AMENDED AND RESTATED SALES REPRESENTATIVE AGREEMENT
Exhibit
10.2
AMENDED
AND RESTATED SALES REPRESENTATIVE AGREEMENT
THIS
AMENDED AND RESTATED SALES REPRESENTATIVE AGREEMENT (“Agreement”) is entered
into on October 11, 2006 between VENDINGDATA
CORPORATION,
a
Nevada corporation of
0000
Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx (“Principal”), and
ELIXIR GROUP LIMITED, a
Hong
Kong company of
38/F.,
the Centrium, 00 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxx Xxxx (“Elixir”).
RECITALS
A. Principal
and Elixir have previously entered into that certain Sales Representative
Agreement dated as of January 5, 2006 (the “Original Agreement”).
B. The
parties now wish to amend and restate the Original Agreement in its entirety
pursuant to this Agreement effective as of the date of this
Agreement.
AGREEMENT
The
parties hereto agree as follows:
Definitions
In
this
Agreement the following terms shall have the meanings set forth below unless
the
context clearly indicates the contrary:
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“Asia”
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means
all Cambodia, China, Goa, Guam, India, Japan, Kazakhstan, Korea,
Laos,
Macau, Malaysia, Myanmar, Mongolia, Nepal, Philippines, Saipan,
Singapore,
Russia, Sri Lanka, Tinian Islands, Taiwan, Thailand, Vietnam,
provided
that each of the forgoing are legal gaming jurisdictions at such
time, any
cruise ship based in any of these jurisdictions and all other
gaming
jurisdictions in Asia that subsequently become legal
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“Asia
Representative Agreement”
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means
the Asia representative agreement entered into between inter
alia, Elixir
and Shuffle Master dated 11 April 2006.
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“Elixir
Price”
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***
;
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“Elixir
(Macau)”
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means
Elixir Group (Macau) Limited, a company incorporated under the
laws of
Macau and the wholly-owned subsidiary of Elixir.
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“Designated
Members”
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means
: any casino (and includes where applicable the owner or operator
(or
their respective agents) of any such venue) in Macau that operates
under
the concession granted by the Macau government to SJM or any
sub-concession granted by SJM; and any other casino if SJM, STDM,
Melco or
the Melco-PBL JV have a direct or indirect legal or beneficial
interest of
at least 19.9% of the equity interest in the entity that owns,
manage or
operates that casino.
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***
Confidential Treatment Requested
1
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“Exclusive
Territory”
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means
Asia and any Designated Member no matter where located (subject
however to
clause 1.1 below).
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“Group”
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means,
in relation to any party, any subsidiary, associated company
or holding
company of the relevant party or any subsidiary or associated
company of
such holding company from time to time and “associated
company”
shall mean a company in which the relevant party and/ or its
holding
company has an interest (whether directly or indirectly and whether
aggregate or otherwise) of not
less than 20%
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“Hong
Kong”
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means
Hong Kong Special Administrative Region of the People’s Republic of
China
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“Intellectual
Property Rights”
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means
patents, trade marks, service marks, design rights (whether registrable
or
otherwise), applications for any of the foregoing, copyright,
know-how,
trade or business names and other similar rights or obligations
whether
registrable or not in any part of the world.
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“Melco”
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means
Melco International Development Limited
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“Melco
PBL JV”
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means
the joint venture established between Melco and Publishing and
Broadcasting Limited for pursuance of gaming, hospitality and
entertainment businesses in Asia
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“Macau”
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means
Macau Special Administrative Region of the People’s Republic of
China
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“Product(s)”
or “Service(s)”
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respectively
has the meaning as ascribed thereto in Clause
1.1 and
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or
“Products
& Services”
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Schedule
1 hereto
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“Representative”
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means
Elixir and its subsidiaries from time to time, which include,
but without
limitation to, Elixir (Macau)
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“Retail
Prices”
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means
the sales prices of the Products & Services determined by the
Representative for selling or providing the same to the clients
in the
Territory in accordance with Clause
3.4(d) below
.
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***
Confidential Treatment Requested
2
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“Sales
Target”
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means
the total target sales of the Principal’s chips in the Exclusive Territory
in terms of the Retail Prices of the Principal’s chips to be achieved by
the Representative during the Initial Term as more particularly
set out in
Schedule
2 hereto.
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“SJM”
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means
Sociedade de Jogos de Macau, S.A.
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“STDM”
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means
Sociedade de Turismo e Diversoes de Macau, S.A.
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“Term”
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means
the term of this Agreement which is more specifically defined
in
Clause
2.1 below and
“Initial
Term” has
the meaning as ascribed thereto in Clause
2.1
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“Wholesale
Prices”
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means,
for the purposes of this Agreement, the ex-factory cost price(s)
of the
Products & Services representing the labour and material costs and the
allocation of factory overhead costs and the administrative overhead
costs
that the Principal has actually incurred or accrued in accordance
with
generally accepted accounting principles, consistently applied,
in
manufacturing the Products and/ or providing the Services on
an open book
basis. The Wholesale Prices of the Products & Services as at the date
hereof are set out in Schedule
1 hereto
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| 1. |
Appointment
of Exclusive
Representative
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1.1
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Subject
to the terms and conditions of this Agreement, the Principal hereby
appoints the Representative and the Representative hereby accepts
such
appointment, as its sole and exclusive agent for promoting, selling
or
distributing its products and/ or services as more particularly
mentioned
in Schedule
1 hereto
(individually “Product(s)”
or
“Service(s)”
and collectively referred to as “Products
& Services”)
to clients or potential clients in the Exclusive Territory. If
the
Representative fails to achieve during two consecutive 12 month
periods
from the date hereof a pro rata portion of the Sales Target, then
Principal shall have the right by 60 days prior written notice
to Elixir
to terminate the exclusive distribution rights of Representative
in Asia
and convert Representative’s distribution rights hereunder to a
non-exclusive distribution right in Asia and an exclusive distribution
right to Designated Member only and in such case, the term “Exclusive
Territory”
used hereunder shall refer to Designated Member only. The parties
agree
that if necessary, they will re-negotiate and agree in good faith
about
the respective rights and obligations of the parties under clauses
1.2, 1.3 and 1.4
for the purposes of giving effect to the non-exclusive distributorship
rights of the Representative in Asia should such conversion occur.
