
two (2) days from the date of
posting;
|
| 18.1.3 |
if
sent by airmail (other than by prepaid international recorded airmail),
five (5) days from the date of
posting;
|
| 18.1.4 |
in
the case of fax, at the time of transmission;
|
Provided
that if deemed receipt occurs before 9.00a.m. on a Business Day the notice
shall
be deemed to have been received at 9.00a.m. on that day, and if deemed receipt
occurs after 5.00p.m. on a Business Day, or on any day which is not a Business
Day, the notice shall be deemed to have been received at 9.00a.m. on the next
Business Day.
|
18.2
|
The
addresses and fax numbers of the parties for the purposes of Clause
18.1
are:
|
Ladbrokes
International Limited
| Address: | 00-00 Xxxx Xxxx Xxxx, Xxxxxxxxx | |
| For the attention of: | Xxxxxx Xxxxxxxx, Managing Director | |
| Fax number: | 00 000 00000 | |
| Mahjong Systems Limited | ||
| Address: | Britannic House, Providenciales, Turks and Caicos Islands | |
| For the attention of: | Xxxxxxx Xxxxx | |
| Fax number: | 00000 000 0000 |
22
or
such
other address, or fax number as may be notified in writing from time to time
by
the relevant party to the other party. Any such change to the place of service
shall take effect five (5) Business Days after notice of the change is received
or (if later) on the date (if any) specified in the notice as the date on which
the change is to take place.
|
18.3
|
In
proving such service it shall be sufficient to prove that the envelope
containing such notice was addressed to the address of the relevant
party
set out in Clause 18.2
(or as otherwise notified by that party hereunder) and delivered
either to
that address or into the custody of the postal authorities as a prepaid
recorded or special delivery or international recorded airmail letter,
or
that the notice was transmitted by fax to the fax number of the relevant
party set out in Clause 18.2
(or as otherwise notified by that party
hereunder).
|
|
18.4
|
For
the avoidance of doubt, notice given under this Agreement shall not
be
validly served if sent by email.
|
|
18.5
|
For
the avoidance of doubt, the parties agree that the provisions of
this
Clause shall not apply in relation to the service of any process
in any
legal action or proceedings arising out of or in connection with
this
Agreement or the legal relationships established by this
Agreement.
|
|
19.
|
AMENDMENT
|
|
19.1
|
No
modification or variation of this Agreement (or any document entered
into
pursuant to or in connection with this Agreement) shall be valid
unless it
is in writing and signed by or on behalf of each of the parties to
this
Agreement.
|
|
19.2
|
Unless
expressly so agreed, no modification or variation of this Agreement
shall
constitute or be construed as a general waiver of any provisions
of this
Agreement, nor shall it affect any rights, obligations or liabilities
under this Agreement which have already accrued up to the date of
such
modification or waiver, and the rights and obligations of the parties
under this Agreement shall remain in full force and effect, except
and
only to the extent that they are so modified or
varied.
|
|
20.
|
set
off
|
|
20.1
|
All
amounts due under this Agreement shall be paid in full without any
deduction or withholding other than as required by law, and neither
Party
shall be entitled to assert any credit, set-off or deduction, counterclaim
or abatement of any nature whatsoever against the other Party in
order to
justify withholding payment of any such amount in whole or in
part.
|
|
21.
|
GOVERNING
LAW AND JURISDICTION
|
|
21.1
|
The
validity, construction and performance of this Agreement shall be
governed
by and construed in accordance with the law of England and Wales.
|
23
|
21.2
|
Each
party irrevocably agrees to submit to the exclusive jurisdiction
of the
courts of England and Wales over any claim, dispute or matter arising
under or in connection with this Agreement.
|
|
22.
|
THIRD
PARTY RIGHTS
|
Except
insofar as this Agreement expressly provides that a third party may in his
own
right enforce a term of this Agreement, a person who is not a party to this
Agreement has no right under the Contracts (Rights of Third Parties) Xxx 0000
to
rely upon or enforce any term of this Agreement but this does not affect any
right or remedy of a third party which exists or is available apart from that
Act. Neither party may declare itself a trustee of the rights under this
Agreement for the benefit of any third party.
|
23.
|
NO
PARTNERSHIP
|
Nothing
in this Agreement shall create or be deemed to create a partnership, joint
venture or principal-agent relationship between the parties and no party shall
have authority to bind any other in any way unless expressly provided otherwise
in this Agreement.
|
24.
|
PERPETUITY
PERIOD
|
If
the
rule against perpetuities applies to the declaration of trust in clause 8.2,
the
perpetuity period shall be 80 years from the date of this
Agreement.
|
25.
|
ASSIGNMENT
|
Save
as
expressly set out herein, neither party may assign, transfer, charge,
sub-license or deal in any other manner with this Agreement without the other
party's prior written consent, not to be unreasonably withheld or delayed,
and
provided that Ladbrokes may assign, transfer, change, sub-licence or deal in
any
other manner with this Agreement, or sub-contract any of its rights and
obligations under this Agreement, to any company within Ladbrokes'
Group.
