INTERACTIVE SERVICE AGREEMENT
(GAMING CHANNEL)
This Interactive Service Agreement (the "AGREEMENT"), is made and
effective as of this 6th day of November, 2003, by and between
(1) ZONE4PLAY INC. ("PROVIDER"), having a principal place of business at 000
Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, XXX.
And;
(2) RCN TELECOM SERVICES OF ILLINOIS, LLC ("NETWORK"), having a principal place
of business at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
RECITALS
A. Network operates a video programming service in the USA and desires to
offer its customers an interactive programming service consisting of an
interactive menu and a games package including casino games (hereinafter
the "SERVICE") as outlined in Exhibit A; and
B. Provider desires to provide the Service and the application software (the
"SOFTWARE Application") as outlined in Exhibit A to Network necessary to
run the Service on NDS HTML Core middleware platform;
NOW, THEREFORE, in consideration of the mutual promises and the covenants
hereinafter set forth, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, Provider and Network agree as
follows:
1. RIGHTS.
(a) Provider hereby grants to Network the non-exclusive right to
distribute the Service to customers of Network ("NETWORK
SUBSCRIBERS") within THE Territory as specified in Exhibit B (the
"TERRITORY"). The rights granted to Network hereunder shall include
the right to offer the Service and the option to set a retail price
as provided for under the terms of this Agreement and as referred to
in Exhibit B.
(b) Provider grants to Network under the terms and conditions of this
Agreement, a non-exclusive license to: (i) install the Software
Application on any equipment, or in a set-top box capable of
receiving digital cable services (a "Digital Box ") necessary to
enable the receipt, decoding and use of the Service by Network
Subscribers; (ii) use the Software Application as provided for
elsewhere in this Agreement; and (iii) if applicable, authorize
others to use the Software Application in connection with their
purchase, lease or use of a Digital Box.
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2. TERM. Unless earlier terminated pursuant to the terms of this Agreement,
this Agreement shall commence on the date first written above and shall
continue for three (3) years (the "TERM") from the date the Service is
first delivered by Network to subscribers on a commercial basis. Network
shall launch Provider's application not later than 1 (one) month from the
acceptance and completion of all testing to the complete satisfaction of
Network.
3. DELIVERY AND DISTRIBUTION OF THE SERVICE.
(a) Subject to the acceptance and completion of all testing to the
complete satisfaction of Network, Network shall, at its sole cost
and expense, transmit the Service, to the Network Subscribers.
Network shall determine how to package the Service. Network
Subscribers who receive the Service shall be known as "SERVICE
SUBSCRIBERS"
(b) Service Integrity. Provider agrees to deliver the Service to
Network's facility as directed by Network, error free. Any errors in
the Service shall be corrected by Provider at no cost to Network in
accordance with the SLA provided hereunder and referred to as
Exhibit C.
(c) Technical Contact. See Exhibit A.
4. DEVELOPMENT OF THE SOFTWARE APPLICATION.
(a) Provider shall deliver Software Application that meets Network's
standard application development guidelines.
(b) Provider shall provide Network the Software Application prior to
launch of the Software Application for testing and approval.
Provider shall provide Network notice of all Software Application
changes and versions in a timely manner, but in no event later than
such notice is provided to other networks to whom the Software
Application is provided.
5. FEES; PAYMENTS; AUDIT RIGHTS.
5.1 CONSIDERATION
In consideration for Provider's Software Applications, Network shall
pay Provider as follows: 5.1.1 for an initial `package' of Casino
Games, as defined in Exhibit A, that Network shall receive from
Provider, Network shall pay Provider the sum of US$95,000.
5.1.1.1 of the above sum of US$95,000 - 50% shall be paid upon
the signing of this agreement, an additional 30% at
the successful completion of testing of Phase I
Software Application, an additional 10% at the
successful completion of testing of Phase II Software
Application, the final 10% at the successful
completion of testing of Phase III Software
Application,
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5.1.2 for maintenance and support provided for the Service by
Provider pursuant to this Agreement and it's exhibits, Network
shall pay Provider the sum of US$6,000 annually.
5.1.2.1 of the above maintenance fee of US$6,000 - the sum of
US$3,000 shall be due upon the commercial launch of
the Service the remainder US$3,000 shall be paid
following 12 months of active commercial service, (the
first "Service Year"). Balances due against payments
for each subsequent Service Year shall be paid at the
end of each such Service Year. In addition,
maintenance shall include unlimited changing of
versions to work with the NDS Core software provided
that in no event should functionality of the service
be diminished or less than that provided to any other
network.
5.1.3 Provider shall offer any new game(s) to Network at an agreed
upon price which shall be no greater than the price charged to
other networks. Network shall pay for any new game(s) upon
acceptance of game(s) following successful testing. Any new
game(s) shall be included under the maintenance arrangement
set forth in this Agreement at no additional cost to Network
5.2 SERVICE REVENUES.
(a) "Reporting Period" means the period of one calendar month, as
such Reporting Period may change from time to time by mutual
agreement of the parties.