For
illustration and the avoidance of doubt, a pro ratable portion
of the
Sales Target in the vent of a five year Initial Term shall be US$4
million
per 12 month period. In case the Representative’s distributorship rights
in Asia has been converted into a non-exclusive rights due to its
failure
to achieve the pro rata portion of the Sales Target for any two
consecutive 12 month periods but the Representative has successfully
achieved the overall Sales Target for the Initial Term, this Agreement
shall be renewed pursuant to clause 2.1 with the Representative
being
granted with the exclusive distributorship rights in Asia and to
the
Designated Member again for the renewal period. Notwithstanding
anything
to the contrary contained herein, save and except for the rights
of the
Principal to convert the Representative’s distributorship rights in Asia
from an exclusive basis to an non-exclusive basis, any non-achievement
of
the pro-rata portion of Sales Target during any two consecutive
12 month
periods by the Representative per se will not entitle the Principal
to
claim for any compensation or damages
hereunder.
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***
Confidential Treatment Requested
3
| 1.2 |
During
the Term of this Agreement, and subject to any change of the meaning
of
the term “Exclusive
Territory”
as mentioned in clause 1.1, the Principal undertakes that it will
not, and
will ensure that any member of the Principal’s Group, will not
:
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(a)
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appoint
any other third party as reseller, distributor or agent (whether
on an
exclusive basis or not) of similar rights or functions as conferred
on the
Representative hereunder in respect of the Products & Services in the
Exclusive Territory; or
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(b)
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either
solely or jointly with or on behalf of any other person directly
or
indirectly promote, sell or distribute the Products & Services in the
Exclusive Territory or procure, solicit or accept any purchase
order for
the Products & Services from any persons in the Exclusive Territory
except upon mutual agreement of the parties on a case by case
basis;
or
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(c)
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accept
any purchase order for the Products & Services from any persons in
wherever countries, regions or territories who, to the reasonable
belief
and / or knowledge of the Principal and/ or the relevant member
of its
Group, at the time of placing such order has intention to resell,
lease,
license or otherwise part with the possession of the relevant Products
& Services to other persons in the Exclusive Territory;
or
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(d)
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directly
or indirectly sell, provide or offer for sale or provide the Products
& Services to any persons in the Exclusive Territory or meant for
an
end user within the Exclusive Territory,
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except
through the Representative.
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1.3
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For
the avoidance of doubt, during the Term of this Agreement, and
subject to
any change of the meaning of the term “Exclusive
Territory”
as mentioned in clause 1.1, the Principal shall refer all clients
or
potential clients of the Products & Services in the Exclusive
Territory that come to its attention or the attention of any member
of its
Group to the Representative for handling.
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***
Confidential Treatment Requested
4
| 1.4 |
During
the Term of this Agreement, and subject to any change of the meaning
of
the term “Exclusive
Territory”
as mentioned in clause 1.1, the Representative undertakes that
it will
not, and will ensure that any member of the Representative’s Group, will
not :
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| (a) |
appoint
any other third party as reseller, distributor or agent (whether
on an
exclusive basis or not) of similar rights or functions as conferred
on the
Principal hereunder in respect of the Products & Services outside the
Exclusive Territory; or
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| (b) |
either
solely or jointly with or on behalf of any other person directly
or
indirectly promote, sell or distribute the Products & Services outside
the Exclusive Territory or procure, solicit or accept any purchase
order
for the Products & Services from any persons outside the Exclusive
Territory except upon mutual agreement of the parties on a case
by case
basis;
or
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| (c) |
accept
any purchase order for the Products & Services from any persons in the
Exclusive Territory who, to the reasonable belief and/or knowledge
of the
Representative and/ or the relevant member of its Group, at the
time of
placing such order has intention to resell, lease, license or otherwise
part with the possession of the relevant Products & Services to other
persons outside the Exclusive Territory;
or
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| (d) |
directly
or indirectly sell, provide or offer for sale or provide the Products
& Services to any persons outside the Exclusive Territory or meant
for
an end user outside the Exclusive Territory,
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except
through the Principal.
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1.5
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For
the avoidance of doubt, during the Term of this Agreement, the
Representative shall refer all clients or potential clients of
the
Products & Services outside the Exclusive Territory that come to its
attention or the attention of any member of its Group to the Principal
for
handling.
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1.6
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The
Representative hereby agrees with the Principal that during the
Term
hereof, the Representative and any member of Representative’s Group, shall
not promote, sell or distribute any products or services that are
competitive with the Products and Services from any supplier, distributor
or manufacturer in the Exclusive Territory except from the Principal.
For
the sake of clarity, the Principal shall be the exclusive supplier
of
Products and Services, (or any other equipment similar to or competitive
with the Products and Services,) to Representative or any member
of
Representative’s Group for promotion, sale or distribution in the
Exclusive Territory.
