Exhibit 10.4
MAINTENANCE AGREEMENT
This MAINTENANCE AGREEMENT (the "Agreement") is made and entered into as of
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December 19, 2001, effective as of the Effective Date (as hereinafter defined)
between Advanced Casino Systems Corporation, a Delaware corporation, located at
000 Xxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxxx Xxxxxxxx, Xxx Xxxxxx 00000 ("ACSC"),
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HWCC-Tunica, Inc., a Texas corporation, located at 0000 Xxxxxx Xxxxx Xxxxxxxxx,
Xxxxxxxxxxxxx, Xxxxxxxxxxx 00000 ("Licensee").
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A. Greate Bay Casino Corporation, PPI Corporation, ACSC and ACSC
Acquisitions, Inc. ("Buyer") are entering into a Stock Purchase Agreement of
even date herewith (as amended from time to time, the "Purchase Agreement"),
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which provides (subject to the conditions set forth therein) for the transfer of
all of the outstanding shares of capital stock of ACSC to Buyer (the
"Transfer").
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B. In connection with, and as a condition and inducement to each party's
willingness to enter into the Purchase Agreement, ACSC has granted to Licensee
certain rights and licenses to the Licensed Products (as defined herein)
pursuant to a License Agreement entered into as of even date herewith ("License
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Agreement").
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C. In connection with the License Agreement, ACSC shall provide to Licensee
support and maintenance for the Licensed Products (as defined herein) in
accordance with, and subject to, the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements of the parties set forth below, ACSC and Licensee agree
as follows:
1 DEFINITIONS
1.1 "Affiliate" shall mean any person that controls, is controlled by, or is
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under common control with another company.
1.2 "Error" shall mean the failure of a Licensed Product to meet the published
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specifications for such Licensed Product.
1.3 "Intellectual Property Rights" means any and all intellectual property and
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industrial property rights, including, without limitation, patents, patent
rights, copyrights, work of authorship, moral rights, trademarks, trade secrets
and all applications and registrations of all of the foregoing.
1.4 "Location" means the Licensed Site(s) (as defined in the License Agreement)
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to which ACSC will provide Support pursuant to this Agreement, as set forth on
Attachment A, as well as any sites that exclusively provide support for the
Licensed Sites and are located less than twenty (20) miles from the Licensed
Site.
1.5 "Object Code" means software in the form not readily perceivable by humans
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and suitable for machine execution without the intervening steps of
interpretation or compilation.
1.6 "Source Code" means software in human readable form that is not suitable for
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machine execution without the intervening steps of interpretation or
compilation.
1.7 "Supported Hardware" means the proprietary hardware components licensed to
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Licensee under the License Agreement that are subject to support and maintenance
under this Agreement, including, without limitation, the hardware components
identified on Attachment A.
1.8 "Supported Products" means, collectively, the Supported Hardware and
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Supported Software.
1.9 "Supported Software" means the software (Source Code and Object Code)
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licensed to Licensee under the License Agreement that is subject to support and
maintenance under this Agreement, including, without limitation, the software
identified on Attachment A.
2 EFFECTIVE DATE
This Agreement will become effective automatically and without any further
action by ACSC or Licensee upon the consummation of the Transfer (such date on
which this Agreement becomes effective, is referred to herein as the "Effective
Date").
3 PROGRAM SUPPORT AND MAINTENANCE
3.1 Support. ACSC shall provide the support and maintenance services as
described herein ("Support") at the Locations for all Supported Products. ACSC
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will provide such Support both during implementation and production use. ACSC
will use its best efforts to cure, as described below, all Errors in the
Supported Products so that such Products perform in all material respects the
functions described in the associated documentation. ACSC shall maintain a
telephone support hotline, 24 hours a day, 7 days a week. If Licensee's use of a
Supported Product is prevented or impacted such that Licensee cannot reasonably
continue using such Supported Product, ACSC will commence work on such Error
within twenty-four hours of notification from Licensee and will engage its
development staff until a work-around that is reasonably satisfactory to ACSC
and Licensee is achieved. For all other Errors reported to ACSC by Licensee,
ACSC will commence work on the reported Error within forty-eight hours of
notification during its normal technical support business hours and will engage
its development staff until a workaround that is reasonably satisfactory to ACSC
and Licensee is achieved. If an Error remains unsolved after ACSC attempts to
remedy the Error remotely with the assistance of Licensee, ACSC will dispatch a
qualified ACSC representative to the applicable Location to assist in the remedy
of such Error. If Licensee requests information or clarification regarding the
Supported Products but there is no impact on the operation of the Supported
Products, ACSC will provide an initial response regarding the requested
information or clarification within forty-eight (48) hours of notification
during its normal technical support business hours.
