SOFTWARE LICENSE AGREEMENT
This Software License Agreement (the "License Agreement") is made effective
as of this 17 day of June, 1997 by and between Interactive Entertainment
Limited, a Bermuda exempted company, (f/k/a Sky Games International Limited)
("Licensor") and Xxxxxx'x Interactive Entertainment Company, a Nevada
corporation ("Licensee").
Recitals
A. Licensor owns, or has the right to grant license rights with respect
to, the software identified on Exhibit A hereto.
B. Licensor, SGI Holding Corporation Limited, Interactive Entertainment
Limited and Licensee have, prior to executing this License Agreement, entered
into a Plan and Agreement of Merger and Amalgamation dated as of May 13, 1997
(the "Merger").
C. Licensee and Licensor have agreed, that pursuant to the Merger,
Licensor shall grant to Licensee certain license rights to use the software
identified in Exhibit A.
D. Licensor and Licensee wish to establish in this License Agreement the
terms and conditions upon which Licensee may use the software identified in
Exhibit A.
NOW, THEREFORE, in consideration of the foregoing, of the covenants
contained herein, and of other good and valuable consideration, the parties
agree as follows:
1. DEFINITIONS
1.1 "Affiliate" means an entity, including but not limited to a
corporation, general partnership, business trust or joint venture, controlling,
controlled by or under common control of the referenced party.
1.2 "Company Premises" means any traditional casino venue (i.e., landbased
and river boat based casinos and casinos on Indian reservations) which the
Licensee or its Affiliates owns, operates, or manages.
1.3 "Derivative Software" means any enhanced or otherwise modified version
of the Software and/or Documentation created by Licensee pursuant to the license
set forth in Section 2.l (b) below.
1.4 "Documentation" means any user documentation or other written
documentation concerning the use and functioning of the Software supplied by
Licensor to Licensee with the
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Software.
1.5 "Licensee" means Xxxxxx'x and its Affiliates.
1.6 "Modifications" means any enhancements, upgrades, error corrections or
other modifications made to the Software and/or Documentation by Licensor during
the term of this License Agreement and put into use by Licensor for its own
business and/or commercially distributed to third parties.
1.7 "Non-Competitive Use" means any use on Company Premises for a
Permitted Purpose.
1.8 "Software" means, collectively, the software identified on Exhibit A
hereto.
1.9 "Source Code" means the source code for the Software.
2. GRANT OF LICENSE
2.1 Grant. Subject to compliance with the terms and conditions of this
License Agreement, Licensor grants to Licensee a fully paid up, nonexclusive,
worldwide license to:
(a) copy and use the Software and Documentation for a Non-Competitive
Use on Company Premises and only for Licensee's own internal purposes and for
copying for archival or backup purposes (the "Permitted Purposes"); and
(b) modify and create derivative works based upon the Software and
Documentation to the extent deemed necessary or desirable by Licensee to assist
Licensee's use of the Software for the Permitted Purposes. Any Derivative
Software created by Licensee pursuant to this Section 2.1 (b) will be deemed
Software subject to all the terms and conditions of this License Agreement.
2.2 Restrictions. Licensee has no right and agrees not to:
(a) use or copy the Software or Documentation for any use or purpose
other than the Permitted Purposes;
(b) use the Software or Documentation at any location other than on
Company Premises; or
(c) sell, license, transfer or otherwise distribute copies of the
Software or Documentation to third parties, or use the Software or Documentation
for service bureau or other commercial service operations for the benefit of
third parties.
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2.3 Condition to Right to Copy and to Make Derivative Works of the
Software and Documentation. As a condition to Licensee's right to make copies of
the Software and Documentation and to make derivative works based upon the
Software and Documentation as set forth in Section 2.1 above, Licensee will
reproduce all copyright and other notices contained on the original copies of
the Software and Documentation supplied by Licensor hereunder on each copy of
the Software and Documentation made by Licensee and on Derivative Software made
by Licensee, including the placement of such notice on the first screen on any
computer, video or other display device.