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| 2. |
Term
of Agreement
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| 2.1 |
Unless
otherwise terminated pursuant to the terms hereof, this Agreement
shall
continue and remain in force for an initial period of five years
(subject
to Clause
2.2 below)
(“Initial
Term”)
from the date hereof and thereafter, subject to the Representative
having
achieved the relevant Sales Target during the Initial Term, shall
be
automatically renewed on the same terms and conditions for a further
period of fifteen years. Subject to any earlier termination hereof,
the
Initial Term period together with any subsequent renewal thereof
shall
collectively be referred to as the “Term”.
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***
Confidential Treatment Requested
5
| 2.2 |
In
the event of any material breach or continuing material breach
(where
the breach is capable of remedy and the Principal has received
written
notice of the breach, but the Principal has failed to remedy the
same
within thirty days of written notice)
of
any terms, undertakings or warranties of this Agreement by the
Principal
at any time during the Initial Term (the “Questionable
Period”),
the Representative may, without prejudice to its other rights and
remedies
under this Agreement, by written notice to the Principal requiring
the
Initial Term of this Agreement to be extended by a further twelve
months
and for the purposes of determining whether or not the Representative
has
met the Sales Target, the Initial Term shall be deemed as six years
from
the date hereof and the Sales Target will remain unchanged notwithstanding
the said adjustment to the Initial
Term.
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2.3
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If
the overall Sales Target for the Initial Term is not met, then
unless
otherwise agreed by the Principal, this Agreement shall terminate
upon the
expiration of the Initial Term. Save for the rights on the part
of the
Principal to refuse an extension of this Agreement beyond the Initial
Term, any non-achievement of the Sales Target by the Representative
per se
will not entitle the Principal to claim for any compensation or
damages
hereunder.
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| 3. |
Obligations
of the Parties
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3.1
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The
Representative shall be responsible for using its commercially
reasonable
endeavours to:
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| (a) |
promote
and market (with the assistance of such materials and/ or support
provided
by the Principal as mentioned in Clause
3.2 below)
the Products & Services in the Exclusive Territory in
the same manner as it deals with the sale of its own product
range;
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| (b) |
sell,
distribute and solicit purchase order for the Products & Services to
and for clients in the Exclusive Territory;
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| (c) |
at
such time as the Representative deems appropriate, provide maintenance
and
support services of the Products (including but not limited to
telephone
support and on-site checking) in the Exclusive Territory; and
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| (d) |
collect
the relevant prices and charges of the Products & Services from
clients in the Exclusive Territory.
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3.2
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The
Principal shall be responsible for:
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(a)
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providing
all reasonable assistance to the Representative in connection with
its
performance of the obligations stated in Clause
3.1 above
in
a professional manner and in a timely fashion and which includes
but not
limited to :
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***
Confidential Treatment Requested
6
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(i)
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the
provision of reasonably adequate training to employees of the
Representative so as to enable them to understand the functionalities
and/
or components of the Products & Services and the correct operation
and/ or maintenance of the same;
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| (ii) |
preparation
and provision of relevant marketing materials provided that the
Representative shall have absolute discretion to determine whether
to
adopt the same or not; and
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| (iii) |
arrangement
and presentation of relevant demonstration of the Products & Services
to clients or potential clients identified by the Representative
in the
Exclusive Territory.
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| 3.3 |
Unless
otherwise agreed by the parties in writing, the parties acknowledge
and
agree that :
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(a)
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each
party shall bear its own costs and expenses and provide all staff
or
labour for performing its obligations in Clauses
3.1 and 3.2 above;
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(b)
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the
respective representatives of the parties shall meet at regular
intervals
(whether in person or by telephone conference) to discuss the market
conditions and requirements for the Products & Services in the
Exclusive Territory and if necessary, to review and adjust the
Wholesale
Prices and/ or the indicative price range of the Retail Prices
as
suggested by the Principal from time to time or on a case by case
basis,
with a view to facilitating the sales and promotion of the Products
&
Services in the Exclusive Territory;
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(c)
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neither
party shall make any public announcement on purchase order secured
by the
Representative or on details of work covered by such purchase order
without the other’s prior written approval (such approval not to be
unreasonably withheld), except as required by law provided that
in such
case, the party which is subject to such legal requirement shall
forthwith
inform the other party in writing of the contents and timing of
the
required disclosure; and
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(d)
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each
party shall promptly inform the other if it comes to its attention
that
the Products & Services may have infringed the Intellectual Property
Rights of a third party.
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| 3.4 |
In
addition to the above, the Principal agrees and/ or confirms that
:
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| (a) |
during
the Term of this Agreement, and subject to any change of the meaning
of
the term “Exclusive
Territory” as
mentioned in clause 1.1, it will include as a condition of sales
in the
relevant sales and purchase documentation restricting any of its
clients
in any other part of the world who purchase the Products after
the date of
this Agreement from reselling the same as second-hand products
to any
persons in the Exclusive Territory within a period of at least
18 months
from the date of delivery of the relevant
Products;
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| (b) |
during
the Term of this Agreement, it will shall keep the Representative
informed
of any changes to Products & Services and shall include the same as
the Products & Services covered by this Agreement and also it shall
keep the Representative informed of any change to the Wholesale
Prices
provided that in case of any material changes to the specifications
of the
existing Products & Services, any cessation of production or support
of any existing Products & Services or any increment to the Wholesale
Prices (provided that any such increment shall be reasonable in
the light
of the then prevailing market conditions and shall apply globally
to any
other distributors or agents of the Principal or its Group in other
part
of the world), the Principal shall give at least 60 days prior
written
notice to the Representative informing the same. For the avoidance
of
doubt, subject to the compliance of this sub-clause, the Principal
hereby
reserves the right to make any change to the specifications of
any
Products & Services or Wholesale Prices at any time and to discontinue
the manufacture or support of any Products & Services at any time
without incurring any obligation to the
Representative;
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***
Confidential Treatment Requested
7
| (c) |
the
Wholesale Prices that apply to the Representative shall not be,
to a
material extent, less favourable than the selling prices or charges
for
the same Products & Services quoted by the Principal or its Group to
any of their respective distributors or agents in other part of
the world;
and
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| (d) |
notwithstanding
anything to the contrary contained herein, the Representative shall
have
the rights to determine the Retail Price at its sole discretion
provided
that such Retail Prices must not be less than the lowest recommended
Retail Price within an indicative Retail Price range as may be
suggested
by the Principal from time to time or on a case by case basis.
