Exhibit 10.11
THIS AGREEMENT is entered into this 6 day of March, 2001.
BY AND BETWEEN:
ARRAN HOLDINGS LTD., a corporation incorporated pursuant to
the Laws of Bahamas, with its registered offices in Bahamas;
(hereinafter referred to as "Arran")
OF THE FIRST PART
AND
PLAYSTAR CORPORATION, a corporation incorporated pursuant to
the Laws of the Island of Antigua with its registered offices
in St. John's Antigua, West Indies;
(hereinafter referred to as "Playstar" and also referred to as
"Licensor")
OF THE SECOND PART
WHEREAS Arran wishes to engage the services of Playstar to create and
provide a completed and fully implemented high quality software program;
AND WHEREAS Playstar agrees to develop the program Sportsprops for
Arran pursuant to the terms and conditions referred to herein;
AND WHEREAS Playstar owns rights to Internet Casino Software (the
"Licenced Software");
AND WHEREAS Playstar is in the business of licensing Software to other
companies;
AND WHEREAS Playstar is prepared to provide a complete Computer
Software Package that Arran may use to operate an Internet gaming site;
AND WHEREAS Arran wishes to license the Software from Playstar in order
to operate an Internet gaming site;
NOW THEREFORE, in consideration of the premises and mutual covenants
herein set forth, the Parties agree as follows:
A. GENERAL PROVISIONS
1. Definitions
1.0 "Licensed Software" shall mean a licensed data processing program or
micro program consisting of a series or sequence of signals, or
instructions, statements or fonts stored on any media in machine
readable form, and any related licensed materials such as, but not
limited to, graphics, flow charts, logic diagrams, manuals, and listing
made generally available by Playstar for use in connection with the
licensed programs which shall consist of only Casino Style Games more
particularly described herein and specifically shall not include
Sportsprops.
1.1 "Net Monthly Revenue" shall mean, for any given calendar month, the
total amount wagered in the Games for any licensed product, less
winnings in the Games PLUS, any fees for transaction processing. Net
Monthly Revenue will not include any income derived from any part of
the website that does not specially use the Licensed Software or
systems provided by Playstar.
1.2 "Hardware" shall mean all the necessary computers, routers, cabling,
monitors, hard drives, back-up systems, and other equipment recommended
by the Licensor and mutually agreed upon between the parties hereto.
1.3 "Games" shall mean the Casino style games, Sportsbook, Lottery, and/or
other pari-mutual games that are played using the Licensed Software as
are available from time to time and for greater particularity shall not
include Sportsprops.
1.4 "Basic Customer Support" shall include telephone support to Arran
customers by an eight hundred (800) telephone line 8:00 a.m. to 11:00
p.m. daily seven (7) days per week; and twenty-four (24) hour e-mail
with minimum twenty-four (24) hour response on the following topics:
rules of play, how to play, credit/debit Arrangements and FAQ's. Basic
Customer Support does not include service to customers computers nor on
site service calls.
1.5 "Basic Technical Support" shall include complete technical support for
Arran for one person designated by Arran at any one time.
1.6 "Customer Information" shall mean all data collected and stored on
customers including, without limiting the generality of the foregoing,
name, address, phone and fax number, e-mail address, credit card
numbers and expiration dates or information on other types of payments,
amounts wagered and frequency of wagering.
1.7 "Confidential Information" shall mean material in the possession of
Playstar which is not generally available to or used by others or the
utility or value of which is not generally known or recognized as
standard practice, including, without limitation, all financial
business and personal data relating to Playstar
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clients, any non-public information about affiliates, subsidiaries,
consultants and employees of Playstar or its affiliates, business and
marketing plans, strategies and methods, studies, charts, plans, tables
and compilations of business industrial information, computer software
and computer technology whether patent able, copyrightable or not,
which is acquired or developed by or on behalf of Playstar or its
affiliates from time to time.
1.8 "Net Win" for the purposes of this Agreement, Net Win is defined as the
total gross wagered by xxxxxxxxxxx.xxx casino clientele less the total
amount won by casino clientele during defined period of time (monthly).
1.9 "Parties" shall mean the Licensor and Arran.
1.10 "Sportsprops" shall mean an internet sports proposition wagering
service.
1.11 "Sports Proposition Wager" shall mean a wager or bet placed relating to
a sporting event accompanied by fixed odds and may include a wager on
any aspect of such event except a wager as to the specific winner or
successful outcome of the event.
1.12 "Sports Book" shall mean a wager or bet placed as to the specific
winner or successful outcome of the event and may include any of the
following:
(a) "A Straight Up Bet" which shall mean one wager or bet
on the event;
(b) "Parlay Bets" which shall mean a wager composed of
two or more bets or two or more specific events, both
of which bets must be successful for the bettor to be
paid; and,
(c) "Future Bets" which shall mean a wager on the result
of a specific event or series of events to take place
at a date in the future.
