Exhibit 10.11
[CASINO DATA SYSTEMS LOGO]
OASIS(TM) VERSION 11.0 SYSTEM
PURCHASE AGREEMENT AND LICENSE
MOUNTAINEER PARK, INC.
DBA MOUNTAINEER RACE TRACK & GAMING RESORT
This OASIS(TM) VERSION 11.0 SYSTEM PURCHASE AGREEMENT AND LICENSE ("the
Agreement"), entered into thIS 30th day of December, 2000, is by and between
CASINO DATA SYSTEMS, a Nevada corporation, ("CDS" or "LICENSOR"), and
MOUNTAINEER PARK, INC., a West Virginia Corporation ("BUYER" or "LICENSEE"),
doing business as MOUNTAINEER RACE TRACK & GAMING RESORT at State Xx. 0 Xxxxx,
Xxxxxxx, Xxxx Xxxxxxxx 00000 (the "Location").
RECITALS
WHEREAS, BUYER desires to purchase certain computer hardware and
related equipment for use at the Location to enable it to utilize certain
software, a license for which is granted below, to monitor and report various
slot gaming activities and to perform various player tracking activities; and
WHEREAS, CDS desires to sell to BUYER, the hardware and license the
software components integral to its OASIS(TM) Version 11.0 Slot Information
System (the hardware and the software collectively comprise the "SYSTEM") for
use as an independent SYSTEM at the Location; and
NOW THEREFORE, in consideration of the promises and mutual covenants
and agreements contained herein and other good and valuable consideration, the
parties agree as follows:
AGREEMENT
1. INCORPORATION OF RECITALS
The foregoing recitals are, by this reference, incorporated herein and
constitute material terms and conditions of this Agreement.
2. HARDWARE PURCHASED
A. CDS shall sell to BUYER and BUYER shall purchase from CDS, the
equipment and components described in EXHIBIT "A" (attached hereto and
incorporated by reference), which constitutes the in-machine and network
hardware (excluding computers or associated equipment) of the SYSTEM (hereafter,
the hardware portion shall be referred to as the "System Hardware"), at the
Location. The parties agree that the scope of the System Hardware needs is set
forth in the EXHIBIT "A," and as reflected in the purchase price, is for a
SYSTEM which will utilize the OASIS(TM) Version 11.0 accounting and player
tracking features identified IN EXHIBIT "A" on all machines coupled to the
SYSTEM. The System Price includes generic overlays for card reader assemblies.
If BUYER requires different overlays, BUYER shall purchase the overlays from a
graphics company of their choice. The System Hardware may only be used with the
Software licensed hereunder.
B. Payment of any applicable sales or use tax shall be the
responsibility of BUYER, and no provision has been made herein for the
collection or payment of such tax. In the event such tax, or any similar tax or
fee related to the sale, license or use of the SYSTEM is imposed, payment for
such amount shall be the sole responsibility of BUYER.
3. CONSIDERATION AND PAYMENT
A. SYSTEM PRICE. The price for the SYSTEM (including discounts) at the
Location (FOB CDS Dock, Las Vegas, Nevada) to equip nineteen hundred (1900)
gaming devices is: One Million Seven Hundred Three Thousand Twenty Six and
25/100 Dollars ($1,703.026.25) (the "System Price"). The System Price includes
consideration for a software license, but excludes any "Associated Equipment,"
as defined in Section 12 below, and excludes any sales or use taxes which are
the responsibility of BUYER and collected by CDS, if required. EXHIBIT "A"
contains a complete schedule of the System Price, System Hardware, Software,
incentives and discounts.