2.4 Supply and Use of Source Code. Upon the request of Licensee, Licensor
agrees to supply a copy of the Source Code for all or a portion of the Software
licensed hereunder for use by Licensee solely in pursuit of its rights to create
Derivative Software set forth in Section 2.1 (b) above. Licensee acknowledges
that the Source Code is the proprietary and confidential information of
Licensor. Licensee will keep the Source Code strictly confidential within its
own organization, and will not disclose the Source Code to any third party other
than to those of its own employees and contractors who have a need to know and
who have been informed in advance of Licensee's obligations with respect to the
Source Code and who have agreed to abide by such obligations. Licensee will use
the Source Code only within Company Premises. Licensee will take all reasonable
steps to protect the Source Code against unauthorized use or disclosure,
including but not limited to keeping copies of the Source Code stored on
removable physical media under lock and key when not actually in use for the
Permitted Purposes, and restricting access to copies of the Source Code in
electronic form through passwords or other appropriate security measures.
3. SUPPLY OF MODIFICATIONS
Licensor will have no obligation hereunder to provide the Licensee
modifications to the Software made by or on behalf of Licensor during the term
of this License Agreement, or to provide maintenance or support with respect to
the Software or Documentation, or to correct any errors therein that may be
discovered by Licensee.
4. PROPRIETARY RIGHTS
4.1 Proprietary Rights in Software and Documentation. The Software and
Documentation are proprietary to Licensor and all copies thereof will at all
times remain the property of Licensor, and will be returned to Licensor or
destroyed in accordance with the provisions of Section 9.5 below upon any
termination of this License Agreement or Licensee's rights hereunder with
respect to such Software and Documentation. Licensee agrees that any ideas,
concepts, know-how and techniques contained in the Software and Documentation
that Licensor does not otherwise make freely publicly available, or that become
publicly available without breach of this License Agreement, will be kept
confidential by Licensee and will not be disclosed by Licensee to any person
other than Licensee's own employees or consultants who
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have a need to know, unless Licensor gives its express prior written consent to
disclosure thereof. Licensee will exercise no less care to safeguard such
confidential information than it uses to safeguard its own confidential
information, and in no event less than reasonable care.
4.2 Proprietary Rights in Derivative Software. Any versions of Derivative
Software created by Licensee hereunder are proprietary to and will be owned by
Licensee. Licensee agrees that it will use and otherwise exploit said
Derivative Software subject to the same terms, conditions and restrictions as
the original Software provided by Licensor.
5. COMPLIANCE WITH EXPORT AND OTHER LAWS
Licensee acknowledges that the Software or Documentation may be subject to
United States export control laws and regulations. Licensee agrees to comply
with all such laws and regulations at all times and not to use, copy, export or
distribute any copy of the Software or Documentation other than in full
compliance with such laws and regulations. Licensee agrees to comply at all
times with all other applicable laws and regulations in Licensee's exercise of
its rights hereunder with respect to the Software and Documentation.
6. LIMITED INFRINGEMENT INDEMNITY
6.1 Indemnity. Licensor will, subject to the limitations set forth in
Section 8 below, at its expense defend Licensee against, and pay all costs and
damages made in settlement or awarded against the other party resulting from, a
claim that any Software or Documentation as supplied by Licensor hereunder
infringes a United States patent, or a copyright, trade secret or trademark
valid anywhere in the world, provided that Licensee (a) gives Licensor prompt
written notice of any such claim, (b) allows Licensor to direct the defense and
settlement of the claim, and (c) provides Licensor with the authority,
information and assistance that Licensor deems reasonably necessary for the
defense and settlement of the claim. If a final injunction is obtained in an
action based on any such claim against Licensee's use of such Software or
Documentation by reason of such infringement, or if in Licensor's opinion such
an injunction is likely to be obtained, Licensor may, at its sole option, either
(1) obtain for Licensee the right to continue using such Software or
Documentation, or (2) replace or modify such Software or Documentation so that
it becomes non-infringing, or (3) if neither (1) or (2) can be effected by
Licensor, instruct Licensee to return the Software and Documentation.
