Exhibit 10.1
RECANTOAZAL
SOFTWARE LICENSE AGREEMENT
THIS AGREEMENT is entered into this 6th day of August, 2001,
BETWEEN:
RECANTOAZAL S.A., with registered offices in San Xxxx, Costa Rica;
(hereinafter referred to as "Recantoazal" or the "Licensee")
AND
UNITED Xxxxxxx.Xxx. with offices at 00000 XxxXxxxxx Xxxx., Xxxxx 000,
Xxxxxx, XX 92612;(hereinafter referred to as "United" or the "Licensor")
WHEREAS,
A. UNITED owns rights to Internet Casino and Sports Book software (the
"Software");
B. UNITED has licensed the use of the Software to Recantoazal; and
C. United and Recantoazal wish to enter into an new agreement revising the terms
of the previous agreements for the use of such Software.
NOW THEREFORE, in consideration of the premises and mutual covenants herein set
forth, the parties agree as follows:
1. GENERAL PROVISIONS
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1.1 DEFINITIONS
1.1.1 "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 UNITED for use
in connection with the licensed programs. The Licensed Software
shall consist of a Casino and Sports Book. The Casino shall have
various games of chance which includes, but are not limited to,
blackjack, double exposure blackjack video poker (jacks or better
and deuces wild), eight-way slot machine and Lottery. The Sports
Book Software shall have the ability to receive xxxxxx or bets on
sporting events from players throughout the world.
1.1.2 "Hardware" shall mean all the necessary computers, routers,
cabling, monitors, hard drives, back-up systems, and other
equipment as may be required in order to store, distribute and
run the Licensed Software.
1.1.3 "Games" shall mean the casino style games, that are played using
the Licensed Software and is available from time to time.
1.1.4 "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.
1.1.5 "Confidential Information" shall mean material in the possession
of UNITED 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 UNITED's
clients, any non-public information about affiliates,
subsidiaries, consultants and employees of UNITED 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 patentable, copyrightable or not, which is acquired or
developed by or on behalf of UNITED or its affiliates from time
to time.
1.2 INDEMNIFICATION
1.2.1 The Licensee acknowledges and agrees that neither UNITED nor any
of its members, shareholders, directors, officers, employees or
representatives will be liable to the Licensee or any of the
Licensee's customers 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 UNITED to the Licensee under this Agreement. If, despite the
foregoing limitations, UNITED or any of its shareholders,
directors, officers, employees or representatives should become
liable to the Licensee or any other person (a "Claimant") in
connection with this Agreement, then the maximum aggregate
liability of UNITED, its members, shareholders, directors,
officers, employees and representatives for all such things and
to all such parties will be limited to the lesser of the actual
amount of loss or damage suffered by the Claimant or the amount
of the Licensee's fees payable by the Licensee to UNITED for the
six months prior to the loss.
1.2.2 The Licensee shall indemnify and save harmless UNITED 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 the Licensee's activities under this Agreement,
including claims brought by a person using or relying upon any
advice given or publication produced and distributed by the
Licensee.
1.2.3 Notwithstanding anything in this Section 1.2, if UNITED is found
guilty of fraud in executing its' obligations under this
Agreement, the Licensee shall not be responsible for any
indemnification of the Indemnified Parties to the extent that the
fraud has caused there to be damages.
1.3 CONDITIONS OF LICENSE
This license is granted under the following conditions:
1.3.1 UNITED and the Licensee acknowledges that its rights in and to
the Licensed Software may be assigned, re-licensed or otherwise
transferred by operation of law without the prior written consent
of UNITED, provided however that any net proceeds from such
assignment, re-license or transfer will be included in the
remuneration to UNITED as outlined in Section 1.5 below, and that
Licensee is responsible for all communication with the Sub-
licensee and UNITED will have no responsibility in this regard;
1.3.2 UNITED shall not be responsible for failure of or performance of
the Software.
1.3.3 UNITED acknowledges that this is an exclusive agreement with
Licensee and that UNITED will not license the Licensed Software
to any other party.
1.3.4 The Licensee 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.
1.4 TERM AND TERMINATION
1.4.1 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 five-(5)years and (the "Term") and shall
automatically terminate at the end of such period.
1.4.2 Licensee may terminate this Agreement at any time by giving
written notice to UNITED and returning all copies of the Software
to UNITED.
1.4.3 UNITED may terminate this Agreement if Licensee is in violation
of this Agreement and remains in violation thirty (30) days
following notice in writing to Licensee by UNITED of such
violation, in which case Licensee shall immediately return all
copies of the Software to UNITED.