When
determining the relevant indicative Retail Price range, the Principal
agree to make prior consultation with the Representative and take
into
account of factors related to the relevant order including but
not limited
to the quantity ordered by the client of the Representative, the
retail
prices offered by the Principal or its other distributor to their
respective clients outside the Exclusive Territory for comparable
quantity
ordered, and shall allow room for the Representative to grant reasonable
discount (whether by way of reduction in per unit price, rebate,
free unit
or otherwise) for bulk purchase by its clients in the Exclusive
Territory.
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| 4. |
Warranties
of the Parties
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| 4.1 |
The
Principal hereby represents and warrants to the Representative
that
:
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| (a) |
it
possesses the requisite authority to enter into and perform its
obligations under this Agreement, in particular but not limited
to, it has
the full, free and unrestricted rights to appoint the Representative
as
its sole and exclusive agent in the Exclusive Territory and that
all the
rights granted to Representative hereunder will not infringe any
rights,
claims or authorisations of any third party;
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(b)
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the
Products & Services and the promotion, sale and distribution of the
same to clients or potential clients in the Exclusive Territory
by the
Representative under the terms of this Agreement will not infringe
any
Intellectual Property Rights or other proprietary rights of any
third
party;
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(c)
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as
at the date hereof, the Principal or any of the member of its Group
is not
a party to any legal action or proceedings concerning the Intellectual
Property Rights of the Principal (or the relevant Group member(s))
in the
Products & Services or any part thereof and to the best knowledge of
the Principal, no claim has been made nor is there any such threatened
action or proceedings; and
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***
Confidential Treatment Requested
8
|
(d)
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save
for the appointment of the Representative hereunder, it or any
of its
Group member has not appointed any distributor or agent, whether
in the
Exclusive Territory or elsewhere, to promote, sell or distribute
the
Products & Services to any persons in the Exclusive
Territory.
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| 4.2 |
The
Representative hereby represents, warrants and covenants to the
Principal
that it
possesses the requisite authority to enter into and perform its
obligations under this Agreement, on its own behalf and on behalf
of each
member of Representative’s Group, and in particular but not limited to the
covenant and representation that it has the full, free and unrestricted
rights to act as the sole and exclusive agent in the Exclusive
Territory
for promoting, selling or distributing the Products and Services,
and that
all the rights, if any, granted to Principal hereunder will not
infringe
any rights, claims or authorisations of any third
party.
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| 4.3 |
The
Principal shall indemnify, defend and save harmless the Representative,
its Group and the directors, officers, employees, representatives
and
agents (either of the Representative or of any member of its Group)
from
and against all claims, lawsuits, losses and expenses arising out
of or
resulting from any breach or inaccuracy of the representations
or
warranties set out in Clause
4.1 above.
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| 4.4 |
The
Representative shall indemnify, defend and save harmless the Principal,
its Group and the directors, officers, employees, representatives
and
agents (either of the Principal or of any member of its Group)
from and
against all claims, lawsuits, losses and expenses arising out of
or
resulting from any breach or inaccuracy of the representations
or
warranties set out in Clause
4.2 above.
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| 5. |
Orders
and deliveries
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|
5.1
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Unless
otherwise agreed in writing by the parties hereto :
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| (a) |
all
orders for the Products & Services by the Representative shall be in
writing using the format prescribed by the Principal (the “Order
Form(s)”)
and shall be communicated to the Principal by facsimile or email;
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| (b) |
the
Order Forms shall contain details of the descriptions and quantities
of
the Products, scope of works of the Services, time line required
for
delivery which will incorporate allowance for published production
lead
times for each product, the designated port of delivery in the
Exclusive
Territory and the Wholesale Prices for the same;
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| (c) |
acceptance
of the Representative orders for the Products & Services will be by
way of a written acknowledgement via facsimile or email from the
Principal
to the Representative confirming the Order
Forms;
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***
Confidential Treatment Requested
9
| (d) |
in
case any part of the Order Form (including but not limited to the
required
delivery time) cannot be accepted by the Principal, the Principal
shall
forthwith inform the Representative of the same and its proposal
with
regard to the particular issue and in such case, the original Order
Form
shall lapse and have no effect and the Representative shall be
required
either (i) to issue a fresh Order Form with amended terms; or (ii)
to
amend the original Order Form with the relevant personnel(s) of
the
Representative initialled thereon and re-send the same to the Principal
by
facsimile or email;
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| (e) |
the
terms and conditions of each Order Form issued by the Representative
and
the terms of payment shall form part of this Agreement and the
terms of
this Agreement shall prevail in the event of any discrepancies
which may
arise between this Agreement and the relevant Order Forms or letter
of
credit as the case may be;
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| (f) |
subject
to sub-clause
(g) and Clause 14.8 below,
time shall be of the essence in respect of the required delivery
time set
out in the accepted Order Form; and
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| (g) |
Unless
otherwise agreed by the parties in writing, all Products shall
be deemed
delivered to the Representative upon the same being delivered on
board the
vessels or aircrafts at the shipping port or flight terminal of
the
manufacturing place of the Products and the title and risk of the
Products
shall also pass to the Representative upon the time of such deemed
delivery.