B. SOFTWARE DEVELOPMENT PROJECT
2. Xxxxxxxxxxx.xxx
2.0 Playstar agrees to create, install and provide a completed and fully
integrated high quality software program ("Sportsprops") designed to
successfully operate an Internet Sports Wagering web site for Arran.
Playstar agrees to complete the same as soon as reasonably possible and
in any event no later than one (1) year from the date hereof.
2.1 The Sportsprops software program developed by Playstar hereunder and
all source codes related thereto shall become and remain the property
of Arran with full right, and title thereto.
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2.2 The Parties agree that the Xxxxxxxxxxx.xxx program is to be developed
to the specifications set forth by a representative of Arran with the
approval of Xx. Xxxxxxx Xxxxxxxxxx of Playstar.
2.3 The form and content of the Xxxxxxxxxxx.xxx program is subject to final
approval by Arran, whose consent is not to be unreasonably withheld.
3. Consideration
3.0 Subject to the performance by Playstar of its obligations under Article
2 herein, Arran shall pay to Playstar the sum of Three Hundred and
Fifty Thousand Dollars ($350,000.00) as follows:
1. The sum of Twenty-Five Thousand Dollars ($25,000.00) receipt
of which is hereby acknowledged;
2. The sum of Thirty-Seven Thousand Five Hundred Dollars
($37,500.00) to be paid every two (2) weeks from the date of
signing this Agreement for a total of six (6) installments
totaling Two Hundred and Twenty-Five Thousand Dollars
($225,000.00);
3. The sum of One Hundred Thousand Dollars ($100,000.00) upon the
Sportsprops web site being fully operational for a period of
one (1) month with no downtime.
Notwithstanding anything herein contained, in the event that
Playstar has not completed the Xxxxxxxxxxx.xxx program and the
web Sportsprops site is not in full operation within one (1)
year of the date of this agreement, Playstar shall return all
money as set out herein to Arran;
4. Management Services
4.0 SMP Data of Antigua ("SMP") shall be retained by Arran to provide
management services of the Xxxxxxxxxxx.xxx web site.
4.1 Except as herein provided, SMP shall be entitled to receive, in return
for the management services provided herein twenty percent (20%) of the
Net Monthly Revenue.
4.2 The Parties agree that the first Twenty-Five Thousand Dollars
($25,000.00) in Net Win in any given month is to cover expenses
necessary for the proper management of the site. In the event that the
Net Win in any given month is less than Twenty-Five Thousand Dollars
($25,000.00) then SMP and Playstar shall be solely responsible for
these expenses.
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4.3 Subject to the same notice provisions as contained in paragraph 4.6,
SMP may cancel their management services at any time after the
completion of the sixth (6th) month of operations at its discretion and
will at that point waive its right to the twenty percent (20%) revenue
share from the Xxxxxxxxxxx.xxx web site and Playstar and SMP will
assist in the set up of the site at another location to be determined
by Arran and Arran shall pay for assistance at cost which shall for
greater certainty include no funds for the account of either Playstar
or SMP except for out of pocket expenses to third parties.
4.4 The cessation of the management services shall not affect the casino
Software License Agreement contained herein which shall remain in full
force and effect for the duration of the Xxxxxxxxxxx.xxx casino web
site.
4.5 The Parties agree that SMP and Playstar shall be retained by Arran to
provide management and/or set up services of the Xxxxxxxxxxx.xxx web
site as follows:
a) Playstar shall supply the Hardware necessary to run
Xxxxxxxxxxx.xxx software program from their Guatemala
co-location.
b) Playstar shall set up and install all Hardware and Software in
Guatemala
c) SMP shall provide ongoing hosting of Hardware in Guatemala;
d) Playstar will allow Xxxxxxxxxxx.xxx to operate free of gaming
license costs in their Guatemala co-location.
e) Playstar shall supply Internet connection and all bandwidth
charges from Guatemala
f) SMP shall set up any daily operations of cash management
system from the SMP corporate offices in Antigua (accounting,
cc processing, money orders, etc.)
g) SMP shall provide Basic Customer Support.
h) SMP shall provide daily site management.
i) SMP shall provide comprehensive reporting of all player
activity and player accounts to be made available remotely
(online).
j) Playstar shall explore all co-branding/licensing
opportunities. Revenue to be shared equally between Playstar
and Arran on all licensing of Sportsprops software (e.g.