(b) "Service Revenues" for a particular Reporting Period shall be
calculated according to Exhibit B.
(c) "Audit Rights." In order to verify the compliance with or
determine whether full effect has been given to the provisions
of this Agreement, Provider shall have the right, during the
Term and for one (1) year thereafter, to use an independent
auditor to inspect and audit at the offices of the audited
party during normal business hours all relevant books and
records, upon reasonable written notice to Network, of not
less than thirty days. Provider's right to perform such audit
shall be limited to once in any consecutive twelve (12)-month
period. All audits shall be subject to the confidentiality
provisions set forth in Section 13 below. In the event of an
undisputed discrepancy between Service Revenues paid and
Service Revenue owed Network shall reimburse Provider for its
reasonable audit costs. Any claims not brought within 90 days
of the completion of Audit fieldwork shall be deemed waived.
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5.3 SERVICE REVENUE SHARE. Further to the fees detailed in Exhibit B',
the parties agree to split the Service Revenues. Network shall be
entitled to retain Fifty percent (50%) of collected gross Service
Revenues net of local, state and federal taxes and any applicable
franchise fees ("Taxes"), other than Taxes calculated on the basis
of net income, and Provider shall be entitled to retain Fifty
percent (50%) of such Service Revenues from the previous Reporting
Period. For avoidance of doubt, Provider shall receive an amount
that is not less than 50% of the Retail Price.
5.3A SERVICE SUBSCRIBER PRE-REGISTRATION FEE. Network shall pay the
Provider pre-registration fee for each Subscriber according to
section (b) of Exhibit B (Price Schedule).
5.4 RETAIL/COMMERCIAL PRICES OF SERVICE. The retail price for a
single-family residential subscription to the Service as well as
commercial establishments (public and private) and bulk-billed
consumers shall, from time to time, be established by Network, upon
its acquaintance with the local market. (the "RETAIL PRICE" and
"COMMERCIAL PRICE"), as set forth in the Retail Price, Bulk Billed
Price/Rate Schedule, attached hereto and incorporated herein,
identified as Exhibit B.
5.5 LATE PAYMENTS AND DUE DATES. (a) Provider's share of Service
Revenues accrued during a given Reporting Period shall be paid by
Network no later than Thirty (30) days after the end of the calendar
month in which the Reporting Period ends.
(b) Any Payment not made within thirty (30) days after it is due shall
accrue interest at the rate of one percent (1%) per month,
compounded monthly from the date such amount is due, until paid in
full.
6. PAYMENT AND REPORTS
Within thirty (30) days after the end of the calendar month in which the
relevant Reporting Period ends, Network shall remit payment to Provider in US
dollars to Provider's principal place of business pursuant to Section 5.3 above
and Exhibit B and shall supply to Provider reporting reasonably necessary to
calculate and substantiate such payments. All payments shall be made based on
average counts calculated by adding the relevant count as of the beginning of
the month to the relevant count as of the end of the month and dividing the
resultant sum by two. Network reporting shall include; (i) the total number of
Network Subscribers as of the first and last day of the relevant Reporting
Period, (ii) the total number of Service Subscribers as of the first and last
day of the relevant Reporting Period and (iii) if applicable, the total number
of Service Subscribers as of the first and last day of the relevant Reporting
Period who are paying a Retail Price for the Service, and the Retail Price paid
by such Service Subscribers, and (iv) if applicable, the total number of
Commercial Subscribers as of the first and last day of the relevant Reporting
Period who are paying a Retail Price for the Service, and the Retail Price paid
by such Commercial Subscribers. Provider may not employ such information for its
own purposes, without the prior written permission of Network which may be
granted by Network at its discretion.
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7. MARKETING; SALES; AND ADVERTISING.
(a) Network shall be responsible for receiving and processing orders for
the Service, billing and collecting payment, if any, from Service
Subscribers, and the authorization and de-authorization of Network
Receivers to receive the Service. Network shall market and promote the
Service in a similar manner as it markets and promotes other services. The
parties may use each other's trademarks to market the Service to customers
upon the prior written consent of the other party.
(b) Press Releases. Both parties shall work in agreement to generate
favorable PR for the service. Both parties shall inform the other of
intended PR.
(c) Both parties will work to attract sponsorship and advertising to the
Service. Both parties shall be entitled to sell such sponsorship and
advertising subject to the prior written consent of the other. The parties
shall be entitled to the revenue generated by such sale of sponsorship
and/or advertising in accordance with Exhibit B.