24
SCHEDULE
1
SPECIFICATION
As
attached.
25
SCHEDULE
2
PHASE
I HOSTING SERVICES
|
1.
|
Game
storage and availability
|
|
1.1
|
The
Developer shall store the Game on the Kahnawake
Server.
|
|
1.2
|
The
Developer shall ensure a 99.8% up time of the Game, measured
monthly.
|
|
2.
|
Updates
and operational checks
|
|
2.1
|
The
Developer shall regularly perform updates of the Game during Phase
I to
correct any material defect in the operation of the security of the
Game
which is brought to the notice of the
Developer.
|
|
3.
|
Server
support and back-up
|
|
3.1
|
The
Kahnawake Server shall have a back-up power supply. The Developer
shall
also host one mirrored image of the Game on a back-up server supplied
with
a back-up power supply.
|
|
3.2
|
The
Developer shall maintain an off-site storage of a copy of the Game
data.
|
|
3.3
|
The
Developer shall ensure Transaction Records are backed up on a daily
basis.
|
|
4.
|
Suspension
due to Maintenance
|
|
4.1
|
The
Developer may, at its sole discretion, temporarily suspend operation
of
the Game for the purpose of repair, maintenance or improvement of
the
Kahnawake Server or any of Ladbrokes' systems. The Developer shall,
if
practicable, notify Ladbrokes in advance of any such suspension and
shall
restore Game operations as soon as reasonably practicable.
|
|
5.
|
Security
|
|
5.1
|
The
Developer shall take all reasonable steps to prevent security breaches
in
the interaction between the Kahnawake Server and Ladbrokes and/or
Customers.
|
|
6.
|
Notification
of maintenance and updates
|
|
6.1
|
The
Developer shall notify Ladbrokes of any planned updates and/or maintenance
and shall use all reasonable endeavours to agree mutually convenient
times
for the implementation of such maintenance and/or updates with
Ladbrokes.
|
i
1.
Introduction
MM
operates a multiplayer Mahjong game that is attached to existing gaming sites.
The game consists
of a Lobby and Game Rooms, each game room containing a number of tables.
At
each
table
there must be 4 players (if it is in play). The game is manifested through
a
flash window that displays the table and the other participants in pseudo
3D.
Participants are assigned an avatar"
(appearance) at random.
2.
Game
Client
The
Mahjong game client is a subsystem of the Mahjong game product. It is the
software that runs on the end user's computer and graphically represents
Mahjong
games that are played by multiple
players through the Internet. The game play is controlled by Mahjong rules
implemented
on the
Mahjong game server, and players use the client software to connect to the
server, perform game actions and interact with other players.
The
game
client supports both free game play and real money play. It can be configured
at
startup
to enable both type of games or just one of them. If both free game and real
money game
are
enabled, it provides an easy way for players to switch betwe?n
them.
The
functionality of the room management includes:
| · |
Retrieve
room attributes and runtime status from the game
server.
|
| · |
Visualize
rooms and their attributes if
necessary.
|
| · |
Provide
user interface for room navigation.
|
| · |
Provide
user interface for players to perform room
activities.
|
Room
management logic is separated from the graphical user interface to make it
customizable
and
configurable.
2.1
Startup Procedure
The
Mahjong game client is designed to be integrated with operators. The figure
below shows its
startup
procedure in an integrated running environment.
ii
The
procedure includes the following steps.
| § |
User
requests playing a Mahjong game from an operator's gaming
site.
|
| § |
If
the user has not logged in, the operator's gaming site routes
the user to
a login page.
|
| § |
User
performs login in a web browser window and the login request
is sent to
the operator.
|
| § | The operator's gaming site generates an encrypted user token. The user token contains user identification, operator identification, language, currency and the information to customize the game client. |
| § |
The
user token is sent from the operator to the Mahjong game server
through a
HTTPS request.
All game traffic is over HTTPS.
|
| § |
By
receiving the request, the mahjong game serve generates a HTML
file as the
response. HTML
file contains code to request Flash Player to load the first
movie of the
game client, with the user token as one of the movie rendering
parameters.
|
| § |
The
Mahjong game server responses the operator's request with the
HTML
file.
|
| § |
The
operator's gaming site forwards the HTML file to the web
browser.
|
| § | The
web browser requests the depository of the Mahjong game client
and loads
the first
movie,
thus starts the Mahjong game client.
|
| § | The
mahjong game client interacts with the game server. The game proceeds.