6.2 Limitations. Notwithstanding Section 6.1, Licensor will have no
liability for any infringement claim of any kind (1) to the extent it is based
on modification of the Software or Documentation other than by Licensor, with or
without authorization, or combination of such Software with software or hardware
not supplied by Licensor, if the claim would have been avoided by the use of
such Software apart from such combination or would have been avoided if such
Software or Documentation had not been modified or had been combined with other
hardware or software; or (2) to the extent it results from failure of Licensee
to use updated or modified software provided by Licensor for avoid infringement
or a reason related thereto.
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Licensee agrees to defend and indemnify Licensor against any such claim to the
extent set forth in this Section 6.2, subject to the same three conditions set
forth in the first sentence of Section 6.1 above (with Licensor's and Licensee's
names reversed).
6.3 Entire Liability. THE PROVISIONS OF THIS SECTION 6 SET FORTH THE
ENTIRE LIABILITY OF LICENSOR AND THE SOLE REMEDIES OF LICENSEE WITH RESPECT TO
INFRINGEMENT AND ALLEGATIONS OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR
OTHER PROPRIETARY RIGHTS OF ANY KIND OF ANY THIRD PARTY IN CONNECTION WITH THE
INSTALLATION, OPERATION, DESIGN, DISTRIBUTION OR USE OF ANY SOFTWARE AND
DOCUMENTATION LICENSED HEREUNDER.
7. DISCLAIMER OF WARRANTIES
ALL SOFTWARE AND DOCUMENTATION SUPPLIED TO LICENSEE IS SUPPLIED "AS IS"
WITHOUT WARRANTY OF ANY KIND, AND EACH PARTY EXPRESSLY DISCLAIMS ANY WARRANTIES,
BOTH EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
8. LIMITATIONS OF LIABILITY
8.1 DISCLAIMER OF CERTAIN TYPES OF LIABILITY. REGARDLESS WHETHER ANY
REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT
WILL LICENSOR BE LIABLE TO LICENSEE, WHETHER ARISING UNDER CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION,
OR OTHERWISE (EXCEPT FOR LIABILITY FOR INFRINGEMENT OF THE INTELLECTUAL PROPERTY
RIGHTS OF THE OTHER PARTY) FOR ANY LOST PROFITS, LOSS BY REASON OF PLANT
SHUTDOWN, NON-OPERATION OR INCREASED EXPENSE OF OPERATION, SERVICE
INTERRUPTIONS, CLAIMS OF CUSTOMERS, LOST DATA OR MESSAGES, LOST BUSINESS, LOST
GOODWILL, OR FOR ANY FORM OF SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES OF ANY KIND, EVEN IF LICENSOR HAS BEEN INFORMED IN ADVANCE OF
THE POSSIBILITY OF SUCH DAMAGES.
8.2 GENERAL LIMITATION OF LIABILITY. IN NO EVENT WILL LICENSOR'S TOTAL
CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY,
MISREPRESENTATION, OR OTHERWISE (EXCEPT FOR LIABILITY FOR INFRINGEMENT OF THE
INTELLECTUAL PROPERTY RIGHTS OF THE OTHER PARTY), EXCEED ANY AMOUNTS ACTUALLY
PAID TO IT BY LICENSEE PURSUANT TO THIS LICENSE AGREEMENT.
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8.3 General. The parties agree that Licensor has entered into this License
Agreement in reliance upon the disclaimers of liability set forth herein, that
the same reflect an allocation of risk between the parties (including the risk
that a contract remedy may fail of its essential purpose and cause consequential
loss), and that the same form an essential basis of the bargain between the
parties.