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| 5.2 |
Upon
acceptance of the Order Form by the Principal pursuant to Clause
5.1(c) above,
that Order Form shall become binding and shall not be subject to
cancellation or change by the Representative, either in whole or
in part
unless the request for cancellation or change is made by written
notice of
not less than 14 days after submission of the Order Form to the
Principal.
The Principal shall deliver the Products to the relevant shipping
port or
flight terminal on or before the delivery date set out in the Order
Form.
The Wholesale Prices for Products shall be quoted F.O.B. the shipping
port
or flight terminal of the manufacturing place of the
Products.
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| 5.3 |
The
Principal agrees to use its best endeavours to accept all purchase
orders
issued by the Representative from time to
time.
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| 5.4 |
Following
delivery (or deemed delivery) of Products in respect of the first
and
second Order Forms, the Principal shall, at its costs, make a
senior
factory technician available to the Representative for a period
of up to
five (5) days each time to install the Products at the relevant
client’s
premises, and to teach the Representative’s technical personnel about the
mode of installation of the Product(s) and to conduct a general
Product
familiarisation programme for such technical personnel nominated
by the
Representative.
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| 6. |
Payment
Terms
|
| 6.1 |
All
payments owed to Principal by Representative hereunder will be
settled by
way of an Irrevocable Letter of Credit in favour of the Principal
drawn on
a bank reasonably acceptable to the Principal or by wire transfer
directly
to the Principal’s account, unless otherwise agreed by the parties hereto
in writing.
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***
Confidential Treatment Requested
10
| 6.2 |
The
Representative shall pay the Wholesale Price plus all shipping,
handling
and insurance costs, as applicable, to the Principal in the manner
prescribed by Clause 6.1 prior to shipment of the
Product.
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| 6.3 |
On
the tenth day of each month (“Statement
Date”),
Representative shall send to Principal, via email to an email address
designated by Principal, a truthful and accurate written statement
(“Statement”)
of Representative’s sales for the previous monthly period, listing the
names and addresses of each of Representative’s customers (end-users), the
amount of each sale, and the total amount to be charged to customer
for
the Products and Services (if different from the sale price).
|
| 6.4 |
Within
10 days from the Statement Date, the Representative shall pay to
the
Principal the Elixir Price for each of Representative’s sales for the
previous monthly period, minus the Wholesale Price for such Products
and
Services if the Wholesale Price has already been
paid.
|
| 6.5 |
As
to any Statements and payments to be made pursuant to this Agreement,
time
is of the essence.
|
| 7. |
Intellectual
Property Rights
|
|
7.1
|
Subject
to Clause
7.2 below,
the Representative acknowledges that any and all of the Intellectual
Property Rights used or embodied in or in a connection with the
Products
& Services or any other software, programs or materials independently
developed by the Principal and provided to the Representative or
its
clients during the Term is and shall remain the property of the
Principal
and/ or its Group unless otherwise indicated in writing by the
Principal.
|
| 7.2 |
The
parties agree that during their respective performances of any
obligations
herein, all of the Intellectual Property Rights used or embodied
in any
software, programs or materials
:
|
| (a) |
developed
by the Principal and/ or the Representative and such software,
programs or
materials form an integral part or components of the Products
&
Services, shall belong to and remain the absolute property of
the
Principal; and
|
|
(b)
|
developed
solely by the Representative and such software, programs or materials
can
be used or operated independently from the Products and/ or Services
or
any part of any of them, shall belong to and remain the absolute
property
of the Representative;
|
provided
that
:
|
(i)
|
in
case the owner of the relevant Intellectual Property Rights is
the
Principal, the Principal shall grant a non-transferable license
at no cost
to the Representative for a term lasting until the termination
of this
Agreement to use the relevant newly developed software, programs
or
materials as such use is to facilitate the promotion, selling and
distribution of the Products & Services by the Representative in the
Exclusive Territory;
|
***
Confidential Treatment Requested
11
|
(ii)
|
in
case the owner of the relevant Intellectual Property Rights is
the
Representative, the Representative shall grant : (aa) a non-transferable
license at no cost to the Principal for a term lasting until the
termination of this Agreement to use the relevant newly developed
software, programs or materials as such use is to facilitate the
promotion, selling and distribution of the Products & Services by the
Representative in the Exclusive Territory; and (bb) a non-transferrable
license at such license fee to be agreed between the parties, to
the
Principal for a term lasting until the termination of this Agreement
to
use the relevant newly developed software, programs or materials
as such
use is to facilitate the promotion, selling and distribution of
the
Products & Services by the Principal or its other distributors in any
place outside the Exclusive Territory;
and
|
|
(iii)
|
after
termination of this Agreement, if the Principal so requires, the
Representative shall on terms which are not more onerous than the
terms of
the original license mentioned in section
(bb) of sub-clause (ii) above,
grant an extension of such license to the Principal for such duration
to
be agreed.
|
| 7.3 |
Both
parties agree to execute such further documents and to do all such
acts as
shall be reasonably required under the relevant circumstances to
effectively carry out the terms set out in Clause
7.2 above
in
any relevant jurisdiction.
|
|
7.4
|
During
the Term of this Agreement, the Representative shall have the rights
to
use the Principal’s trademarks in promoting the sales of Products &
Services in the Exclusive
Territory.