All
game
traffic
is over HTTPS.
|
iii
3.
Game
Play
The
initial state of a Mahjong game is initialized by the game server. The game
state keeps changing by player's game actions until the game reaches its
end.
Thus, the game play management on client side has two basic functions. First,
it
provides client logic to show game state changes; and the second it offers
easy
ways for players to take game actions.
The
game
status management includes the following functionality,
it:
| · |
Provides
data structure to represent game elements, including players, seats,
Mahjong tiles, dice and avatars.
|
| · |
Imparts
data structure to maintain game state. The game state consists
of the
status of all game elements.
|
| · |
Maps
game server message contents to game element
status.
|
| · |
Updates
game element status on receiving server
messages.
|
| · | Implements visual representations for each game element and their status. |
| · | Provides game client logic that understands Mahjong game table layout, game element positions, Mahjong tile orientations, and the relationships among different game elements. |
| · | Provides game client logic that maps game status change to visual game element rendering. |
| · | By entering the game, players engage to play the game to the end. If the player leaves the game, either through disconnection, client machine failure or,Fas a willful act, the player's drawn tile will be automatically discarded. The player cannot win or draw an offered discarded tile. The timeout depends on various room settings. |
4.
Escrowing
Once
the
game is initiated all players will be charged the maximum amount that
they can
lose by way of a debit to the source operator (Escrow Funds). These funds
are
transferred to MM for the period of the game.
Once
the
game is complete, we have a winner. The winner is credited the Table
Stake *
Points - House Rake. The operator is credited its Rake Share. The losers
are
credited any amount left from their Escrow Funds after deduction of
their
contribution to the winner. All of these transactions have corresponding
transactions at the remote operators.
iv
5.
Development and Runtime Environment
To
gain
maximum accessibility and portability, Macromedia Flash MX
2004
is
selected
as the main development environment. The game client program is developed
with
Flash Action Script 2.0. The program and graphics resources are compiled
to
Flash Player 7.0 movies and can be rendered directly through a web browser
as
long as the right version of Flash Player is installed. This solution has
the
following obvious advantages.
Flash
movie playback is widely supported by various platforms and browsers. Compiling
the game client to Flash movies makes it more portable and more accessible
than
other solutions. The following table is a list of platforms and browsers
that
support Flash playback, and thus support the game client.
Windows
|
Platform
|
Browser
|
|
Windows
NT
|
Microsoft
Internet Explorer 6.0,
Netscape
7.x, Mozilla 1.x,
CompuServe
7, and Opera 7.11
|
|
Windows
98
|
Microsoft
Internet Explorer 5.x, Netscape 4.7,
Netscape
7.x,
Mozilla
1.x,
AOL 8,
and
Opera 7.11
|
|
Windows
Me
|
Microsoft
Internet Explorer 5.5, Netscape 4.7,
Netscape
7.x,
Mozilla
1.x,
AOL 8, and Opera 7.11
|
|
Windows
2000
|
Microsoft
Internet Explorer 5.x, Netscape 4.7,
Netscape
7.x, Mozilla
1.x,
XxxxxXxxxx 0, XXX 0, and Opera 7.11
|
|
Windows
XP
|
Microsoft
Internet Explorer 6.0,
Netscape
7.x,
Mozilla
1.x,
XxxxxXxxxx
0, XXX 0,
and
Opera 7.11
|
Macintosh
|
Platforms
|
Browsers
|
|
Mac
OS 9.x
|
Microsoft
Internet Explorer 5.1, Netscape 4.8,
Netscape
7.x,
Mozilla
1.x, and Opera 6
|
|
Mac
OS X 10.1.x, Mac OS X 10.2.x,
or
Mac
OS
X 10.3.x
|
Microsoft
Internet Explorer 5.2, Netscape 7.x,
Mozilla
1.x, AOL 7, Opera 6,
and
Safari 1.0
(Mac
OS X 10.2.x only)
|
Linux
|
Platforms
|
Browsers
|
|
RedHat
Enterprise Linux WS v. 3
|
Mozilla
1.2 and later, Netscape 7.1
|
|
RedHat
Linux 9
|
Mozilla
1.2 and later, Netscape 7.1
|
|
Sun
Java Desktop System 1.0
|
Mozilla
1.2 and later, Netscape 7.1
|
Solaris
|
Platforms
|
Browsers
|
|
Solaris
8
|
Mozilla
1.4
|
|
Solaris
9
|
Mozilla
1.4
|
|
Solaris
10
|
Mozilla
1.2 and later, Netscape 7.1
|
|
Solaris
10 with Java Desktop SYstem
|
Mozilla
1.4, Mozilla 1.7
|
v
6.