9. TERM AND TERMINATION
9.1 Term. This License Agreement will commence on the date hereof and
shall be perpetual, unless earlier terminated in accordance with the provisions
hereof.
9.2 Termination Upon Notice of Breach. In the event that Licensee commits
a material breach of any term or condition of this License Agreement, and such
material breach is not cured within sixty (60) days of written notice of the
same from the other party, then Licensor may, in addition to any other remedy
that it may have at law or in equity or under this License Agreement, terminate
this License Agreement.
9.3 Termination by Licensor. In the event that Licensor or its affiliates
are unable to obtain, after request or application therefor, or maintain the
approval or license of any regulatory authority in any country, state, or
political subdivision anywhere in the world to conduct or operate gaming
operations due to Licensor's relationship with Licensee as contemplated by this
Agreement or any such approval or license held by Licensor is denied, revoked,
or suspended due to Licensor's relationship with Licensee as contemplated by
this Agreement, then the parties agree to negotiate promptly in good faith to
alter or amend the terms of this Agreement and/or the structure of the
relationship contemplated by this Agreement in order to obtain or maintain such
approval or license and to carry out the intent of this Agreement. If after
such negotiations, Licensor is still unable to obtain or maintain such approval
or license and carry out the intent of this Agreement, the Licensor may
terminate the License Agreement upon 120 days prior written notice to Licensee.
9.4 Termination by Licensee. Licensee may at its option terminate this
License Agreement for any reason upon ten (10) days prior written notice to
Licensor.
9.5 Effect of Termination. All licenses granted by Licensor to Licensee
will automatically cease as of the date of termination of this License
Agreement, and Licensee will thereafter cease all use and copying of the
versions of the Software and Documentation. Upon any termination becoming
effective, Licensee will, within ten (10) business days thereafter, return to
Licensor all copies of the Software and Documentation licensed to it hereunder
or, at the option of Licensee with the advance consent of Licensor, destroy all
such copies and certify to Licensor in writing by an officer of Licensee that
Licensee has done so. Under no circumstance will either party be entitled to a
return of monies paid before such expiration or termination. The provisions of
Sections 4, 6, 8, and 10 of this License Agreement will survive
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the expiration or termination of this License Agreement.
10. GENERAL
10.1 Assignment. This License Agreement may not be assigned, in whole or in
part, by Licensee without the prior written consent of Licensor, provided that
Licensee's rights hereunder may be assigned and delegated by Licensee: (i) by
operation of law; (ii) to an Affiliate of Licensee; and (iii) to anyone
acquiring all or substantially all of the assets or stock of Licensee. Subject
to the foregoing, the terms and conditions of this license will issue to the
benefit of and be binding upon the respective successors and assignees of the
Licensee.
10.2 Communications. All notices and demands which may be or are required
to be given by either party to the other hereunder shall be in writing and shall
be personally delivered or sent by United States certified or registered mail,
postage prepaid, or by prepaid express mail or overnight courier. Notices and
demands delivered personally shall be deemed given on the date of delivery.
Notices and demands delivered by mail shall be deemed given three business days
after deposit in the United States mail, and notices and demands delivered by
express mail or overnight courier shall be deemed given one business day after
deposit.
Notices sent to Licensor shall be addressed as follows:
Interactive Entertainment Limited
000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
with a copy to: Xxxxxxxx Xxxxxx
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
and to: Altheimer & Xxxx
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
or to such other person or place as Licensor may from time to time designate in
a written notice to Licensee.
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Notices sent to Licensee shall be addressed as follows:
Xxxxxx'x Interactive Entertainment Company
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx'x Entertainment, Inc.
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx X. XxXxxxxx
Facsimile: (000) 000-0000
or to such other person or place as Licensee may from time to time designate in
a written notice to Licensor.
10.3 Governing Law. This License Agreement will be governed by and
construed in accordance with the laws of the State of Tennessee, without regard
to or application of choice of law rules or principles.