|
|
7.5
|
The
Representative agrees to comply with the instructions issued by
the
Principal relating to the form and manner in which the Principal’s trade
name and trademarks are used.
|
|
7.6
|
The
Representative agrees to discontinue upon notice from Principal
any
practice or use of the trademarks that might adversely affect the
rights
or interest of the Principal in its
trademarks.
|
| 8. |
Products
warranty
|
|
8.1
|
All
Products supplied by the Principal shall carry return to factory
warranty
against faulty parts manufacture and workmanship. Such warranty
period
shall commence upon shipment and last for ten years. The said warranty
will not apply to consumables, fair wear and tear or wilful damage.
|
|
8.2
|
THE
PARTIES ACKNOWLEDGE THAT THE PRINCIPAL MAKES NO WARRANTIES OR
REPRESENTATIONS, INCLUDING BUT WITHOUT LIMITATION TO IMPLIED WARRANTIES
OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS TO THE
PRODUCTS
SOLD TO THE REPRESENTATIVE EXCEPT FOR THE PRODUCTS WARRANTY STATED
IN OR
AS MAY BE SET FORTH IN OTHER CONSUMER WARRANTY PROVIDED BY THE
PRINCIPAL
IN SEPARATE WRITING, IF ANY, ACCOMPANYING DELIVERY OF THE
PRODUCTS.
|
***
Confidential Treatment Requested
12
|
8.3
|
THE
LIABILITY OF THE PRINCIPAL, IF ANY, FOR DAMAGES RELATING TO ANY
ALLEGEDLY
DEFECTIVE PRODUCTS OR ANY BREACH OF WARRANTY OR CONDITION IN RELATION
TO
THE PRODUCTS WILL BE LIMITED TO, AT THE REPRESENTATIVE’S DISCRETION,
REPLACEMENT OF THE PRODUCTS OR REFUND OF THE ACTUAL PRICE PAID
FOR SUCH
PRODUCTS.
|
| 9. |
Termination
|
| 9.1 |
Either
party shall be entitled to terminate this Agreement by serving
immediate
written notice to the other if:-
|
|
(a)
|
the
other party is in material breach of any terms of this Agreement
and,
where the breach is capable of remedy, the other party has failed
to
remedy the breach within
30 days
of
the date of a written notice from the non-defaulting party specifying
the
breach and requiring its remedy; or
|
| (b) |
the
other party goes into liquidation (except for the purpose of a
bona fide
reconstruction or amalgamation) or bankruptcy or it shall become
insolvent
or enter into any composition or scheme of arrangement with its
creditors;
or.
|
| (c) |
pursuant
to Clause
16.4 below.
|
| 9.2 |
In
addition to Clause
9.1,the
Representative shall be entitled to terminate this Agreement
without cause
by giving 30 days advance notice in writing to the
Principal.
|
| 9.3 |
Each
party acknowledges that the breach of certain provisions of this
Agreement
may cause irreparable harm to the other for which monetary damages
may be
difficult to ascertain or an inadequate remedy. Each party therefore
agrees that the other will have the right, in addition to its other
rights
and remedies, to seek and obtain an order for specific performance
or
injunctive relief.
|
| 10. |
Obligations
and rights following
termination
|
| 10.1 |
Upon
termination of this Agreement for any reason or expiration of the
Term:
|
|
(a)
|
each
party shall return all Confidential Information (as defined in
Clause
11 below)
which belong to the other party;
and
|
|
(b)
|
the
Representative shall cease promoting, selling and distributing
the
Products & Services and shall cease using the Principal’s trade name
and trademarks.
|
|
10.2
|
Any
termination or expiration of this Agreement shall be without prejudice
to
any rights or liabilities of either party to the other party accrued
at
the date of termination or expiration or in respect of any breach
of the
other party of any conditions herein contained or any amount owing,
due or
payable under this Agreement.
|
***
Confidential Treatment Requested
13
|
10.3
|
Any
terms or conditions of this Agreement which are capable of
having effect
after the termination or expiration of this Agreement shall
remain in full
force and effect following the termination or expiration of
this
Agreement.
|
|
10.4
|
Within
14
days
after any termination or expiration of this Agreement, the Representative
shall by written notice inform the Principal of its stock of the
Products
on hand at the time of such termination or expiration and the Principal
agrees to repurchase the same at the original Wholesale Prices
thereof
from the Representative and pay the Representative for the same
within
one
month
from the date of such notice. All transportation and insurance
costs for
such repurchase shall be borne by the Principal unless the termination
is
due to a breach of this Agreement by the Representative and the
relevant
Products shall be deemed delivered by the Representative to the
Principal
at the relevant shipping port or flight terminal in the Exclusive
Territory as notified by the Representative.
|
| 11. |
Confidentiality
|
|
11.1
|
Each
of the Principal and the Representative hereby agrees and undertakes
to
the other party that during the subsistence of this Agreement and
for a
period of two
(2) years thereafter,
it will keep confidential and will not use for its own purposes
or without
the prior written consent of the other party disclose to any third
party
any and all information concerning the terms of this Agreement
or the
business, affairs or trade secrets of the other party or its Group
members
which is confidential and proprietary to that disclosing party
(collectively “Confidential
Information”)
and which may become known as a result of the performance of this
Agreement. This Clause shall not however apply to
:
|
|
(a)
|
disclosures
required by law, statutory bodies or regulatory authorities;
or
|
|
(b)
|
disclosures
to employees, agents or contractors who have a need to know and
only to
the extent necessary for each of them to perform his
duties;
|
|
(c)
|
disclosure
or use of any information which is in or enters the public domain
other
than by breach of this Agreement;
|
|
(d)
|
disclosure
or use of any information which is independently developed by the
relevant
party as evidenced by written records;
or
|
|
(e)
|
disclosure
or use of any information which is received in good faith by one
party
from a third party not subject to a duty of confidentiality.