3.2 Updates. If ACSC develops an upgrade, enhancement or update to an existing
Supported Product ("Update"), ACSC shall make such Update available to Licensee
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at rates consistent with the terms of Section 6. ACSC shall promptly provide a
notice to Licensee of any such available Updates. If Licensee desires to
implement an Update, it will notify ACSC, and ACSC will provide promptly such
Update to Licensee in appropriate format for use with the applicable Supported
Product. Upon Licensee's request, ACSC will install an Update at rates
consistent with the terms of Section 6 and Licensee shall also pay such portion
of travel and living expenses incurred by ACSC consistent with the terms of
Section 6.
3.3 Additional Support. Support for additional Supported Products may be ordered
by Licensee, from time to time, and added to Attachment A. All such additional
Support shall be priced in a manner consistent with the terms of Section 6.
3.4 Other Services. If Licensee requires any services not listed above,
including, without limitation, after hours service, ACSC shall provide such
services at rates consistent with the terms of Section 6.
3.5 Travel Expenses. In the event on-site Support is necessary, Licensee shall
pay such portion of travel and living expenses for the on-site ACSC personnel
3.6 Designated Agent. ACSC may authorize an organization to provide the Support
required under this Agreement which organization must be reasonably acceptable
to Licensee ("Designated Agent"). The Designated Agent may perform any or all
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Support tasks associated with the terms of this Agreement as directed by ACSC;
provided that ACSC shall remain responsible and liable for such Support. For
purposes of this Agreement regarding Support, ACSC refers to either ACSC or its
Designated Agent.
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3.7 Ownership. All programming materials, including, but not limited to,
documentation and local fixes or bypasses developed and supplied by ACSC to
Licensee under this Agreement, are the property of ACSC and may be provided by
ACSC to others. All of the foregoing are included within the definition of
Supported Products under this Agreement and licensed to Licensee as Licensed
Products under the License Agreement.
3.8 Confidentiality. Each party shall take all measures reasonably requested by
the other to protect the trade secrets and proprietary rights of such other
party and will maintain such in confidence in accordance with the terms of the
License Agreement.
4 LICENSEE RESPONSIBILITIES
Licensee shall designate and provide ACSC with a liaison coordinator and
alternate ("Support Coordinator") to coordinate the provision of Support by ACSC
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to Licensee. Licensee shall be responsible for maintaining appropriate back-up
procedures external to the Supported Products for reconstruction of any lost or
altered files, data, or programs. When a problem occurs which Licensee believes
is related to an Error in any Supported Product, Licensee's Support Coordinator
will contact ACSC and will perform appropriate problem definition activities and
remedial actions, as prescribed by a qualified ACSC representative, prior to the
dispatch of a qualified ACSC representative to the applicable Location.
Furthermore, in the event that Licensee modifies the Supported Products in any
manner, Licensee must provide ACSC with the source and object code for the
modified version of such Supported Software at least thirty (30) days prior to
requesting support for such modified Supported Product under this Agreement. In
the event that ACSC determines that it is unable to support the modified
Supported Product as a direct result of such modifications, the provisions of
Section 8.2 shall apply.
5 CHARGES
5.1 Support Charges. For the Supported Products at each Location, Licensee will
pay to ACSC an annual support charge as set forth and defined in Attachment A
("Support Charges"). ACSC may modify the Support Charges for a renewal term, so
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long as the modified Support Charges are in an amount consistent with Section 6,
by providing to Licensee such modified Support Charges at least sixty (60) days
prior to the commencement of such renewal term.
5.2 Payment. Support Charges will be invoiced annually and paid in advance.
Other charges, if any, will be invoiced in the month after such charges have
been incurred. All payments to be made hereunder shall be made by Licensee
within thirty (30) days after the date of receipt of invoice.
5.3 Taxes. In addition to the charges due under this Agreement, Licensee shall
pay any taxes incurred as a result of the Support and other services performed
under this Agreement, exclusive of any taxes based on the net income of ACSC.