8. INTELLECTUAL PROPERTY RIGHTS
All rights, title and interest, including Intellectual Property Rights, in the
Software Application belong to Provider. Network shall not acquire or claim any
right or title to any of the foregoing by virtue of the rights granted under
this Agreement. All rights, title and interest, including Intellectual Property
Rights, in the Software Application and/or source code, which belongs to
Provider. Network shall not acquire or claim any right or title to any of the
foregoing by virtue of the rights granted under this Agreement. Network warrants
that it shall not make use of the said Intellectual Property and/or source code
for any purpose other than that mentioned herein. Network further warrants that
it shall during the Term and at all times thereafter treat all of Provider's
intellectual property as strictly confidential, and will not directly or
indirectly disclose such intellectual property or directly or indirectly use, or
permit any others to use, any such intellectual property for any purpose.
Furthermore, Network shall secure, protect and preserve reasonable security and
confidentiality measures and procedures in safekeeping the Intellectual Property
and source code and/or all other confidential information related thereto.
9. REPRESENTATIONS AND WARRANTIES.
(a) Mutual Representations, Warranties and Covenants. Each party represents and
warrants to the other that (i) it is duly organized, validly existing and in
good standing under the laws of the state under which it is organized, (ii) it
has the power and authority to enter into this Agreement and to perform fully
its obligations hereunder; (iii) it is under no contractual or other legal
obligation that shall in any way interfere with its full, prompt and complete
performance hereunder; (iv) the individual executing this Agreement on its
behalf has the authority to do so; (v) it presently has and will continue to
have at all times during the Term all rights necessary to grant to the other
party the right to use it's trademarks, service marks, logos and related trade
usages as permitted hereunder; and (vi) the obligations created by this
Agreement, insofar as they purport to be binding on it, constitute legal, valid
and binding obligations enforceable in accordance with their terms.
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(b) Representations, Warranties and Covenants as to Content. Provider
represents, warrants and covenants to Network that: (i) Provider presently has
and will continue to have at all times during the Term all rights necessary to
grant Network the rights contracted for by Network under this Agreement,
including without limitation the rights to transmit, transport and otherwise
distribute the Service and the rights to activate and deactivate subscriptions
to the Service; (ii) the Service and/or Software Application shall not contain
any material which violates or infringes any patent, copyright, right of
privacy, literary or dramatic right or any other intellectual property right of
any person or entity; (iii) the Service content will not violate any gambling or
gaming laws; and (iv) Provider presently is and will remain at all times during
the Term in full compliance with all applicable local, state and federal laws,
rules and regulations, including but not limited to import/export laws.
(c) The representations, warranties and covenants contained in this Section 9
shall continue throughout the Term and the indemnities shall survive the
termination of this Agreement, regardless of the reason for such termination.
10. INDEMNIFICATION.
(a) Network shall indemnify and hold harmless each of Provider, its Affiliates,
Subsidiaries, Parent Company and the directors, officers, employees and agents
of such entities (collectively, the "Provider Indemnities") from, against and
with respect to any and all claims, damages, liabilities, costs and expenses
(including reasonable attorneys' fees) incurred in connection with any claim
against the Provider Indemnities arising out of: (i) the breach or default of
any of Network's representations, warranties, covenants, obligations or duties
hereunder; and (ii) Network's advertising and marketing of the Service.
(b) Provider shall indemnify and hold harmless Network, its Affiliates,
Subsidiaries, Parent Company and the directors, officers, employees and agents
of such entities (collectively, the "NETWORK INDEMNITIES") from, against and
with respect to any and all claims, damages, liabilities, costs and expenses
(including reasonable attorneys' fees) incurred in connection with any claim
against any of the Network Indemnities arising out of: (i) the breach or default
of any of Provider's representations, warranties, covenants, obligations or
duties herein; (ii) an allegation that all or any part of the Service and/or
Software Application, and Network's receipt, use and delivery of the Service
and/or Software Application in accordance with the terms and conditions of the
Agreement, violates or infringes any trademark, copyright, patent, right of
privacy or literary or dramatic right or any other intellectual property right
of any person or entity; (iii) a charge by any third party that the Service
violates any Federal State or local gaming law, and (iv) any other
representation and warranty included in paragraph 9 above.
(c) Should either party wish to assert a claim for indemnification, such party
shall do so by promptly notifying the other party in writing of such claim. The
indemnifying party shall undertake the defense of any such claim or action and
permit the indemnified party to participate therein at the indemnified party's
expense. The indemnified party, at the indemnifying party's cost, will cooperate
fully with the indemnifying party in such defense of any such claim. The
settlement of any such claim or action by an indemnified party, without the
indemnifying party's prior written consent, shall release the indemnifying party
from its obligations hereunder with respect to such claim or action so settled.
The indemnities contained in this Section 10 shall continue throughout the Term
and shall survive the expiration or termination of this Agreement for any reason
whatsoever indefinitely.