Product licensed to third party for Twenty-Five Thousand
Dollars ($25,000.00) plus ongoing revenue share equal to
Twenty-Five percent (25%) of the net revenue. Both company's
share the cash component and revenue share to be divided
equally between Arran and SMP).
k) Playstar agrees to aid in the marketing of the Xxxxxxxxxxx.xxx
web site on a best efforts basis through their licensees,
affiliates, portals, etc.
l) SMP and Playstar agree to train representatives of Arran in
all aspects of the above including without limiting the
generality of the above, how to set up and operate a web site
for Sportsprops, and the cash management program and to allow
representatives of Arran to maintain a presence at any
premises that pertains to Sportsprops operations.
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4.6 Either Party may cancel the Management Services of the Xxxxxxxxxxx.xxx
web site (excluding casino) upon ninety (90) days written notice to the
other party, no sooner than three (3) months from the launch of the
site. They further agree that the termination of this contract would
mean the de-activation of the site at the source. In the event of
termination, the Licensee shall be responsible for all outstanding
player accounts.
5. Warranty
5.0 Playstar warrants and represents that the Sportsprops program developed
by them will function in accordance with system specifications and will
be fit for the purpose as herein set out. Playstar shall not be liable
for consequential loss resulting from the use of the Sportsprops
program or arising out of any breach of this warranty.
5.1 In the event that the Sportsprops program does not function during the
life of the Management contract, Playstar shall correct any
malfunctions forthwith at Playstar's cost to be paid by Playstar.
5.2 Playstar warrants and represents that it is the creator of the
Sportsprops program and that it will indemnify and save harmless Arran
and its members, shareholders, directors, officers, employees, agents,
contractors, representatives, parent company, or subsidiaries
(collectively the "Indemnified Parties") from and against all damages,
losses, costs and expenses (including actual legal fees and costs),
fines and liabilities incurred by or awarded asserted or claimed
against any of the Indemnified Parties relating to the validity or
ownership of the Sportsprops program and any lawsuit relating to
trademark or copyright infringement.
5.3 (a) Playstar agrees for the duration of this agreement not to
construct, build or operate any Sports Proposition web based
wagering service in competition with Xxxxxxxxxxx.xxx
(b) The Parties agree however that Playstar has a right and
privileged of constructing, designing, building or operating a
Sports Book, Sports Pools and other such non-sports
proposition wagering web sites as they may see fit.
(c) In the event that Playstar wishes to add a Sports Proposition
Wagering service to its existing product line than it may do
so only upon the express written consent of Arran which
consent may be arbitrarily withheld.
6. Security Deposit
6.0 Arran shall set up a merchant account necessary for the acceptance of
credit cards. A security deposit will be required which may be as high
as Fifty Thousand Dollars U.S. ($50,000.00) but not less than
Thirty-Five Thousand Dollars U.S.
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($35,000.00). The Licensee agrees to provide such Security deposit(s)
on or before the date in which the site is ready to go live.
6.1 Playstar shall provide to Arran all information required in this regard
and keep Arran advised of any changes in this regard.
C. SOFTWARE LICENSING AGREEMENT
7. Consideration
In consideration of the mutual covenants contained herein,
7.0 Playstar agrees to license a seven (7) game casino package to Arran
including Video Poker, Blackjack, 4-line Video Poker, Roulette, Slot
Machines, Let-it-Ride Poker, and the Reach for the Stars progressive
slot machine.
7.1 The Parties agree that Arran shall retain eighty-percent (80%) of the
Net Win from the casino operations, but shall not be responsible for
the progressive jackpot for which Playstar shall be liable.
7.2 The Parties agree that the casino game package is to be installed to
the Xxxxxxxxxxx.xxx web site.
8. Indemnification
8.0 Arran acknowledges and agrees that neither Playstar nor any of its
members, shareholders, directors, officers, employees or
representatives shall be liable to Arran for any special, indirect,
consequential, punitive or exemplary damages, or damages for loss of
profits or savings, in connection with this Agreement, the services or
the Hardware or any other information, material or services provided by
Playstar to Arran under this Agreement. Notwithstanding the same,
Playstar shall be responsible to Arran for direct damages, any claim
arising out of the license herein and any other warranty as set out
herein.
8.1 Subject to Playstar's compliance with paragraph 9.1, Arran shall
indemnify and save harmless Playstar and its members, shareholders,
directors, officers, employees, agents, contractors, representatives,
parent company, or subsidiaries (together, the "Indemnified Parties")
from and against all damages, losses, costs and expenses (including
actual legal fees and costs), fines and liabilities incurred by or
awarded asserted or claimed against any of the Indemnified parties by
any licensing or government agency who licenses, regulates, or
otherwise governs the licensing or use of Internet gambling in
connection with Arran's activities under this Agreement, including
claims brought by a person using or relying upon any advice given or
publication produced and distributed by Arran.