10.4 Multiple Counterparts. This License Agreement may be executed in any
number of counterparts, each such counterpart being deemed to be an original
instrument, and such counterparts will together constitute the same agreement.
This License Agreement may be executed by the attachment of signature pages
which have been previously executed.
10.5 Amendment in Writing. No addition to or modification of any provision
of this License Agreement will be binding upon either party unless made in
writing and signed by a duly authorized representative of both parties. This
License Agreement cannot be changed or terminated orally and the parties
acknowledge that no representative of a party has the authority to alter the
terms of this License Agreement except in a writing executed by a properly
authorized representative of that party.
10.6 Severability. Should any provision of this License Agreement be
declared, or found to be illegal, unenforceable or void, both parties will be
relieved of all obligations arising under that provision. If the remainder of
this License Agreement is capable of substantial performance, the remainder of
this License Agreement will remain in full force and effect.
10.7 No Right to Use Names. Nothing contained in this License Agreement
will be construed as conferring any right to use in advertising, publicity, or
other promotional activities
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any name, trade name, trademark, logo, or other designation of one party by the
other party hereto (including any contraction, abbreviation or simulation of any
of the foregoing).
10.8 Cumulative Rights. All rights and remedies enumerated in this
License Agreement will be cumulative and none will exclude any other right or
remedy permitted herein or by law.
10.9 Relationship Between the Parties. Nothing contained herein is
intended to create a relationship between the parties other than as independent
contractors. Neither party hereto has undertaken to perform any obligation of
the other party or to assume any responsibility for the business or operations
of the other. Nothing herein will be construed to allow either party to bind the
other.
10.10 Waiver of Breach. Waiver by either party of nonperformance or any
other breach of any provision of this License Agreement will not operate as a
waiver of any subsequent nonperformance or other breach of the same or any other
provision. The failure by a party to exercise any of its rights under this
License Agreement will not be deemed to constitute a waiver of any of such
rights, or other rights or remedies available to such party.
10.11 Compliance with Law. Under no circumstances will any provision of
this License Agreement require Licensor or Licensee to do anything that violates
any applicable law or regulation of the United States or any of its states or
respective political subdivisions, or any other jurisdiction in which the
Licensor or Licensee may do business from time to time.
10.12 Entire Agreement. This License Agreement between the parties
constitutes the entire agreement between the parties with respect to the subject
matter hereof, and all prior agreements, representations, and statements with
respect to such subject matter are superseded thereby.
10.13 Headings. The headings contained in this License Agreement are
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this License Agreement.
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IN WITNESS WHEREOF, the parties have executed this License Agreement through
their duly authorized representatives as set forth below:
LICENSOR: LICENSEE:
Interactive Entertainment Limited, Xxxxxx'x Interactive Entertainment
f/k/a Sky Games International Ltd. Company
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxx
------------------------------ ------------------------------------
Title: Director Title: Senior Vice President
--------------------------- ---------------------------------
RECEIPT
Pursuant to Provision 2.4 of the Software License Agreement (the
"Agreement") dated June 17, 1997 by and between Interactive Entertainment
Limited (f/k/a Sky Games International Limited) ("Licensor") and Xxxxxx'x
Interactive Entertainment Company ("Licensee"), the undersigned, on behalf of
the Licensee, hereby acknowledges receipt of the Software as referenced in
Exhibit A of the Agreement and a copy of the Source Code for the Software. A
copy of Exhibit A of the Agreement is attached hereto.
Receipt is hereby acknowledged this 17th day of June, 1997.
XXXXXX'X INTERACTIVE ENTERTAINMENT COMPANY
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Title: Senior Vice President
----------------------------------
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Confidential treatment has been requested for the remainder of this document.
Document headings are provided.
Exhibit A
Product Description and Requirements
Introduction
The Gaming Entertainment Experience
The Games
Customer Defined Options
Gaming Application Flow Diagrams
Sky Games Technical Description and Requirements
System Design Features
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