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11. TERMINATION.
Either party may terminate this Agreement upon the occurrence of any of the
following events of default, provided that such default is not cured within
thirty (30) days: (i) the other party has made any material misrepresentation;
(ii) the other party is in breach or default of any representation, warranty,
covenant, duty or obligation hereunder; (iii) the other party becomes insolvent
or seeks relief under any insolvency statute, is placed in receivership or
liquidation, or makes any assignment for the benefit of creditors; (iv) the
other party, for more than twenty (20) consecutive days, fails to maintain
operations as a going business; or (v) the other party falsifies any documents,
records or reports required hereunder or engages in or commits any fraud or
illegal action in connection with this Agreement. In addition, Network may
terminate this Agreement in the event that Provider fails to maintain the
Service Level Agreement as outlined in Exhibit C. The right of a party to
terminate this Agreement in any such instances shall be in addition to any other
rights or remedies it may have under this Agreement, at law, in equity or
otherwise. Upon termination of this Agreement, Network shall cease any use,
distribution or solicitation with respect to the Software Application governed
by this Agreement. Further, it shall return all confidential information
including any Intellectual Property provided to it in trust and all confidential
information related thereto, and the Software Application of Provider within 14
days of termination and upon written notice from Provider.
12. NOTICES.
Except as otherwise expressly set forth herein, any notices to be given pursuant
to this Agreement ("Notice") shall be in writing, signed by the party issuing
them, and sent by: (i) facsimile transmission; (ii) first class certified mail,
postage prepaid; or (iii) overnight courier service, charges prepaid, to the
party to be notified, addressed to such party at the following address, or sent
by facsimile to the following fax number, or such other address or fax number as
such party may have substituted by notice given to the others in accordance with
this Section. The sending of such notice with confirmation of receipt thereof
(in the case of facsimile transmission) or receipt of such notice (in the case
of delivery by certified mail or by overnight courier service) shall constitute
the giving thereof:
If to Provider: Zone4Play
0X Xxxxxxxxx Xxxxxx
Xxx Xxxx, 00000, Xxxxxx
Attn: Xx. Xxxx Xxxxx
Fax No.: 000 000 0 000 0000
If to Network: RCN Telecom Services of Illinois, LLC
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Director of Video Programming
Fax No.:000-000-0000
Cc: Corporate Counsel
Fax No.: 000-000-0000
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13. CONFIDENTIALITY.
(a) Each party agrees that it and its employees, representatives, independent
auditors and agents have maintained and will maintain, in confidence, the terms
and conditions, including the existence and duration, of this Agreement; as well
as all data, summaries, reports or information of all kinds, whether oral or
written, acquired or devised or developed in any manner from the disclosing
party's personnel or files, and that they have not and will not reveal the same
to any persons not employed by the disclosing party or to any other person not
having a need to know except: (i) at the written direction of the disclosing
party; (ii) to the extent necessary to comply with a valid law, rule,
regulation, order of a court of competent jurisdiction, or requirement of a
government agency, in which event the disclosing party shall so notify the other
party as promptly as practicable (and, if possible, prior to making any
disclosure) and shall seek confidential treatment of such information; (iii) in
connection with any arbitration proceeding; (iv) as part of its normal reporting
or review procedure to its partners, parent company, its auditors, its attorneys
and its investment bankers, and such parent company, auditors, attorneys and
investment bankers agree to be bound by the provisions of this Section 13; and
(v) in order to enforce any of its rights pursuant to this Agreement.
(b) Provider acknowledges and agrees that any and all Network Subscribers,
including those who receive the Service, shall be deemed customers of Network.
Provider further acknowledges and agrees that the names, addresses, profiles or
other identifying information of such subscribers ("Subscriber Information")
are, as between Network and Provider, the sole and exclusive property of
Network. During the Term and at all times thereafter, Provider represents,
warrants and covenants that it will treat all Subscriber Information strictly
confidential, and will not directly or indirectly disclose any Subscriber
Information to any other person (including persons within its organization not
having a need to know) or entity or directly or indirectly use, or permit any
other person or entity to use, any Subscriber Information for any purpose under
any circumstance.
(c) Each party agrees that a breach of these obligations of confidentiality will
result in the substantial likelihood of irreparable harm and injury to the other
party, for which monetary damages alone would be an inadequate remedy, and which
damages are difficult to accurately measure. Accordingly, each party agrees that
the other party shall have the right, in addition to any other remedies
available, to obtain immediate injunctive relief as well as other equitable
relief allowed by the state courts. The foregoing remedy of injunctive relief is
agreed to without prejudice to the other party's right to exercise any other
rights and remedies it may have at law, in equity or otherwise, including
without limitation, the right to terminate this Agreement upon 30 days notice
and seek damages or other legal or equitable relief.