6 MOST FAVORED CUSTOMER
The pricing offered by ACSC to Licensee, and the related terms, for the
Support and other services provided under this Agreement shall be at least as
favorable to Licensee as any pricing or terms offered by ACSC to any other
casino operating company. For the purposes of this Agreement, the pricing and
related terms offered to any other casino operating company shall include the
number of installed and supported locations, the type of services offered, the
response times associated with such services and any related purchases that
would otherwise effect the value that ACSC receives from the other casino
operating company. To the extent the existing or future contractual arrangements
for such Support and services do not afford Licensee the most favorable pricing
and terms described above, such arrangements will be amended to promptly provide
Licensee with such.
7 EXCLUSION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES
Independent of, severable from, and to be enforced independently of any
other enforceable or unenforceable provision of this Agreement, NEITHER PARTY
WILL BE LIABLE TO THE OTHER PARTY NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM
THE OTHER PARTY'S RIGHTS FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR
EXEMPLARY DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, AND LOSS OF BUSINESS AS A
RESULT OF BREACH OF ANY TERM OF THIS AGREEMENT, REGARDLESS OF WHETHER THE PARTY
LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT
KNEW OF THE POSSIBILITY THEREOF.
8 TERM; TERMINATION
8.1 Term of License. This Agreement is effective from the Effective Date and
shall remain in force for twelve (12) months from the Effective Date ("Initial
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Term"). After the Initial Term, this Agreement will be renewed automatically for
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successive twelve (12) month renewal terms, unless either party notifies the
other of its intent to terminate the Agreement at least fifteen (15) days prior
to the commencement of any renewal term (the Initial Term and all such renewal
terms, collectively, the "Term").
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8.2 Termination. Either party may terminate this Agreement upon written notice:
(a) if the other party breaches any material provision of this Agreement and
does not cure such breach within thirty (30) days after receiving written notice
from the non-breaching party describing such breach; or (b) if the other party
becomes insolvent or seeks protection under any bankruptcy, receivership, trust
deed, creditor's arrangement, composition or comparable proceeding or if any
such proceeding is instituted against the other party (and not dismissed within
ninety (90) days). If Licensee modifies the Supported Products and, as a direct
result of such modification, ACSC reasonably determines that it is unable to
maintain the Licensed Products through commercially reasonable efforts, ACSC may
terminate this Agreement upon sixty (60) days prior written notice to Licensee.
Licensee may terminate this Agreement upon thirty (30) days prior written notice
to ACSC. Upon early termination of this Agreement for any reason, ACSC shall
refund to Licensee any pre-paid amount for Support on a pro-rata basis.
8.3 Rights and Remedies. All rights and remedies available to either party under
this Agreement or at law or in equity, unless specifically foreclosed by this
Agreement, may be pursued successively or singly, and without prejudice to any
other right or remedy available to such party, it being the intention of the
parties that all rights and remedies available to the parties are cumulative
9 ENTIRE AGREEMENT
This Agreement, Attachment A and all other Attachments attached to this
Agreement and made a part of it, together with the License Agreement and the
Side Letter Agreement between ACSC and Licensee dated as of the date hereof (the
"Letter Agreement"), constitutes the entire agreement between the parties
concerning the subject matter hereof. Other than the License Agreement and
Letter Agreement, no prior or contemporaneous representations, inducements,
promises, or agreements, oral or otherwise, between the parties with reference
to the subject matter of this Agreement will be of any force or effect. In the
event of an omission or inconsistency between this Agreement and the License
Agreement, the provisions of the License Agreement shall apply.
10 GENERAL PROVISIONS
10.1 Independent Parties. The parties are independent contractors. No
partnership or joint venture is intended to be created by this Agreement, nor
any principal-agent or employer-employee relationship. Neither party has, and
neither party shall attempt to assert, the authority to make commitments for or
to bind the other party to any obligation.
10.2 Injunctive Relief. Each party acknowledges that any violation by it of its
covenants in this Agreement to the other may result in damages that are largely
intangible but nonetheless real, and that is incapable of complete remedy by an
award of damages. Accordingly, any such violation shall give the other party the
right to seek a court ordered injunction or other appropriate equitable relief
to specifically enforce those covenants.
10.3 Amendments. No modification or amendment to this Agreement will be valid or
binding unless reduced to writing and duly executed by the party or parties to
be bound thereby.