Existing Application Hardware
Please
find below our existing production environment.
|
ID
|
Brand
|
Characteristics
|
Role
|
|
F1
|
IBM
Eserver Xseries 355
|
2x
Intel Xeon 2.4Ghz/Raid 1 36Gb
SCSI/1.5Gb
|
Application
Server
|
|
R1
|
IBM
Eserver Xseries 355
|
2x
Intel Xeon 2.4Ghz/Raid 1 36Gb
SCSI/1.5Gb
|
Application
Server
|
|
W1
|
IBM
Eserver Xseries 355
|
2x
Intel Xeon 2.4Ghz/Raid 1 36Gb
SCSI/1.5Gb
|
Webserver
|
|
W2
|
IBM
Eserver Xseries 355
|
2x
Intel Xeon 3.2Ghz/Raid 1 73Gb
SCSI/2.0Gb
|
Webserver
|
|
F2
|
IBM
Eserver Xseries 355
|
2x
Intel Xeon 3.2Ghz/Raid 1 73Gb
SCSI/2.0Gb
|
Application
Server
|
|
R2
|
IBM
Eserver Xseries 355
|
2x
Intel Xeon 3.2Ghz/Raid 1 73Gb
SCSI/2.0Gb
|
Application
Server
|
|
S1
|
IBM
Eserver Xseries 355
|
2x
Intel Xeon 3.2Ghz/Raid 1 73Gb
SCSI/2.0Gb
|
Clustered
SQL node
|
|
S2
|
IBM
Eserver Xseries 355
|
2x
Intel Xeon 3.2Ghz/Raid 1 73Gb
SCSI/2.0Gb
|
Clustered
SQL node
|
|
D1
|
IBM
EXP 420 Diskstorage
|
13
73 Gb HD 's split in several arrays Raid 1
|
Cluster
disk storage
|
|
N1,
N2
|
2
Intel Netstructures
|
|
XXX
|
|
XXX0,
XXX0
|
2
Radware WSD
|
|
Website
Server Directors
|
|
Prime
|
Alternate
|
Backup
|
Failover
type
|
|
W1
|
W2
|
Logs:
daily off-site
|
Manual
|
|
F1
|
F2
|
Logs:
daily off-site
|
Manual
switch I software Load balanced
|
|
R1
|
R2
|
Logs:
daily off-site
|
Manual
switch / software Load balanced
|
|
D1
|
D2
|
Transactions:
multi-location
internally:
backups day
|
MSSQL
Cluster
|
|
Ni
|
N2
|
n/a
|
Automatic
|
|
XXX0
|
XXX0
|
n/a
|
Automatic
|
Points
of
attack
|
Ports
|
Role
|
|
53
|
DNS
on UDP
|
|
80
|
_
HTTP:
for admin tool only
|
|
443
|
HTTPS:
All game traffic
|
vi
7.
Existing
Application:
Off
the
Shelf Software
DB:
MSSQL
Server 2000 v4
OS:
MSWindows 2003 SP1
Application
Servers.
Apache-Tomcat, JBoss
8.
Environment:
Hosting
facilities at Mohawk Internet Technologies. See http:l/xxxxxxx.xx,
especially
http:11w.mohawk.calseNices.php,
http:llw.mohawk.caltechnical.php
vii
SCHEDULE
3
SUPPORT
SERVICE LEVEL AGREEMENT
|
1.
|
DEFINITIONS
|
|
1.1
|
In
this schedule 3 unless the context requires otherwise, capitalised
terms
shall have the meanings set out in the Agreement and in addition
the
following terms shall have the following
meanings:
|
|
"Business
Hours"
|
9:00
am to 5:30 pm Monday to Sunday (inclusive) and including public
holidays;
|
|
"Condition"
|
any
error, problem, or defect resulting from an incorrect functioning
of the
Game if such an error, problem, or defect renders the Game inoperable,
causes the Game to fail to meet the Specification in any material
respect,
or causes such Specification to be inaccurate or incomplete in any
material respect;
|
|
"Correction"
|
any
change made to the Game by the Developer to correct a Condition in
the
Game;
|
|
"Support"
|
any
modification or revision to the Game needed to maintain the Game
in
operative condition, to correct Conditions, and to provide other
incidental updates and corrections; and
|
|
"Outage"
|
any
interruption, discontinuance, or technical failure (taken individually
or
together), other than a Planned Outage that results in the non-delivery
of
the Game to at least 10% of all Customers for a consecutive period
of 24
hours;
|
|
"Planned
Outage"
|
a
temporary planned shut down of the Game for the purpose of allowing
the
Developer to make any necessary corrections, modifications or extensions
to the Game.