9. Disruptions
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9.0 Arran acknowledges that from time to time, as a result of supplier
failures such as delay in delivery or loss of Internet connection, acts
of God, work stoppages, fires, civil disobedience, riots, rebellions,
the services provided under this Contract by Playstar can be
temporarily disrupted. Arran acknowledges and agrees that neither
Playstar nor any of its members, shareholders, directors, officers,
employees or representatives shall be liable to Arran or any of Arran's
customers for any special, indirect, consequential, punitive or
exemplary damages, or damages for loss of profits or savings, in
connection with these temporary disruptions.
9.1 Arran acknowledges that Playstar's ability to perform its obligations
under this Agreement are subject to government licensing in whatever
jurisdiction Playstar may choose to operate. Playstar shall not be held
liable for any damages of any kind whatsoever that may result from
changes in government legislation or policy. Notwithstanding the same,
Playstar shall have an obligation to keep Arran informed of all changes
in such legislation and any jurisdictions in which such government
licensing is required and/or internet gambling is illegal as soon as
Playstar is advised of and becomes aware of the same and Playstar's
indemnity in paragraph 8.1 and its rights as set out in this paragraph
is subject to the same.
10. Conditions of License
This license is granted under the following conditions:
10.0 Arran acknowledges that its rights in and to the Licensed Software may
not be assigned, sub-let, sub-licensed or otherwise transferred by
operation of law without the prior written consent of Playstar (such
consent shall not be unreasonably withheld or delayed). Such consent
shall not be required if such assignment, sub-let, sub-license or
transfer is purely for tax purposes or a company with the same
shareholders as Arran.
10.1 Copyright and other proprietary rights of Playstar protect the Licensed
Software. Arran may be held directly responsible for acts relating to
the Licensed Software which are not authorized by this Agreement.
10.2 (i) All right, title and interest in and to the Licensed
Software, and any copies thereof, and all
documentation, code and logic, which describes and/or
comprises the Licensed Software remains the sole
property of Arran.
(ii) All right title and interest in and to the Hardware
provided to Arran shall remain the sole property of
Arran.
10.3 No Party shall be held responsible for failure of performance of
Agreement due to causes beyond its control, including, but not limited
to, work stoppages, fires, civil disobedience, riots, rebellions, acts
of god, and similar occurrences.
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10.4 Arran acknowledges that this is a non-exclusive agreement and that
Playstar shall license the Licensed Software to as many other parties
as are willing to enter into a licensing agreement with Playstar.
10.5 Arran shall be responsible for ensuring that they are operating the
Licensed Software in compliance with any and all applicable state,
provincial, national, and international laws.
10.6 Arran shall provide Playstar with all documentation necessary to show
that Arran has obtained any and all necessary licenses in order to
operate an Internet Casino and/or Sportsbook in the jurisdiction in
which the gaming servers are located.
10.7 It is the policy of Playstar to prevent the use of the Licensed
Software for use as a "money laundering" vehicle. Playstar and Arran
warrant that they will undertake all reasonable efforts to prevent
persons from using the Licensed Software for use as a money laundering
vehicle. If it is revealed that Playstar or Arran is purposely allowing
or is willfully blind to money laundering, the other party may
terminate this agreement without notice.
11. Term and Termination
11.0 This Agreement shall commence and be deemed effective on the date when
fully executed (the "Effective Date"). This Agreement is in effect for
a period of two (2) years (the "Term") and shall be automatically
renewed indefinitely annually unless Arran gives written notice of
termination of this Agreement at least Ninety (90) days prior to the
end of any one-year period.
11.1 Playstar may terminate this Agreement be giving written notice to Arran
at Ninety (90) days prior to the end of any one-year term provided,
however, Playstar shall not give notice of termination in the first
three (3) months from the launch of the site.
11.2 Playstar may terminate this Agreement at any time upon fifteen (15)
days written notice if Arran is more than thirty (30) days in arrears
in paying any material monthly fees due and owing to Playstar. Arran
shall be allowed to cure the breach during the notice period, thus
pre-empting Playstar's ability to terminate this Agreement in
accordance with this section. The arrears contemplated in this section
must be of a material amount for this section to be used by Playstar.
For the purposes of this section, material shall mean anything greater
than one (1) of the previous month's fees.
11.3 Playstar may terminate this Agreement at any time upon fifteen (15)
days written notice if Arran becomes bankrupt or insolvent or ceases
carrying on business for any reason.
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11.4 Arran may terminate this Agreement at any time upon five (5) days
notice if Playstar becomes bankrupt or insolvent or ceases carrying on
business for any reason.