10.4 Severability. If for any reason a court of competent jurisdiction finds any
provision of this Agreement, or portion thereof, to be unenforceable, that
provision or portion shall be enforced to the maximum extent permissible so as
to effect the intent of the parties, and the remainder of this Agreement shall
continue in full force and effect.
10.5 Notices. Every notice required or contemplated by this Agreement to be
given by either party may be given by hand delivery, by overnight commercial
courier delivery service or express mail, by facsimile, or by certified mail
return receipt requested addressed to the party for whom it is intended, at the
address specified in this Agreement. Either party may change its address for
notice by giving notice to the
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other party of the change. Any notice under this Agreement shall be deemed
delivered on the date of hand delivery, the next business day after delivery to
an overnight commercial courier service or to the United States Postal Service
for express mail for delivery on the next business day, the date faxed, if
electronic confirmation of delivery is obtained and retained, or three (3) days
after mailing by certified mail return receipt requested.
10.6 Choice of Law. This Agreement will be interpreted and enforced in
accordance with the law of the State of Delaware except that the conflicts of
laws principles of Delaware shall not apply so as to make the law of another
jurisdiction applicable.
10.7 Attorneys' Fees. Except as otherwise provided in this Agreement, in the
event of any dispute arising out of or relating to this Agreement, or an alleged
breach thereof, each party will be responsible for and pay its own respective
attorneys' fees and expenses.
10.8 No Waiver. None of the terms of this Agreement, or any term, right, or
remedy hereunder shall be deemed waived unless such waiver is in writing and
signed by the party to be charged therewith.
10.9 Binding on Successors. This Agreement will be binding upon and inure to the
benefit of the parties and their successors and assigns permitted by this
Agreement.
10.10 Section Headings. The section contained in this Agreement are for
reference purposes only and shall not in any way control the meaning or
interpretation of this Agreement.
10.11 Review and Mutual Negotiation. This Agreement shall be deemed to have been
negotiated and prepared at the joint request, direction, and construction of the
parties, at arms' length, and will be interpreted in accordance with its terms
without favor to any party. The parties hereto have reviewed this Agreement, and
the normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party are not to be employed in the interpretation
of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the Effective Date.
HWCC-TUNICA, INC. ADVANCED CASINO SYSTEMS CORPORATION
By: By:
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Name: Name:
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Title: Title:
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ATTACHMENT A
1. Location
0000 Xxxxxx Xxxxx Xxxxxxxxx,
Xxxxxxxxxxxxx, Xxxxxxxxxxx 00000
2. Supported Software
Slot Management System (SMS(TM)) Software-
Includes All SMS(TM) System Component Software
With Electronic Withdraws and Deposits Feature plus
Slot Accounting and Management Software
SMS(TM) Graphic Monitor Software
Delphi Slot Analysis Module
Scale Interface
Currency Counter Interface
Casino Management System (CMS) Software -
Includes the following modules:
Casino Accounting & Management
Patron Ratings, Club & Complimentaries
Groups Management & Analysis
Invitation System
Extract Management
Direct Mail System
Sweepstakes Management
Credit & Credit Bureau Interface
Casino / Hotel Interface (LMS Only)
Games Analysis
Table Management System (TMS) Software
3. Supported Hardware
Proprietary Hardware Components
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SMS(TM) In-Game hardware
SMS(TM) base wiring
System require hardware
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Gearbox with Arctic Cards & Optic Rack
XXXX File servers - Hot and Back-up
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Additional Supported Items(or functional equivalents)
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Table Games Management License
TMS Workstations
Tele-marketing module
Voice Response Module
IGT Extended SAS Protocol
Seagull Seats - GUI Interface licenses
Showcase Warehouse Manager License
with ReportWriter/Query
ACSC/Showcase Modules:
ReportWriter/Query: Pro-forma, Estract & Upload
ReportWriter/Query: Market Segment
ReportWriter/Query: Groups Analysis
Graphic Display Units
Graphic Display Show Editor
Barcode Coupon System License
Seagull Server license
4. Support Charges
SMS support services $ 40,000
Includes Slot Marketing System and Slot Accounting
Graphic monitor system software 1,440
Toledo scale interface 1,056
Toshiba currency counter interface 1,056
Delphi slot analysis module Included in SMS
In-game hardware $2.50 per game per month
CMS support services 43,650
TMS maintenance 12,375
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