14. MISCELLANEOUS.
(a) Attorney Fees. In the event of any suit or action to enforce or interpret
this Agreement or any provision thereof, the prevailing party, as evidenced by
the entry of a final, non-appealable order by a court of competent jurisdiction,
shall be entitled to recover its costs, expenses and reasonable attorney fees,
in addition to all other sums allowed by law.
(b) Assignment. This Agreement shall be binding upon, and shall inure to the
benefit of, both of the parties hereto and their respective successors and
assigns. Provider shall not assign or otherwise transfer this Agreement or any
of its rights, duties or obligations hereunder, without the prior written
consent of Network. Network shall not assign or otherwise transfer this
Agreement, or any of its rights duties or obligations hereunder without the
prior written consent of Provider, except that Network may assign its rights and
obligations under this Agreement to any third party in connection with any
merger, sale of assets or other reorganization or consolidation transaction,
provided that the third party to whom the rights will be assigned first agrees
in writing to assume the assigning party's obligations under this Agreement.
Provider may assign its rights and obligations under this Agreement to any third
party in connection with any merger, sale of assets or other reorganization or
consolidation transaction, provided that the third party is a public company and
has first agreed in writing to assume the assigning party's obligations under
this Agreement. Any purported assignment or other transfer that is not in
compliance with the provisions of this Section shall be null and void. Any
merger, reorganization or consolidation of Provider shall be deemed an
assignment requiring consent hereunder.
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(c) EXCEPT IN THE CASE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT NEITHER PARTY
SHALL BE LIABLE FOR ANY EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
TO THE OTHER PARTY. IN NO EVENT SHALL ANY PROJECTIONS OR FORECASTS BY EITHER
PARTY BE BINDING AS COMMITMENTS OR PROMISES.
(d) Governing Law. This Agreement and all matters or issues collateral thereto
shall be governed by the applicable laws of the state of Delaware, without
regard to its choice of law provisions.
(e) Force Majeure. Notwithstanding anything to the contrary in this Agreement,
neither party shall be liable to the other for failure to fulfill its
obligations hereunder if such failure is caused by or arises out of an act of
God or other reason beyond the reasonable control of the party whose performance
is prevented during the period of such occurrence (a "Force Majeure Event")
including, without limitation, technical failure. If the Service is interrupted
or discontinued as a result of a Force Majeure Event, Network shall have the
right, immediately, to insert programming of its choice in place of the Service
until the Service is fully operational again.
(f) Waiver. The failure of either party at any time to enforce any right or
remedy available to it under this Agreement or otherwise with respect to any
breach or failure by the other party shall not be construed to be a waiver of
such right or remedy with respect to any other breach or failure by the other
party.
(g) Severability. The parties agree that each provision of this Agreement shall
be construed as separable and divisible from every other provision and that the
enforceability of any one provision shall not limit the enforceability, in whole
or in part, of any other provision hereof. The invalidation or unenforceability
of any of the provisions contained in this Agreement shall in no way affect any
of the other provisions hereof or the application thereof and the same shall
remain in full force and effect. In the event that a court of competent
jurisdiction determines that any term or provision herein, or the application
thereof to any person, entity, or circumstance, shall to any extent be invalid
or unenforceable, it shall be construed by limiting and reducing it so as to be
enforceable under then applicable law.
(h) Entire Agreement; Amendment; Captions; and Construction. This Agreement
(including any schedule or exhibit hereto) contains the entire understanding of
the parties with respect to the subject matter hereof, and supersedes any and
all prior or contemporaneous agreements, representations or undertakings between
the parties with respect to the subject matter hereof. No waiver, modification
or amendment of any of the terms or conditions of this Agreement shall be
effective unless memorialized in a writing that has been signed by both parties
hereto. The captions used herein are for reference purposes only and shall not
be used in the interpretation of this Agreement.
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(i) Remedies Cumulative. It is agreed that the rights and remedies herein
provided in case of default or breach by either party of this Agreement are
cumulative and shall not affect in any manner any other remedies that the other
party may have by reason of such default or breach. The exercise of any right or
remedy herein provided shall be without prejudice to the right to exercise any
other right or remedy provided herein, at law, or in equity.
(j) Counterparts. This Agreement may be executed in one or more identical
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
(k) Escrow Materials. Provider agrees that the entire source code for the
Software Application together with all related documentation, as now exists or
hereafter becomes available, including but not limited to the then current
version(s) of the Software Application being used by Network (the "Escrow
Materials") will, at Network's option, be deposited, maintained and updated, at
Provider's expense, in escrow pursuant to an Escrow Agreement to be negotiated
by the parties. Provider shall deposit the Escrow Materials within fifteen (15)
days of Network's written notice to Provider of its election to have the Escrow
Materials deposited in the escrow account subject and according to a mutually
agreed final Escrow Agreement.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as
of the date first set forth above.