B. PAYMENT OF THE SYSTEM PRICE. The BUYER shall pay the System Price
for the Location in full in accordance with the schedule provided below:
(1) Forty percent (40%) of the total System Price in the amount of: Six
Hundred Eighty-One Thousand Two Hundred Ten and 40/100 Dollars
($681,210.40) shall be paid upon execution of this Agreement;
(2) Sixty percent (60%) of the total System Price in the amount of: One
Million Twenty-One Thousand Eight Hundred Fifteen and 85/100 Dollars
($1,021,815.85) shall be payable in full over a period of six (6)
months, in accordance with the terms of the Promissory Note (the
"Note"), which BUYER shall execute contemporaneously herewith, and
secured by a Security Agreement executed by BUYER contemporaneously
herewith. The first monthly payment shall begin upon BUYER's receipt of
written notice of System installation completion as provided in Section
5E below, and no later than May 1, 2001.
C. LATE PAYMENT. Any amounts not paid within ten (10) days of the due
date, shall bear interest as provided in the Note.
D. ADJUSTMENT TO SYSTEM PRICE. The System Price is to equip the number
of machines with System Hardware and Software as set forth in EXHIBIT "A." Any
additional Hardware or Software or services shall be an extra to the SYSTEM as
it is contemplated at the time of execution of this Agreement. The System Price
shall be adjusted in the event BUYER requires additional hardware installed at
the Location, any software customization is made, or any other costs or expenses
are encountered during the installation. Such adjustments shall be the
responsibility of BUYER and shall be paid in full upon receipt of invoice.
E. UNIT PRICE PROTECTION. CDS will maintain the unit prices quoted in
EXHIBIT "A" for any additional hardware added by BUYER to the Location, for one
(1) year after the date of execution of this Agreement.
4. DELIVERY
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Delivery of the System Hardware to the Location shall occur subsequent
to the execution of the Agreement. The date upon which CDS will commence
installation shall be no later than twelve (12) weeks from execution of this
Agreement.
5. SYSTEM INSTALLATION
A. At the Location, the "in-machine" hardware and all cabling,
shall be installed by a team of at least five (5) highly
qualified slot technicians and other representatives of BUYER
under the on-site supervision by two (2) qualified employee of
CDS. One (1) CDS employee will supervise the
B. installation for a total of seventy hundred ninety-two (792)
man hours. If additional supervision hours are required, or if
installation labor is performed by CDS employees, said
services shall be invoiced by CDS at its then existing rates
for such services and paid by BUYER in accordance with Section
3C above. It will be the responsibility of BUYER to have the
casino floor ready prior to the Hardware installation
(including, without limitation, carpet laid, machines in
place, correct power and cable to the machines), to pull all
SYSTEM and network cabling, concurrent with CDS beginning its
delivery activities and to install all PC network equipment
four (4) weeks prior to System Hardware delivery (network,
file server, PC workstations, etc.). CDS will provide the
necessary technical support to BUYER for BUYER's installation
of the in-machine hardware. In-machine hardware includes the
electronic circuit boards and all wiring necessary to monitor
the coin in, coin out, slot and drop door security, and, where
required, player tracking card readers and cable on each
gaming machine networked into the SYSTEM. CDS will also
supervise the installation of the operating hardware, which
includes all DataPorts(TM) and OASIS(TM) Network Controllers
in THe SYSTEM network.
B. BUYER shall timely install the Associated Equipment, prior to
functional testing of the SYSTEM by CDS.
C. BUYER shall be responsible for all costs incurred to upgrade gaming
device EPROMS which may be required to permit the SYSTEM to communicate with
BUYER's gaming devices. All EPROM upgrades required, shall be installed by BUYER
five (5) days prior to CDS performing its SYSTEM functionality testing. BUYER
shall also provide all gaming device interfaces/protocols to enable the SYSTEM
to communicate with BUYER's gaming devices.
D. CDS will provide a total of seventy (70) man days (eight hour days)
of on-site assistance at the Location. Said assistance will be conducted during
and after installation of the SYSTEM. BUYER shall have the obligation to provide
qualified staff for training purposes. Any additional assistance requested by
BUYER and provided by CDS customer service representatives, shall be billed at
the CDS' then existing rates for the assistance provided, plus meals, reasonable
travel, and lodging.