|
|
11.2
|
Each
party undertakes to the other to take all reasonable steps as shall
from
time to time be necessary to ensure compliance with the provisions
of this
Clause by its (and/ or its Group members’) employees, agents and
sub-contractors.
|
| 11.3 |
For
the avoidance of doubt :
|
***
Confidential Treatment Requested
14
|
(a)
|
The
parties agree that the
contact details
of
any client or any potential client that has been procured, solicited
or
contacted by Representative and which details or information have/has
come
to the possession of the Principal and/ or the Representative during
the
Term shall not be regarded as part of the Confidential Information
and the
relevant party who possess the same shall be free to use such details
or
information for pursing its own business after
the termination or expiration of this Agreement subject
always
to
the compliance with the obligations in this Clause
11
in
respect of the Confidential Information of the other party and
in
Clause
13 below
in
respect of Non-Competition.
|
|
(b)
|
The
Representative acknowledges that for regulatory purposes the Principal
is
required to maintain information concerning the original end user
of the
Products sold by the Representative and the Representative agrees
to
cooperate with Principal in supplying this information provided
that the
extent of such information as required by the Principal must not
exceed
the relevant regulatory requirement and if so required by the
Representative, the Principal shall provide reasonable supporting
documents of such regulatory
requirement.
|
| 11.4 |
Neither
party shall make any public announcement on the execution, existence
or
terms of this Agreement without the other’s prior written approval (such
approval not to be unreasonably withheld), except as required by
law
provided that in such case, the party which is subject to such
legal
requirement shall forthwith inform the other party in writing of
the
contents and timing of the required
disclosure.
|
| 12. |
Non-Solicitation
|
Except
with the express written consent by the other party, each party covenants
with
the other that it will not and ensure none of the members of its Group will,
during the Term of this Agreement and for a period of two years thereafter,
on
its own behalf or on behalf of any person, firm or company, directly or
indirectly endeavour to entice away from the other party and/or employ any
person who is or was the other party’s employee or who has at any time during
the two-year period immediately preceding the termination or expiration of
this
Agreement been employed or engaged by the other party.
| 13. |
Non-Competition
|
The
Principal covenants with the Representative that it will not and will ensure
that none of the members of its Group will, within the Exclusive Territory,
and
during the Term of this Agreement , either alone or jointly with or as manager,
agent, consultant or employee of any person, firm or company, directly or
indirectly, carry on or be engaged in any activity or business for or in
connection with the promotion, sales, distribution or provision of the Products
& Services or restrict the rights of the Representative from doing business
at the same time.
***
Confidential Treatment Requested
15
| 14. |
Miscellaneous
|
|
14.1
|
Any
written notice required to be given hereunder or request, demand
or other
communication under this Agreement or in connection herewith may
be given
by facsimile or email, by personal delivery or by sending the same
by
pre-paid post to the office address stated above or other address
notified
to the other. For the purpose of this Agreement, the facsimile
number and
the email address of the respective parties are as follows :
|
|
The
Principal
|
Xxxx
X Xxxxxxx
|
|
Facsimile
no.
|
: x0 000-000-0000 |
|
Email
address
|
: xxxxxxxx@xxxxxxxxxxx.xxx |
.
|
The
Representative
|
Xxxxxx
Xxxx
|
|
Facsimile
no.
|
: (853)755 165 |
|
Email
address
|
: xxxxxxxxxx@xxxxxx.xxx.xx |
|
14.2
|
Any
notice so given pursuant to Clause
14.1 above
shall be deemed to have been served at the time the facsimile or
email is
recorded as sent, at the time of personal delivery or on the 5th
day after the day on which it was
posted.
|
|
14.3
|
This
Agreement sets forth the entire understanding and agreement between
the
parties with respect to the subject matter herein, and supersedes
and
cancels any prior or otherwise oral or written, expressed or implied
agreements, warranties or representations, if any, between the
parties
hereto. No party shall make any amendment or modification to the
terms of
this Agreement unless the same is in writing and signed by the
other
party.
|
|
14.4
|
Neither
party may assign, sub-contract, or delegate all or any part of
its rights
or obligations pursuant to this Agreement without the prior written
consent of the other.
|
| 14.5 |
All
headings to clauses herein are inserted for convenience only and
shall not
affect the construction of this Engagement. Words importing the
singular
number shall include the plural and vice versa and a gender shall
include
all genders and the neuter.
|
| 14.6 |
If
any one or more of the provisions of this Agreement shall be held
to be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be
affected or impaired thereby.
|
|
14.7
|
The
Representative is an independent contractor of the Principal. Nothing
in
this Agreement shall be construed as creating a partnership or
joint
venture relationship between the
parties.
|
|
14.8
|
No
party hereto will be liable for any failure or delay in performance
hereunder other than to make payment of the amounts due as a result
of any
contingency beyond its reasonable control including but not limited
to
acts of God, fires, floods, wars, sabotage, lockouts, labour disputes
or
any other labour difficulties, any legislations, government rules
or
regulations, inability to obtain supplies, energy, raw materials,
product,
equipment or transportation and any other similar or different
contingency. The party suffering the inability to perform will
notify the
other party of the existence of such delay within 7 days of the
first day
of such delay that comes to its knowledge and in such event the
time for
performance hereunder (except to make payment of amounts due) will
be
extended for a period equalling the total period of such
delay.