ZONE4PLAY INC. RCN TELECOM SERVICES OF ILLINOIS, LLC
By: /s/ Xxxxxx X. Xxxxxxxxxx By: /s/ Xxxxxxx X. Herbs
------------------------------ ---------------------
Title: Director Title: V.P. Video Product Mgmt
-------------------------- ------------------------
Name: Xxxxxx X. Xxxxxxxxxx Name: Xxxxxxx X. Herbs
------------------------------ -----------------
Date: November 11, 2003 Date: 06 November 2003
----------------------------- -----------------
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EXHIBIT A
INTERACTIVE APPLICATION PARAMETERS
A. APPLICATION DEFINITION:
The Software Application shall be:
1. Casino games
a. Slots machine
b. Video Poker
c. Roulette
d. Blackjack
e. Battle Royale (War)
f. Caribbean Poker
2. Portal provided and updated appropriately with each new game and new
phase, any broken links or inactive buttons require approval by
Network.
3. Help files provided and updated with each new game and new phase,
any broken links or inactive buttons require approval by Network.
4. The Software Application shall be provided in three phases:
Phase I: Simply One Way Games to be delivered by the 5th of November
2003.
Phase II: One Way Network Aware Games to be delivered by the 10th of
December 2003.
Phase III: Two Way Multi-player Games to be delivered by the 29th of
February 2004.
Note: the above offering includes development, graphic
customization, localization, adaptation, integration and
implementation. All above items must go through storyboard approval
by Network before full code delivery for Network testing. All games
must satisfactorily complete Network testing prior to acceptance.
For the purpose of clarification, all testing as further specified
hereunder shall be conducted and concluded within 30 days of
delivery. All items to be included under Provider's maintenance and
support.
B. PLATFORM DEFINITION:
Phase I
1. The platform provided for the initial launch will be customized to
NDS HTML Core in an offline version (stand-alone games)
2. There will be no use of return path
3. The player's balance will be saved on the STB as a cookie and will
be used for all the games within the portal
4. All connections shall be made through the HTTP protocol.
5. All software integration on Network's NDS Core will be performed by
Provider.
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6. Provider shall provide Network with complete documentation of
installation procedures and code for Network to install.
Installation shall be performed by Network.
7. All games must meet functionality approval by Network through; a.)
Network testing in NDS iPreview lab environment, b.) Network testing
in production test environment, and c.) deployment in production
field environment.
Phase II:
Upon completion of Phase I, Network shall provide the Provider with
required hardware sufficient to support Provider's applications.
The Provider shall install the Software Application as well as all
software required to support the Software Application and be responsible
for the servers' maintenance, including backup, monitoring, and
installation of all patches and bug fixes. Provider shall be responsible
for licensing all third party software used to support the Software
Application.
Servers' hosting shall be done by the Network.
Network shall provide the Provider with VPN connection to the server as a
prerequisite to Phase II.
On-Line games (on-line versions of all Phase I games).
All game play is conducted on the Set-top box via http communication with
server.
Includes:
Download via CAROUSEL
Log in component - supplies a 4 digit pin code
On line registration - e-mail & user name
Start session
End session - request for end session updates balance
Leader board
Phase III
Tournament Play application (including Tournament Manager Web Tool) for
Phase II on-line games.
Shall include a server based games engine located on Network servers on
Network's network.
Routing by Network and at their responsibility.
Multiplayer Games shall include:
Battle RoyaleBingo - a game is held every several minutes.
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C. TECHNICAL CONTACT INFORMATION:
Contact Name Xx. Xxxxxxx Xxxxxxx - CTO
Phone Number 000 000 0 000 0000
Pager/Cell Number 000 000 00 000 000
E-mail Address xxxxxxx@xxxx0xxxx.xxx
Alt. Contact Name Xx. Xxx Xxxxxxxx
Phone Number 000 000 0 00 0000
Pager/Cell Number 000 000 00 000 000
E-mail Address xxx@xxxx0xxxx.xxx
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EXHIBIT B
PRICE SCHEDULE
a. The initial Retail Price for the Service is suggested to be:
1. US$ 4.95 SERVICE FEE PER MONTH FOR RESIDENTIAL SERVICE SUBSCRIBERS
2. US$ 1.99 SERVICE FEE PER 24 HOURS USAGE OF ANY GAME IN THE PORTAL
("PLAY-PER-DAY")
3. US$ 1.50 SERVICE FEE PER 50 POINTS ACQUIRED FOR PLAY-PER-POINTS IN
ANY GAME IN THE PORTAL ("PLAY-PER-POINTS")
4. US$ 13.95 SERVICE FEE PER MONTH FOR COMMERCIAL SERVICE SUBSCRIBERS
b. Until Network shall xxxx it clients for using the Services mentioned
above, Network shall pay to Provider a recurring monthly fee of $0.15 per
Service Subscriber ("Pre-registration fee"). Once the above Services shall
be billed, Network will charge subscribers as detailed above.
c. In all cases the Service Fee shall be determined by Network, however, in
no event shall the monthly Retail Price be less than US$3.00 for
Residential Service Subscribers and $10.00 for Commercial Service
Subscribers.
d. Upon mutual agreement of the parties on the terms and conditions of the
sale of advertising and sponsorships, and subject to section 7 should
either party generate revenue from the sale of sponsorship and/or
advertising within the Service, each party shall be entitled to 50% of
said net revenue.