E. Upon completion of the installation of the SYSTEM (Hardware and
Software) at the Location, CDS shall conduct a test of the SYSTEM to confirm
functionality in accordance with the OASIS/Windows Acceptance Standards, as set
forth in EXHIBIT "B" attached hereto and incorporated herein by this reference.
Thereafter, CDS shall provide BUYER with written notice that the SYSTEM is fully
installed; BUYER's countersignature of such notice shall constitute acceptance
of the SYSTEM, or the System shall be deemed accepted five (5) days after the
date of the notice, whichever event first occurs ("Acceptance").
F. Any installation fees incurred for a factory installation of System
Hardware, shall be the sole responsibility of BUYER, and shall be priced in
accordance with EXHIBIT "A". BUYER shall pay such fees or charges directly to
CDS in full.
6. GRANT OF LICENSE
Subject to the terms and conditions provided herein, CDS hereby grants
LICENSEE a limited, non-exclusive site specific license, to use a standard
version of Casino Data Systems' slot accounting and player tracking software
known as OASIS/Windows (the "Software," by definition, shall include only those
modules listed on EXHIBIT "A" and paid for by LICENSEE) in its conduct of slot
machine gambling and related accounting functions subject to the provisions of
this License. The Software shall only be used at the Location by LICENSEE, only
to enable the System Hardware to operate, and for the data particular to the
Location or such other data as specifically agreed to by the parties. This grant
of License is conditional upon and subject to timely and full payment of the
System Price. LICENSEE further acknowledges and agrees that it has no
proprietary interest in the Software, that all proprietary interest in the
Software is owned and controlled by CDS, and that LICENSEE will not attempt to
or allow an attempt to transfer, modify, duplicate, sell, license, sublicense,
or otherwise dispose of, in whole or in part, the Software or any component part
thereof, to any other location, affiliate, or any third party, except as
specifically provided herein. This grant of license does not include
enhancements or modifications to the Software. CDS shall have no obligation to
upgrade, enhance or modify the Software. LICENSEE may request CDS to make
standardized upgrade enhancements and/or modifications to the Software, and all
such work if accepted by CDS, shall be performed at CDS' then existing rates for
similar work. If CDS does upgrade or modify the Software, such Software shall be
subject to the terms and conditions of or related to this Agreement.
7. LICENSE TERM
The license granted in Section 6 above, shall be for a term of thirty
(30) years, which shall commence upon the date of Acceptance of the SYSTEM. At
such time as LICENSEE shall voluntarily cease using the Software in its
operations at the Location for a period of one year or in the event LICENSEE has
not made timely and/or full payment of the System Price or shall have materially
breached this Agreement, the license granted herein shall automatically
terminate, and the Software shall be immediately downloaded and all
documentation and any copies thereof, thereto shall be promptly returned to CDS.
8. TRANSPORTATION, MEALS AND LODGING OF CDS PERSONNEL
During CDS' performance of its obligations under this Agreement and/or
post installation service, BUYER will provide or reimburse CDS for the costs of
reasonable transportation,(all local ground transportations will be from Greater
Pittsburgh International Airport) meals (excluding alchoholic bevreages) and
lodging at Mountaineer's on site hotel for CDS personnel who are working at
BUYER's Location.
9. ASSOCIATED EQUIPMENT
The BUYER shall be solely responsible for the purchasing of new and/or
adapting of currently owned computers and associated equipment which shall serve
as central processors and workstations of the SYSTEM operation (the "Associated
Equipment"). Such Associated Equipment shall be in the required quantities and
shall meet the minimum specifications as identified in EXHIBIT "C" attached
hereto and incorporated herein by this reference, and as are otherwise required
by CDS to operate the SYSTEM. Failure of Buyer to operate the SYSTEM with
Associated Equipment meeting the minimum specifications of EXHIBIT "C" shall
immediately void any and all warranties provided by CDS.