11.5 Arran may, inter alia, terminate this Agreement at any time upon five
(5) days notice if Playstar is materially in breach of Agreement for
more than thirty (30) days. A material breach may include, among other
things, Playstar's failure to pay Arran any portion of Monthly revenue
amounts as described in Sections 3.0. Playstar shall be allowed to cure
the breach during the notice period, thus pre-empting Arran's ability
to terminate this Agreement in accordance with this section.
11.6 Playstar or Arran may terminate this Agreement at any time upon fifteen
(15) days written notice if the other or any of its principals,
officers or Directors becomes the subject of third party civil or
criminal litigation as a result of the other's operations under this
Agreement. The litigation contemplated herein must be material, and
found to be of a serious nature by independent legal counsel mutually
selected by and acceptable to both parties.
11.7 Subject to paragraph 4.4, upon termination of this Agreement, Arran
shall immediately return to Playstar any and all of Playstar's
materials that Playstar has a proprietary right in that are in Arran's
possession and/or in the possession of Arran's agents, servants and
employees.
11.8 Upon termination of this Agreement, all Customer Information shall be
given to Arran and Playstar shall not make use of or disclose any
Customer Information to any third party.
11.9 The parties agree that termination of this Agreement shall mean the
de-activation of the site at the source. In the event of termination
Arran shall be responsible for all outstanding player accounts except
as herein provided in paragraph 7.1.
12. Accounting
12.0 The Licensor shall maintain records of all transactions and xxxxxx
placed utilizing the Licensed Software. Arran shall have access to such
records at their discretion.
12.1 Arran shall pay a fee to be agreed upon to cover administration fees
and disbursements, including printing, photocopy and shipping costs,
each time accounting information is requested. Administration fees
shall be paid out at market prices. Notwithstanding the above, no fees
are payable for regular accounting information provided to Arran for
the purpose of calculating Net Revenue.
12.2 The Licensor shall regularly supply a complete accounting record, of
the previous month's activity relating to the Licensed Software within
ten (10) working days of
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the end of each month. The accounting records shall be delivered either
by facsimile or by e-mail.
12.3 The Licensor shall provide daily interim accounting reports, as defined
and from time to time. The daily interim accounting records shall be
delivered either by facsimile or by e-mail.
12.4 Arran shall have the right to utilize the accounting information for
statistical and reporting purposes provided specific information about
the Licensor and its individual customers is not disclosed.
12.5 The Licensor shall archive and maintain the accounting information for
a period of two (2) fiscal years.
12.6 The Licensor, at is discretion, may destroy any portion of the
accounting information that it deems to be no longer relevant.
12.7 Arran shall be given thirty days written notice prior to the
destruction of any accounting information. Arran may choose to archive
information about to be destroyed, at its own facilities.
13. Customer Data
13.0 The Licensor shall maintain a database containing the Customer
Information.
13.1 The Customer Information shall remain the property of Arran.
13.2 Arran and its related parties will treat this "customer information" as
confidential information and will not disclose this information to any
third party for any reason whatsoever.
13.3 The Licensor shall provide daily interim Customer Information reports
in the form of web-based tracking.
13.4 Playstar shall have the right to utilize the Customer Information only
for statistical purposes, and then only if this statistical information
is to be shared with Arran. Under no circumstances shall Licensor use
the Customer Information in the marketing of any gaming site being
operated by a subsidiary of Licensor.
13.5 The Licensor shall archive and maintain the Customer Information for a
period of two (2) years.
13.6 Arran shall be given thirty (30) days written notice prior to the
destruction of any Customer Information. Arran may choose to archive
information about to be destroyed, at its own facilities.
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14. The Games
14.0 The Licensor shall determine the odds for the Games from time to time.
14.1 The Licensor shall determine the betting limits for the Games from time
to time. Arran may choose zero as a betting limit.
D. OBLIGATIONS OF ARRAN
15. Licenses
15.0 Arran shall be responsible for obtaining and maintaining all necessary
licenses for the operation of an Internet Casino and Internet
Sportsbook operation, or whichever Arran intends to operate, in a
location where Playstar maintains Hardware. Playstar will provide
initially all licenses necessary for legal operation.
16. Merchant Numbers
16.0 Arran shall be responsible for obtaining and maintaining appropriate
merchant numbers for the processing of Visa, Master Card and any other
credit card Arran may obtain merchant numbers for (the "Merchant
Numbers"). Playstar will provide for quick and easy set up with their
current processor.
17. Marketing
17.0 Arran shall be responsible for marketing all aspects (both online and
offline) of the development and on-going operation of the Licenced
Software, including but not limited to: design, strategic planning,
advertising campaigns, affiliate programs, customer reward programs.
All direct costs of Marketing shall be borne and will be an expense of
the operation of the Licenced Software. Playstar to supply marketing
help wherever possible.