|
|
2.
|
Support
|
The
Developer shall provide the support in accordance with the provisions of this
schedule 3.
|
3.
|
Help
desk
|
The
Developer shall provide the help desk service which shall consist of email
and
telephone support to Ladbrokes to answer questions concerning the use of the
Game, assistance in solving problems encountered in the use of the Game and
a
system for the reporting and correction of suspected Conditions, during Business
Hours. Outside Business Hours, the telephone help desk service will be available
via a dedicated mobile telephone number.
i
|
4.
|
condition
priorities
|
The
Developer will endeavour to provide the following support in the following
response times:
|
Priority
level
|
Problem
description
|
Target
response times
|
|
Urgent
|
Game
unavailable. Unable to operate further.
|
Best
efforts to provide a same day Correction.
|
|
Important
|
Important
area of the Game stops functioning.
|
1
day.
|
|
Minor
functional issue
|
Small
change requests/Conditions.
|
5
days.
|
|
Cosmetic
|
Text
and other cosmetic changes.
|
As
soon as practicable.
|
In
the
event of any Outage, Ladbrokes shall communicate the fact and severity of such
Outage to the Developer without delay and shall provide such co-operation as
the
Developer reasonably requires until the Outage has been resolved to the
satisfaction of Ladbrokes.
|
5.
|
PLANNED
OUTAGES
|
|
5.1
|
The
Developer will, on occasion, need to suspend the Game in order to
provide
Support:
|
|
5.1.1
|
the
Developer will use all reasonable endeavours to give five days' written
notice of suspension of the Game in the case of Support;
and
|
|
5.1.2
|
the
Developer will use all reasonable endeavours to give 24 hours' written
notice of suspension of the Game in the case of remedial faults which
have
been detected and which are likely to cause imminent failure of the
Game.
|
|
5.2
|
Notwithstanding
paragraphs 5.1.1 and 5.1.2 of this schedule 3, Ladbrokes acknowledges
that
in emergency situations, the Developer may not be able to provide
the
notice set out in those paragraphs, but shall provide as much notice
as is
reasonably practicable in the
circumstances.
|
ii
|
6.
|
training
|
|
6.1
|
The
Developer shall provide the training necessary to allow Ladbrokes'
employees (including without limitation, customer service, finance
and IT
personnel) to operate and manage the Game during Phase
II.
|
|
6.2
|
At
the option of Ladbrokes, the courses will be held on site in
Gibraltar.
|
|
7.
|
Escalation
|
Developer
technical contact: Mah-Jong
Systems Customer Service - tel 000 000 000 0000
Email: xxx@xxxxxxxxxxxx.xxx
Ladbrokes
technical contact: Xxxx
Xxxxxx
Mobile:
0000 (0)0000 000000
Telephone:
0000 (0)000 000 0000
Email:
xxxx.xxxxxx@xxxxxxxxx.xx.xx
If
the
above technical contacts are unable to agree the priority of a Condition, or
if
the Developer is, in the reasonable opinion of Ladbrokes, unable to resolve
a
Condition in accordance with the target response times set out in paragraph
4,
either party may escalate responsibility for managing the resolution of the
Condition to:
Xxxxxxx
Xxxxx: telephone: 00000 000 0000, email: xxxxxxx.xxxxx@xxxxxxxxxxxx.xxx on
behalf
of the Developer; and
Xxxx
Xxxxxx: telelephone 0000 (0)0000 000000, email: xxxx.xxxxxx@xxxxxxxxx.xx.xx
on
behalf of Ladbrokes
iii
THIS
AGREEMENT
has been
executed by or on behalf of the parties on the date at the top of page
1.
| EXECUTED as a deed but not | ) | |
| delivered until the date of this | ) | |
| Agreement by LADBROKES INTERNATIONAL | ) | |
| LIMITED acting by: | ) | |
| Director | ||
| Director/Secretary |
| EXECUTED as a deed but not | ) | |
| delivered until the date of this | ) | |
| Agreement by MAHJONG SYSTEMS LIMITED acting by | ) | |
| XXXXXXX XXXXX | ) | |
| Director | ||
_____________________________________
in
the
presence of:
_____________________________________
Witness's
Signature
_____________________________________
Name
_____________________________________
Address
_____________________________________
Occupation…
iv