THE TERRITORY
For the purposes of this Agreement, Territory shall mean as follows:
1. For the initial stage (i.e. pilot stage/launch) Territory shall mean
the greater Chicago, IL area including the Village of Skokie.
2. Subject to the acceptance and completion of all testing to the
complete satisfaction of Network, Service shall be made available to
Network subscribers in RCN's areas of activity, as agreed upon by
the parties.
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EXHIBIT C
SERVICE LEVEL AGREEMENT
1. With respect to the availability of the content service:
1.1. During the term and from the commercial launch, the Provider shall ensure
that the content service is available for distribution by Network 24 hours
each day of the year.
1.2. Provider will ensure that the chosen connection to the site provides a
high level of performance.
1.3. Provider is wholly responsible for ensuring that disaster recovery /
business continuity plans are in place, regular backups of content data
are carried out and offsite secure storage is utilized at all times during
the term from the commercial launch.
1.4. Provider is responsible for capacity planning to ensure that its server(s)
used for the content service remain able to store and handle data as
required in accordance with this Agreement.
1.5. Provider shall ensure integrity of data traffic via its site, including
making use of virus checking software that the data traffic is virus free.
2. In the event of a fault, Network will advise Provider in writing, and in
emergencies, by telephone, electronic mail or fax in accordance with the
provisions of section 5.4.2 of this schedule.
3. Provider shall be reachable by telephone, electronic mail or fax on the
days and hours and in the way set forth in section 5.4.2 of this SLA.
4. When a fault is notified by Network to Provider, Provider shall respond
and fix the fault in accordance with the provisions of section 5.4.2 of
this SLA and shall take all measures, which will or may result, in a
solution of the fault. Such measures will be taken without interruption,
within and outside of usual working hours and working days.
5. Provider shall at all times during the term provide to Network the
following service levels with respect to the content service:-
5.1. At all times during the Term, Provider shall ensure that it has and
maintains an adequate support organization, equipment and related
procedures for logging, monitoring, investigating and resolving Faults
during Working Hours, or outside Working Hours in case of High Priority
Level, as indicated in Section 5.4.2 of this Schedule.
5.2. Reporting of Faults by Network and initial response by Provider:
(i) Following initial analysis by Network, all actual and potential Faults
identified by Network will be reported to Provider to the appropriate
contact defined in Section 5.4.2 of this SLA. The preferred method of
communication for the purposes of reporting Faults is by electronic mail
to the address shown in Section 5.4.2 of this SLA.
(ii) All relevant information with respect to the reported Fault known by
Network will be made available to Provider, including the nature and
symptoms of the Fault, the estimated time of occurrence of the Fault, the
impact of the Fault on Network's or Network's Affiliates' activities, and
the Priority Level as specified in Section 5.4.1 of this SLA.
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(iii) Upon receiving a Fault report, an initial response will be made by
Provider within the response time indicated in Section 5.4.2 of this SLA,
giving a reference for the reported Fault, and requesting any additional
information that may reasonably be required.
(iv) Provider shall provide regular progress updates to Network, and shall
confirm by electronic mail to Network that any actions to restore the
Content Service have been effective.
(v) In the event of a Fault being identified by Provider before receipt of a
Fault report from Network, Provider shall notify Network of such
occurrence of a Fault within one (1) hour of the occurrence being
identified by its own support organization, using the contact for
technical assistance.
5.3. SOLUTION BY PROVIDER: Provider shall fix the Faults and restore the
Content Service in accordance with Section 5.4.2.
5.4. PRIORITY LEVELS, RESPONSE/SOLUTION BY PROVIDER: For the purposes of this
Section 5.4, the Priority Levels of Faults shall be defined as follows:
(i) MEDIUM PRIORITY LEVEL (i.e. Faults that affect more important aspects of
the quality of the Content Service):
o Provider delivers outdated/untimely data (e.g. old scores data); or
o The Content Service delivered by Provider features minor faults
including broken navigational links, poorly formatted text, poor
image quality, spelling errors, local language errors.