17.1 SMP shall be responsible for all aspects of customer service except
Basic Technical Support. Customer service may include, but is not
limited to dealing with customer complaints and paying out winnings.
During any period that Arran is using Playstar merchant number and
banking activity, Playstar shall be responsible for paying out
winnings. In the event Playstar or SMP pays out any winnings
incorrectly, notwithstanding anything herein contained, Playstar shall
be responsible for any and all losses in this regard. No payments for
winnings shall be made without Arran's written consent.
18. Distribution of Software
18.0 Arran shall not alter the Licensed Software in any way.
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18.1 Arran shall ensure that the packaging for the Licensed Software and the
entry web page for the Games, shall display all proprietary rights
symbols such as Copyright and Trademark, as supplied by Playstar.
19. Regulatory Issues
19.0 Subject to Playstar's obligations in paragraphs 9.1 and 19.3, Arran
shall be solely responsible for determining which jurisdictions they
choose to market to and receive xxxxxx from.
19.1 Subject to Playstar's obligations in paragraphs 9.1 and 19.3, Arran
shall be responsible for determining the legality of accepting xxxxxx
in whichever jurisdictions they choose to market to and receive xxxxxx
from.
19.2 Subject to Playstar's obligations in paragraphs 9.1 and 19.3, Arran
shall indemnify Playstar and hold it harmless from any and all actions,
claims or lawsuits including any reasonable legal costs, and fines that
arise as a result of Arran choosing to accept xxxxxx from any
jurisdiction that determines or has determined that Internet wagering
is illegal.
19.3 Playstar shall keep Arran informed of all knowledge it has with regard
to paragraph 19.2
20. The Web Site
20.0 Arran shall ensure that the Web Sites shall display a statement that
the Software is licensed, as well as all proprietary rights symbols
such as Copyright and Trademark, as supplied by Playstar. The Symbols
shall be the exact same size and font as supplied by Playstar.
20.1 If requested, Playstar shall construct and maintain any and all
additional Web Sites Arran deems necessary for the marketing of the
Licensed Software. All work done to build additional web sites shall be
charged to Arran at market rates, subject to Arran's written agreement
prior to the same.
20.2 After the first Web Site is created by Playstar, Playstar shall not in
any way be responsible for the design of the Web Sites utilized by
Arran.
20.3 Arran shall include in their Terms and Conditions of Play for the
Licensed Software the Terms and Conditions that are recommended by
Playstar. Arran may embellish or add to these Terms and Conditions. If
Arran does not implement the minimum required Terms and Conditions, in
so far as the Terms and Conditions would have protected Arran, Playstar
shall not be responsible to Arran, notwithstanding anything in this
Agreement.
E. FURTHER OBLIGATIONS OF THE PARTIES
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21. Representations and Warranties
21.0 Each of the parties hereto hereby represents and warrants unto each
other as follows:
21.1 It has full power, authority and legal right to incur the obligations
provided for in this Agreement, to execute and delivery this Agreement,
to perform and observe the terms and provisions hereof and has the
corporate power and authority, and the requisite licenses to own its
properties as now owned and operated.
21.2 This Agreement constitutes the legal, valid and binding obligation of
such Party, enforceable against it in accordance with the terms hereof.
21.3 The execution, delivery and performance of this Agreement have been
duly authorized by all necessary action, corporate or otherwise, on the
part of such Party.
21.5 The execution, delivery and performance of this Agreement will not
violate or exceed the power of such Party, or contravene (i) any
provision of any applicable law, regulation, decree or order to which
such Party is subject; (ii) any provision of the memorandum and article
of association, charter or constitutive documents of such party; or
(iii) any provision of any contract or agreement to which such Party is
a party, or under which it or its assets is found.
21.6 All authorizations, consents, permits approvals and licenses required
for the execution, delivery and performance of this Agreement have been
or will be duly obtained or granted and are or will be in full force
and effect.
21.7 Any material breach of the Representations and Warranties shall be
considered a breach of this Agreement entitling the aggrieved party to
whatever remedies provided under this contract.
F. STANDARD CLAUSES
22. Confidentiality
22.0 Arran shall not disclose, publish, or disseminate Confidential
Information to anyone other than those of its employees, affiliates or
others with a need to know, and Arran agrees to take reasonable
precautions to prevent any unauthorized use, disclosure, publication,
or dissemination of Confidential Information. Arran agrees not to use
Confidential Information otherwise for its own or any third party's
benefit without the prior approval of an authorized representative of
Playstar in each instance.
22.1 Playstar shall not disclose, publish, or disseminate Customer
Information to anyone other than those of its employees with a need to
know, and Playstar to take reasonable precautions to prevent any
unauthorized use, disclosure,
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publication, or dissemination of Customer Information otherwise for its
own or any third party's benefit without the prior written approval of
an authorized representative of Arran in each instance.