10. CONFIDENTIALITY
A. BUYER'S INFORMATION. In order for CDS to perform under this
Agreement, CDS may require or be given access to certain confidential
information of BUYER. BUYER shall clearly xxxx all information that it deems to
be confidential or proprietary as "Confidential". Such information may include,
but is not limited to, data relating to BUYER's casino operation, customer
information, financial data, computer programs, marketing information or any
other information of the business or affairs of BUYER, hereinafter referred to
as "BUYER's Information." CDS shall not make copies of or disclose BUYER's
Information without the prior written permission of BUYER. CDS shall keep in
strictest confidence all BUYER's Information furnished to it by BUYER or which
may be developed by CDS during CDS' performance hereunder. This clause shall not
be applicable to BUYER's information which is or becomes available to the public
other than through a breach of this Agreement, or which is already possessed by
CDS or is independently developed by CDS. This Section shall remain in effect
after termination of this Agreement.
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B. CDS' INFORMATION. CDS' Confidential and Proprietary information
includes but is not limited to any and all System design information, software,
technological data, financial information, documents, plans, diagrams,
specifications, prototypes, and output whether communicated verbally or in
writing. BUYER shall use its best efforts to prevent any use and disclosure of
the Confidential and Proprietary Information. BUYER shall not copy or duplicate
any Confidential Information. In addition, the BUYER shall require, as a
condition of any of its employees or third parties receiving the Confidential
and Proprietary Information directly from BUYER, such recipient's executing an
agreement in form and substance similar to EXHIBIT "D" hereto. BUYER shall not,
and it shall not allow another person to make or make an attempt to, examine,
copy, alter, "reverse engineer," tamper with or otherwise use the Hardware or
Software except as set forth herein. BUYER's confidentiality obligation shall
not extend to information which is or becomes available to the public other than
through a breach of this Agreement, which is already possessed by BUYER or which
is independently developed by BUYER with reference to Confidential Information.
BUYER acknowledges and agrees that the obligation of confidentiality and
protection of CDS' Confidential and Proprietary Information shall survive the
termination of this Agreement. In addition to other provisions herein, this
Agreement and the license granted herein may be immediately terminated by CDS if
BUYER violates or allows the violation of this Section 10B.
X. XXXX. Notwithstanding any other contrary provision herein, in
addition to any other remedies available to the non-breaching party in the event
of a breach of this provision, the injured party shall be entitled to an
injunction restraining the violation thereof or compelling the promised
performance without bond unless the court determines the bond is jurisdictional,
then in an amount not to exceed One Hundred Dollars ($100.00).
11. SECURITY AND RISK OF LOSS OR DAMAGE
BUYER hereby grants to CDS a security interest in and to the System and
each component thereof, to secure full and prompt payment of the System Price
and BUYER's obligation hereunder. BUYER shall execute UCC-1 Financing Statements
and other appropriate forms to enable CDS to record and execute upon, if
necessary, its security interest. The risk of loss and damage to all components
of the SYSTEM delivered hereunder, shall be with BUYER commencing at the time of
delivery to the Location.
12. WARRANTIES AND REPRESENTATIONS; DISCLAIMER
A. CDS warrants that it has the ability to enter into this Agreement,
to sell the Hardware, and to license the Software.
B. CDS warrants that, for a period of four hundred eight five (485)
days from the date of original SYSTEM installation completion, the System
Hardware and Software are free from any known defects. This warranty shall not
extend to Hardware or Software which has been modified or tampered with by
BUYER.
C. If, within the warranty period, any Hardware defect covered by this
warranty appears, the BUYER shall return the defective part to CDS and the part
will be replaced or repaired at the sole discretion and cost of CDS, within five
(5) working days from date of CDS' receipt, or if repair or replacement cannot
be effected within five (5) working days, CDS will provide a time table for the
repair or replacement.
D. If, within the warranty period, any Software defect covered by this
Warranty is discovered, LICENSEE shall immediately notify CDS of the defect. Any
Software defect reported in writing by LICENSEE will be responded to in writing
or repaired within three (3) business days of receipt of written notice by CDS.