(ii) HIGH PRIORITY LEVEL (i.e. Faults that materially affect the working of the
Content Service):
o Provider delivers images that do not match the related part of the
Content Service; or
o Provider delivers applications that load significantly slower than
the other applications within the Interactive TV Service or on the
Cable Networks' TV Platform.
o The Site is, in total or for a large part, inaccessible by the
Subscribers; or
o Whole pages or a large number of pages or applications of the
Content Service are not loading, broken, incoherent or inaccessible.
(iii) URGENT LEVEL (i.e. Faults that affect the working of the Channel, the
Cable Networks' TV Platform or the Content Service):
o the Content Service contains javascripts that cause stack errors
resulting in a crash of the STBs;
o Provider engages in unauthorized use of Open TV extended objects as
part of the Content Service build (e.g. conditional access objects,
user objects, TV program/channel objects);
o Provider uses a large number of "windows" as part of the Content
Service build (this may result in STBs running out of memory and
crashing);
o Provider changes, disables or otherwise interferes with the Channel
(e.g. Provider captures Network-only key strokes for other
purposes); or
o The Content Service disables, either in part or in full, the Channel
or the navigation/browser services on the Cable Networks' TV
Platform (outside of the Site).
The list of events and examples mentioned in this Section 5.4.1 is not
exhaustive, but only indicative.
0.0.0.Xx all times during the Term, Provider shall comply with the following
requirements as regards reporting of Faults by Network:
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REPORTING OF FAULTS
-------------------------------------------------------------------------------------------------------------------------------
Reporting by Network Response by Provider
-------------------------------------------------------------------------------------------------------------------------------
Priority Level: Contact Details of Provider for Response time:
Reporting:
Medium Priority Levels:
Initial response after Fault report by Network: within two
(2) Working Hours.
NAME: Time frame between the initial response and identification
Medium Xxx Xxxxxxxx of the solution to the reported Fault:
E-MAIL:
Priority Levels: xxx@xxxx0xxxx.xxx Medium Priority Level - 2 Working Days
TELEPHONE: High Priority Level:
011 972 3 688 9444
During Working Hours on FAX: If fault is associated with client side application (Front
Working Days. 011 972 3 537 9429 End)- Initial response after Fault report by Network:
CELL PHONE #: within 2 hours.
011 972 54 611 532
Time frame between the initial response and successful
implementation of the solution to the reported Fault -
two (2) hours
Entire process from report by Network to successful
implementation to be no more than 4 hours.
If fault is associated with server side application (Back
End)-
Initial response after Fault report by Network: within 2
hours.
Time frame between the initial response and successful
implementation of the solution to the reported Fault -
eight (8) hours
High and Urgent Entire process from report by Network to successful
implementation to be no more than 10 hours.
Priority Levels:
Urgent Priority Level:
24 hours a day, each day of
the year, excluding "Yom If fault is associated with client side application (Front
Kippur" Holiday in Israel. End)-
After Fault report by Network: 2 hours for both initial
response and identification of and
successful implementation of solution to the reported
Fault.
If fault is associated with server side application (Back
End)-
Initial response after Fault report by Network: within 2
hours.
Time frame between the initial response and successful
implementation of the solution to the reported Fault - six (6)
hours
Entire process from report by Network to successful
implementation to be no more than 8 hours.
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5.5. The Parties shall allow for regular windows for the maintenance of the
Content Service. The total time of such periods shall not exceed 1 hour in
any 30 day period.
6. In accordance with the provisions of Clause 11, Network may, at any time,
at its sole option and without being liable in any way to the Provider,
remove the link to the Site from the Channel (or any other menu system) in
the event that, in Network's opinion, such removal would be the most
appropriate way:
(i) to ensure or restore the integrity or proper working of the Content
Service, the Channel or the Cable Networks' TV Platform or any part
thereof or any other service on the Cable Networks' TV Platform; or
(ii) To avoid an overload of the relevant customer service(s) or helpdesk(s);
or
(iii) to protect its commercial reputation towards the Subscribers (such as
avoiding or trying to limit complaints from Subscribers or in the event
that Provider fails to comply with the provisions of Sections 1 to (and
including) 5 of this Schedule and that such failure, in Network's
reasonable opinion, affects the quality of the Content Service).
7. Provider must not bring any material changes to the Content Service which
has not been tested beforehand by Network. This testing process shall not
apply to changes provided in the feeds-based templates which are provided
by Network as part of the Content Creation Kit (or updates thereof) and
which have already been tested by Network. This testing process will need
to be carried out with respect to any of the following changes:
(i) Implementation of any new design elements, including all graphics;
(ii) Any change to the Site's functionality or site structure;
(iii) Any additional piece of functionality added to the Site; or
(iv) Any change to the method of content delivery to the Site (e.g.
implementation of a new Content Management System or upgrades or changes
to the core functionality of the Content Management System).
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