22.2 All Confidential Information, and any Derivatives thereof created by
Playstar; remains the property of Playstar and no license or other
rights to Confidential information is granted or implied hereby. For
purposes of this Agreement, "Derivatives" shall mean: (a) for
copyrightable or copyrighted material, any translation, abridgement,
revision or other form in which an existing work may be recast,
transformed or adapted; (b) for patentable or patented material, any
improvement thereon; and (c) for material which is protected by trade
secret, any new material derived from such existing trade secret
material, including new material which may be protected by copyright,
patent and/or trade secret.
22.3 Notwithstanding anything in Sections 22.0 through to 22.8, Playstar
shall be allowed to use Customer Information for the purpose of
fulfilling its reporting obligations as a public company. Playstar
shall also be allowed to use Customer Information in a statistical form
so long as it does not identify individuals or specific companies.
22.4 Neither Playstar nor Arran shall disclose the contents of this
Agreement to any third party who is not bound to maintain
confidentiality between the parties. Playstar and Arran acknowledges
that disclosure of the terms of Agreement to third parties would cause
irreparable damage to Arran and/or Playstar.
22.5 Playstar agrees to cooperate with Arran for any reasonable disclosure
requirements of any capital raising activity conducted for the benefit
of Arran.
22.6 Arran and Playstar agree to keep the existence of this Agreement
confidential and not to make any public announcement in relation to, or
public comment on, this agreement unless such public announcement or
comment has been mutually agreed upon.
22.7 Playstar agrees to keep all business dealings with Arran (as a company
and as individuals) confidential, and agrees not to disclose the
business relationship between the parties to any third person. Licensor
understands that any disclosure of this confidential information will
cause irreparable harm to Arran. Confidential information shall include
but is not limited to Arran's company name, the names and contact
addresses of the shareholders and management of Arran, and the fact
that Arran entered into an agreement with Licensor.
22.8 The Licensor is given permission to place Arran's name in any promotion
or publicity venue which does not, in any way, harm the image or
reputation of Arran.
22.9 Playstar and SMP hereby covenant and agree with Arran that during the
term of this agreement and for a period of six years thereafter, that
they shall not for
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whatever reason and with or without cause, either individually or in
partnership or jointly or in conjunction with any person, firm,
association, syndicate company, corporation or in any other matter
whatsoever directly or indirectly carry on or be engaged in or be
concerned with or interested in or advised, lend money to, guarantee
the debts of or obligations of or permit their name or part thereof to
be used or employed by any person or persons, firm, association,
syndicate, company, corporation or entity in or concerned with or
interested in the business of sports proposition wagering.
Notwithstanding the above, in the event that Playstar wishes to enter
into sports proposition wagering, it shall do so by license agreement
with Arran.
22.10 Playstar and SMP hereby agree that the restrictions contained in 22.9
are reasonable and valid and defenses to the strict enforcement by
Arran are hereby waived by Playstar.
22.11 Playstar and SMP hereby agrees that the remedy at law for any breach by
it of the provisions as contained in 22.9 may be inadequate and that in
the event of such breach Arran shall be entitled to make an application
to the appropriate court granting Arran temporary and/or permanent
injunctive relief against Playstar and/or SMP, without the necessity of
proving actual damage to Arran.
23. Languages
23.0 It is acknowledged by the Parties that multi-lingual audio translation
Software costs and adjustments, are to be agreed upon on a language per
language basis. It is further acknowledged that a reasonable
development time is required to develop each "New Language Casino",
however, Playstar will provide their best efforts to fulfill all
language requirements in a reasonable time period.
24. Notices
24.0 Unless otherwise provided in Agreement, any notice provided for under
Agreement shall be in writing and shall be sufficiently given if
delivered personally, or if transmitted by facsimile and/or e-mail with
an original signed copy delivered personally within twenty-four hours
thereafter, or mailed by prepaid registered post addressed to Arran
and/or Playstar at their respective addresses set forth below or at
such other than current address as is specified by notice.
To Arran: c/o 000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
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Copy to: Xxxxxx, Xxxx
Barristers and Solicitors
0 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxx Xxxxxx
To: Playstar: Mutual Financial Centre Factory Rd.
St. John's, Antigua
X.X. Xxx X 0000 Xxxxx Xxxxxx
Xxxxxxx XX
To: SMP Mutual Financial Centre Factory Rd.