If the repair cannot be effected within such period, CDS will provide a
timetable for the repair and will promptly undertake efforts to begin the
repair. Provided the defect does not materially impair LICENSEE's use of the
SYSTEM, CDS retains the right to provide the repair of the defect in a scheduled
upgrade to the Software, in which case the upgrade will be provided to LICENSEE
at no charge.
E. Items repaired or replaced pursuant to this clause shall be subject
to all provisions of this clause to the same extent as items initially
delivered, except that time elapsed after acceptance of the repaired or replaced
item, and prior to written notification by the BUYER of the defect, shall be
deducted from the warranty period for the purpose of computing time remaining
under the warranty period for repaired or replacement items.
F. During the warranty period CDS will provide twenty-four (24) hour
per day, seven (7) days per week emergency technical and customer service
support to the Location via telephone support. If on-site service is required,
CDS will (subject to Section 8 above) provide such support within seventy-two
(72) hours of the determination by CDS that an on-site service call is required
or with the next available commercial flight.
G. During the Warranty Period. ,CDS will provide non-emergency support
via telephone access from its Las Vegas office during the hours of 5:00 a.m. to
6:00 p.m. Pacific Standard Time, Monday through Friday.
H. CDS provides no warranty, express or implied, for the Associated
Equipment. The warranties provided in this subsections (B), (C), (D), (E), (F)
and (G) above shall be void and of no force or effect if BUYER fails to operate
the SYSTEM with Associated Equipment that does not meet the minimum
specifications set for the in EXHIBIT "C."
I. EXCEPT AS SET FORTH ABOVE, THERE ARE NO OTHER WARRANTIES EITHER
EXPRESS OR IMPLIED, AND ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, ARE
HEREBY DISCLAIMED, INCLUDING BUT NOT LIMITED TO THE WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE AND THE WARRANTY OF MERCHANTABILITY.
J. The aforesaid warranties and disclaimers shall survive Acceptance
and payment.
13. EXTENDED MAINTENANCE PROGRAMS
CDS provides extended System Hardware and Software maintenance programs
pursuant to the terms of a separate agreement, the cost of which for the first
year is offered in accordance with the price provided in EXHIBIT "A."
14. EXCUSABLE DELAYS
Neither party shall be liable for damages, including liquidated
damages, if any, for delays in delivery or failure to perform due to causes
beyond the control and without the fault or negligence of the party. Such causes
include but are not limited to, acts of God, acts of the public enemy, acts of
the United States Government, acts of State Governments, fires, floods,
epidemics, quarantine restrictions, strikes, or embargoes.
15. OTHER TAXES AND FEES
BUYER shall be solely responsible for complying with all applicable
governmental ordinances and laws pertaining to operation of the SYSTEM, filings,
timely payment of all taxes, state licensing fees, application fees, etc.
16. TERMINATION OF AGREEMENT
A. TERMINATION FOR DEFAULT. If either party shall at any time default
in the payment of any monies due in accordance with this Agreement or in
fulfilling any of the other obligations or conditions of this Agreement, the
other party may give written notice of such default, specifying the reasons
therefor. If such default is not cured within fifteen (15) days after notice,
the non-defaulting party shall then have the right in its own discretion to
terminate this Agreement by giving written notice of termination. This Agreement
shall terminate on the fifth (5th) day after the notice is received. In the
event of default, CDS shall have the right to remove any portion of the SYSTEM
not paid for, in addition to any other rights it has hereunder or at law.
B. CONTINUING VALIDITY OF LICENSE. The termination of this Agreement
shall rescind the license granted and revoke all rights granted to or accrued by
LICENSEE to use the Software under this Agreement; however, all terms pertaining
to confidentiality and protection of Confidential and Proprietary Information
shall remain in full force and effect in accordance with the terms of this
Agreement. Within ten (10) days of termination of this Agreement, LICENSEE shall
download the Software and return to CDS all of the Software, all Confidential
and Proprietary Information, the Documentation and all other information and
training materials, and all copies thereof, in LICENSEE's possession.