1.4.4 UNITED may terminate this Agreement at any time upon thirty
(30) days notice if the Licensee becomes bankrupt or insolvent or
ceases carrying on business for any reason. In the event UNITED
terminates this Agreement under this section 1.4.4 and demands
return of the Software, UNITED agrees to reimburse Licensee for
necessary and documented costs incurred by Licensee to maintain
and upgrade the Software in an amount not to exceed seventy-five
thousand dollars ($75,000), which shall be deposited with
irrevocable instruction with a third party to be paid upon
delivery of the Software and all copies thereof.
1.4.5 Upon termination of this Agreement, based upon breach by the
Licensee, the Licensee shall immediately return to UNITED all
copies of the Software, and any and all of UNITED's materials
which UNITED has a proprietary right to in that they are in the
Licensee's possession and/or in the possession of the Licensee's
agents, servants and employees.
1.4.6 Upon termination of this Agreement, all Customer Information
shall be given to the Licensee and UNITED shall not make use of
or disclose any Customer Information to any third party.
1.5 REMUNERATION
1.5.1 The Licensee shall pay to UNITED a license fee equal to seven and
one-half percent (7.5%) of the net proceeds of any and all use of
the Software licensed under this Agreement. Net Proceeds is
defined as any revenues from the re-license, assignment of. or
other use of the Software by the Licensee or other user of the
Software less all costs of operations of the Licensee including
but not limited to , direct and indirect operating expenses of
the Internet connections, depreciation of furniture fixtures and
equipment, rent, salaries and wages of employees and consultants
to the Licensee, and other costs actually incurred in the
operation of Licensee's computer/Internet facility.
1.5.2 Net Proceeds shall be calculated on a quarterly basis and
UNITED's License fee as defined in this Section 1.5 shall be paid
to UNITED within thirty (30) calendar days following the end of
each calendar quarter.
1.5.3 UNITED, at its sole cost, shall have the right to audit any and
all of Licensee's financial records to verify the License Fee due
UNITED. Any such audit shall be conducted by an auditor approved
by the Licensee, which approval shall not be unreasonably
withheld, or appointed by a court of competent jurisdiction.
1.6 CONFIDENTIALITY
1.6.1 UNITED shall not disclose, publish, or disseminate customer
or other confidential Licensee information to anyone; and UNITED
agrees to take reasonable precautions to prevent any unauthorized
use, disclosure, publication, or dissemination of such
Information. UNITED agrees not to use such Information otherwise
for its own or any third party's benefit without the prior
written approval of an authorized representative of the Licensee
in each instance.
2.1 OBLIGATIONS OF THE LICENSOR
2.1.1 UNITED shall not be required to upgrade or otherwise maintain the
Software. Licensee takes license to the software in an "as-is"
condition, and assumes all responsibility to maintain the
Software.
2.1.2 Licensee shall repair and correct any problems that may arise
from time to time which would cause it to be unable to utilize
the Software as envisioned under this Agreement, and in
consideration thereof, UNITED shall transfer all of its right,
title and interest to the Licensee on the fifth (5th)anniversary
of the execution of this Agreement.
2.2 THE LICENSED SOFTWARE
2.2.1 Licensee shall be responsible for the installation of the
Licensed Software on the Hardware.
2.2.2 UNITED makes no warrantees that the Licensed Software correctly
implements algorithms, or that pseudo-random numbers used by the
software for the purposes of choosing game outcomes and shuffling
cards are generated in an unbiased manner. Licensee assumes all
responsibilities in this regard, and is granted full authority to
implement such outcomes as desired by Licensee.
2.3 FINANCIAL TRANSACTIONS
2.3.1 Licensee shall provide its own transaction processing system that
will allow the its customers to deposit funds for use of the
Games (the "Transaction Processing System").
2.3.2 UNITED shall not be responsible for processing credit card
transactions.
2.3.3 The Licensee shall be responsible for all aspects of collecting
and paying funds, in accordance with this Agreement.
2.3.4 UNITED shall have no rights whatsoever in or to the Transaction
Processing System and should this Agreement be terminated for any
reason, Licensee shall maintain any and all right thereto.
2.4 TECHNICAL SUPPORT
2.4.1 UNITED shall not be required to provide any Technical Support to
Licensee, and Licensee shall be responsible for any and all
maintenance of the Software.
3.1 OBLIGATIONS OF THE LICENSEE
3.1.1 Licensee shall supply the Hardware as defined in this Agreement.
3.1.2 Licensee shall maintain the Hardware and Software and pay all
costs for maintaining the Hardware and Software.
3.1.3 The Hardware shall, at all times, remain the property of
Licensee.