St. John's, Antigua
X.X. Xxx X 0000 Xxxxx Xxxxxx
Xxxxxxx XX
25. Entire Agreement
25.0 The Parties agree that Agreement, constitute the complete and exclusive
statement of the terms and conditions between Arran and Playstar
covering the performance hereof and cannot be altered, amended or
modified except in writing executed by an authorized representative of
each party. Arran further agrees that any terms and conditions of any
purchase order or other instrument issued by Arran in connection with
Agreement which are in addition or inconsistent with the terms and
conditions of Agreement shall not be binding on Playstar and/or on
Arran and shall not apply to Agreement.
26. Governing Law and Arbitration
26.0 This Agreement shall be governed by and construed in accordance with
the laws of Antigua and Barbuda, and Arran hereby attorns to the
jurisdiction of the courts of Antigua and Barbuda notwithstanding any
other provision expressed or implied in the Agreement. Any dispute in
connection with Agreement shall be settled by arbitration in accordance
with any Arbitration Act agreed upon between the parties; provided,
however, should any dispute arise under Agreement, the parties shall
endeavor to settle such dispute amicably between themselves. In the
event that the parties fail to agree upon an amicable solution, such
dispute shall be finally determined by arbitration as aforesaid.
27. Good Faith
27.0 The parties acknowledge to one another that each respectively intends
to perform its obligations as specified in Agreement in good faith and
will mutually assist and support each other and its consultants in the
development of the multi-
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entertainment Internet Casino in the interest of helping to maximize is
over success.
28. Parties to Act Reasonably
28.0 The parties agree to act reasonably in exercising any discretion,
judgment, approval or extension of time that may be required to effect
the purpose and intent of Agreement. Whenever the approval or consent
of a party is required under Agreement, such consent shall not be
unreasonably withheld or delayed.
29. Time
29.0 Time is of the essence.
30. Number and Gender
30.0 In this Agreement the use of the singular number includes the plural
and vice versa the use of any gender includes all genders, and the word
"person" includes an individual, a trust, a partnership, a body
corporate and politic, and association and any other incorporated or
unincorporated organization or entity.
31. Captions
31.0 Captions or descriptive words at the commencement of the various
sections are inserted only for convenience and are in no way to be
construed as a part of Agreement or as a limitation upon the scope of
the particular section to which they refer.
32. Benefit
32.0 This Agreement shall enure to the benefit of and be binding upon Arran,
its successors and permitted assigns.
33. Waiver
33.0 No condoning, excusing or waiver by any party hereto of any default,
breach of non-observance by any other party hereto, at any time or
times with respect to any covenants or conditions herein contained,
shall operate as a waiver of that party's rights hereunder with respect
to any continuing or subsequent default, breach or non-observance, and
no waiver shall be inferred from or implied by any failure to exercise
any rights by the party having those rights.
34. Further Assurances
34.0 Each of the parties hereto hereby covenants and agrees to execute such
further and other documents and instruments and to do such further and
other things as may be necessary to implement and carry out the intent
of Agreement.
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35. Cumulative Rights
35.0 All rights and remedies of Playstar and Arran are cumulative and are in
addition to and shall not be deemed to exclude any other rights or
remedies allowed by law except as specifically limited hereby. All
rights and remedies may be exercised concurrently.
36. Prior Agreements
36.0 Except as specifically provided for herein, this Agreement contains all
of the terms agreed upon by the parties with respect to the subject
matter herein and supersedes all prior agreements, Arrangements and
understandings with respect thereto, whether oral or written.
37. Severability
37.0 If any part of Agreement is unenforceable because of any rule of law or
public policy, such unenforceable provision shall be severed from
Agreement, and this severance shall not affect the remainder of
Agreement.
38. No Partnership
38.0 Notwithstanding anything in this Agreement, no part of this Agreement,
nor the Agreement as a whole shall be construed as creating a
partnership or agency relationship between the parties. If any part of
this Agreement should become construed as forming a partnership or
agency relationship, that part shall be amended such that no
partnership or agency relationship is created, but that part achieves
what it was originally intended to achieve.
39. Dollar Amounts
39.0 All references to money or specific dollar amounts in this Agreement
are in United Sates Dollars.
40. Interpretation
40.0 In the interpretation of this Agreement or any provision hereof, no
inference shall be drawn in favour of or against any Party by virtue of
the fact that one party or its agents may have drafted this Agreement
or such provision. Notwithstanding the above, if there is any
uncertainty in the interpretation of this Agreement, the uncertainty
arising in dispute shall be settled by arbitration in accordance with
Section 27.0 (entitled "Governing Law and Arbitration") of this
Agreement.
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IN WITNESS WHEREOF the parties have executed Agreement on the date
first written.
Arran Holdings Ltd.
Per: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name:
Title:
I have authority to bind the corporation.
Playstar Corporation
Per: /s/ Xxxxxxx Xxxxxxxxxx
-------------------------------------
I have authority to bind the corporation.
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