|
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Confidential Treatment Requested
16
|
14.9
|
Any
failure to either party to enforce at any time or for any period
of time
any of the provisions under this Agreement will not be construed
as a
waiver of such provisions or of the right of such party thereafter
to
enforce each and every provision under this
Agreement.
|
| 15. |
Governing
Law
|
This
Agreement shall be governed by the laws of the State of Nevada, USA, except
for
conflicts of law provisions. The parties submit to the exclusive jurisdiction
of
the courts of Nevada.
|
16.
|
Gaming
Regulations
|
|
16.1
|
Regulated
Industry. The parties acknowledge that gaming is a highly regulated
industry throughout the world, and that both parties wish to comply
with
the gaming regulations of any legitimate
jurisdiction.
|
|
16.2
|
Compliance
Program. Each Party and its Group members are licensed by or otherwise
may
be subject to the authority of various casino and gaming regulatory
agencies (“Regulators”). Each Party has adopted, if applicable, a
regulatory compliance policy, and each Party agrees to provide
the other
Party with such documentation, information and assurances regarding
itself, any principal employees, directors, officers, brokers,
agents or
others as may be reasonably necessary in order for each party to
comply
with the other party’s regulatory compliance policy and with the requests
or requirements of any Regulator.
|
|
16.3
|
Due
Diligence. Representative shall, upon request of Principal, complete
Principal’s due diligence forms to Principal’s sole satisfaction
certifying Representative’s compliance with relevant gaming laws and
regulations and shall update such forms when reasonably requested
to do so
by Principal and at least annually (if so required by the applicable
laws
or regulations). Both prior to and after the execution of this
Agreement,
Principal shall have the right to perform due diligence on the
Representative or any of its approved sub-distributor in respect
of the
Products & Services as required by any gaming regulators in those
jurisdictions in which Principal is licensed. On an ongoing basis,
Representative (and any of its approved sub-distributors in respect
of the
Products & Services) shall be obligated to reasonably cooperate with
Principal related to such due
diligence.
|
***
Confidential Treatment Requested
17
|
16.4
|
Termination
For Regulatory Reasons. This Clause
16
is
a fundamental obligation of each party. This Agreement may be terminated
by either party immediately (without a cure period) after the occurrence
of the following events:
|
| (a) |
a
finding by an appropriately empowered regulatory body, in the jurisdiction
of the relevant transaction or any other jurisdiction, that a Party
is not
suitable to be engaged in gaming
activities;
|
| (b) |
an
order or recommendation by any Gaming Authority requiring or recommending
termination of this Agreement; or
|
| (c) |
the
reasonable belief of one party that the continuation of this Agreement
may
have a detrimental impact on the ability of that party or any of
its Group
members to be qualified for, or to hold or maintain, any gaming
related
licenses, permits or approvals issued or to be issued by an Gaming
Authority,
|
provided
that the termination notice given by either party under this Clause
16.4
shall be
accompanied by reasonable details in writing regarding any such finding,
order
or belief (as the case may be) and if the circumstances so allow and upon
the
request of the other party, the party which has relied on this provision
in
giving the termination notice shall, at the cost of the other party, assist
the
other party in contesting against the relevant finding or order or rebutting
the
relevant belief.
| 17. |
Additional
Products. Representative
agrees to evaluate in good faith the opportunity to distribute
those
products of Principal which are not included in the Products and
Services
listed in this Agreement, and to use its reasonable endeavours
to complete
its due diligence investigation of those products within six months
of the
execution of this Agreement.
|
|
Signed
on behalf of
|
Signed
on behalf of
|
|||
|
ELIXIR
GROUP LIMITED
|
VENDINGDATA
CORPORATION
|
|||
|
By:
|
/s/
Xxxx Van Tak
|
By:
|
/s/
Xxxx X. Xxxxxxx
|
|
|
Name
:
|
Xxxxx
Van Tak
|
Name:
|
Xxxx
X Xxxxxxx
|
|
***
Confidential Treatment Requested
18
Schedule
1
Descriptions
of Products & Services
Subject
to the applicable references of this Agreement, set out below are the Products
& Services and the Wholesale Price thereof as at the date of this Agreement
:
|
Products
|
Wholesale
Price (per unit)
|
|
|
Principal’s
chips, and plaques (including RFID enabled chips and plaques) and
chip
washers and any
new products developed or sold by Principal that are not sold by
Principal
in direct competition with any product that the Representative
distributes
at the relevant time. The term “Products” shall never include (i) the
Principal’s shuffler,
deck checking or verification devices, (ii) any Competitive Products
(as
that term is defined in the Asia Representative Agreement) the
sale of
which by Elixir or an member of its Group would violate Section
5.7 of the
Asia Representative Agreement, or (iii) any other products that
Elixir or
any members of its Group is prohibited from distributing in the
Exclusive
Territory by law or an contract entered into by Elixir or any member
of
its Group.
|
The
Principal will provide the Representative the Wholesale price for
each
particular order base upon the specific customization requirements
for
that particular order taking into consideration factors affecting
the cost
including but not limited to size of the chip, number of colours,
other
option features, lead times and shipment methods. Such Wholesale
price
shall be provided immediately prior to the relevant order being
placed
|
|
|
Services
|
||
|
customisation
or modification of the Products
|
To
be determined on a case by case basis
|
|
|
maintenance
and support services for the Products
|
To
be determined on a case by case basis
|
|
|
|
Schedule
2
Sales
Target
|
Relevant
period
|
Sales
Target of Principal’s chips
|
|
|
Initial
Term
|
US
$20,000,000
|
***
Confidential Treatment Requested
19