3.2 MARKETING
3.2.1 The Licensee shall be responsible for all marketing of the
services offered through the Licensed Software.
3.3 REGULATORY ISSUES
3.3.1 The Licensee shall be solely responsible for determining which
jurisdictions they choose to market to and receive xxxxxx from.
3.3.2 The Licensee shall be responsible for determining the legality of
accepting xxxxxx in whichever jurisdictions they choose to market
to and receive xxxxxx from.
3.4 THE WEB SITE
3.4.1 The Licensee shall construct and maintain the entire web site(s)
where the Software is to be made available to the Licensee's
customers (the "Web Sites").
3.4.2 The Licensee shall pay for any and all Uniform Resource Locators
("URL's") that the Licensee deems necessary to properly market
the Licensed Software.
3.4.3 The Licensee shall have the right to make any changes to the Web
Sites the Licensee feels appropriate. No changes will be effected
by UNITED.
3.4.4 UNITED shall not in any way be responsible for the design of the
Web Sites utilized by the Licensee.
4 STANDARD CLAUSES
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4.1 NOTICES
Unless otherwise provided in this Agreement, any notice provided for under
this Agreement shall be in writing and shall be sufficiently given if
delivered personally, or if transmitted by facsimile with an original
signed copy delivered personally within twenty-four hours thereafter, or
mailed by prepaid registered post addressed to UNITED at their respective
addresses set forth below or at such other than current address as is
specified by notice.
To UNITED: United Xxxxxxx.Xxx
00000 XxxXxxxxx Xxxx. Xxxxx 000
Xxxxxx, XX 00000
To the Licensee: Recantoazal S.A.
Apartado 90-1007 Centro Colom,
Paseo Colom, San Xxxx, Costa Rica
4.2 ENTIRE AGREEMENT AND SCHEDULES
The parties agree that this Agreement and its Schedule, if any, constitute
the complete and exclusive statement of the terms and conditions between
the Licensee and UNITED covering the performance hereof, and cannot be
altered, amended or modified except in writing executed by an authorized
representative of each party.
4.3 GOVERNING LAW AND ARBITRATION
Any dispute in connection with this Agreement shall be settled by
arbitration in accordance with any Arbitration Act agreed upon between the
parties; provided, however, should any dispute arise under this 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.
4.4 GOVERNING LAW
This agreement and all Schedules shall be governed by and construed in
accordance with the laws of Nevada, and the Licensee hereby attorns to the
jurisdiction of the courts of the state of Nevada notwithstanding any other
provision expressed or implied in either this agreement or the Schedules.
4.5 TIME TO BE OF THE ESSENCE
Time is of the essence.
4.6 NUMBER AND GENDER
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, an association and any other incorporated or unincorporated
organization or entity.
4.7 CAPTIONS
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 this Agreement or as a limitation upon the scope of the particular
section to which they refer.
4.8 NON-ASSIGNABILITY
This Agreement is personal to the Licensee, except as provided in S. 4.9,
and the Licensee may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of
UNITED.
4.9 BENEFIT
This Agreement shall enure to the benefit of and be binding upon the
Licensee, its successors and assigns. The Licensee may delegate the
performance of any of its obligations hereunder to any corporation which
controls, is controlled by or is under common control with the Licensee.
4.10 WAIVER
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 nonobservance, and no waiver shall be
inferred from or implied by any failure to exercise any rights by the party
having those rights.
4.11 FURTHER ASSURANCE
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
this Agreement.
4.12 CUMULATIVE RIGHTS
All rights and remedies of UNITED 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.
4.13 PRIOR AGREEMENTS
Except as specifically provided for herein, this Agreement, including its
Schedules, 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.
4.14 SEVERABILITY
If any part of this Agreement is unenforceable because of any rule of law
or public policy, such unenforceable provision shall be severed from this
Agreement, and this severance shall not affect the remainder of this
Agreement.
4.15 NO PARTNERSHIP
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.
4.16 DOLLAR AMOUNTS
All references to money or specific dollar amounts in this Agreement are in
United States Dollars.
4.17 INTERPRETATION
In the interpretation of this Agreement or any provision hereof, no
inference shall be drawn in favor of or against any party by virtue of the
fact that one party or its agents may have drafted this Agreement or such
provision.
4.18 COUNTERPARTS
This agreement may be executed in one or more counterparts, all of which
taken together shall constitute a single instrument.
UNITED XXXXXXX.XXX
By: ______________________________
Name: ____________________________
Title: ____________________________
Recantoazal, S.A.
By: ___________________________
Name: ___________________________
Title: ___________________________