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17. INDEMNITY; LIMITATION OF DAMAGES
A. INDEMNITY BY CDS.
SYSTEM. Provided BUYER is not in default of this Agreement, in
the event that a final injunction is obtained against BUYER's use of System
Hardware or System Software or any portion thereof by reason of infringement of
a valid U.S. patent or copyright or misappropriation of a trade secret, CDS may
at its option and expense, either: (a) procure for BUYER the right to use the
System without patent or copyright infringement or trade secret violation, or
(b) replace the System with substantially equivalent hardware or software that
is non-infringing or non-violative, in which case such procurement for
replacement shall be the sole liability of CDS under this Agreement for such
infringement or replacement or misappropriation. If CDS is unable to accomplish
(a) or (b) as aforementioned, CDS shall have the right to direct BUYER to cease
use of System which direction BUYER agrees to follow, and in such case terminate
this Agreement.
B. INDEMNITY BY BUYER. BUYER shall indemnify, defend and hold CDS, its
affiliates, directors, officers and employees harmless from and against any
claim, liability, damage, cost, expense, attorney's fees, award, fine, or
judgment arising from or out of BUYER's operation, conduct, and use of the
SYSTEM.
C. NOTICE; SELECTION OF COUNSEL. Each party shall give the other timely
notice of any claims, demands, actions, and/or proceedings. The selection of
counsel, and the control, and conduct of the defense of such action and its
settlement shall be with the indemnifying party. The indemnified party shall
have the right to participate in its defense during any actual suit or action,
through counsel of its choice and at its own expense. The indemnified party
shall cooperate in the defense of the claim at the request of the indemnitor.
D. LIMITATION OF DAMAGES. No party shall be entitled to receive from or
be obligated to pay to the other, any part of any award, claim fine or judgment
which is deemed, declared or is characterized in its nature to be exemplary,
punitive special or consequential damages, provided, however, that such damages
shall be available in the event of institutional wrong doing or acts
constituting crimes. Except for the liability expressly covered by Section 17A
above, in no event shall CDS' liability for any claim, action, settlement,
lawsuit, judgment, demand or damage arising out of or related to this Agreement
exceed the System Price.
18. ASSIGNMENT/TRANSFER
This Agreement or any interest hereunder shall not be assigned or
transferred by BUYER without the prior written consent of CDS, which consent may
be withheld for any reason. Neither the SYSTEM nor any individual component
thereof may be transferred to or used at any other location other than the
Location.
19. INTEGRATED SYSTEM
The Software and Hardware identified under this Agreement are part of
an integrated SYSTEM whose composite value for purposes of valuation in
Bankruptcy Court under Section 50 of the United States Code must be taken as a
whole, and must be considered in any plan to be proposed, and in any adequate
protection context, as a fully secured claim, whose market value as of the date
of this Agreement is agreed to be equal to the System Price. Said market value
is subject to annual adjustment by CDS to the extent of payments made by BUYER
or additional charges incurred.
The parties further agree that in the event the BUYER seeks bankruptcy
protection, or has an involuntary bankruptcy petition filed against it, this
Agreement will continue in full force and effect, and payments under this
Agreement will be in the ordinary course of business and will be made as
scheduled, without modification, until plan confirmation. Failure to make all
payments post-petition shall constitute "cause" as that term is defined under
Section 362(d)(1) of the Bankruptcy Code, and shall require the bankruptcy
court, following a hearing on an order shortening time, to lift the automatic
stay to permit recovery by CDS of the System Hardware and Software. BUYER agrees
that all post-petition payments due hereunder are administrative obligations and
that they shall be so treated in any plan to be submitted by a
debtor-in-possession.
20. LAWS AND ORDINANCES; GAMING APPROVAL
The BUYER and CDS shall comply with all applicable laws, ordinances,
rules and regulations including Federal, State and Municipal authorities and
departments, if any, relating to or affecting the work hereunder or any part
thereof, and shall cooperate in the securing and obtaining any and all permits,
licenses and consents as may be necessary in connection therewith. Additionally,
BUYER shall be solely responsible for application to the necessary gaming or
gambling control authorities with jurisdiction over its premises and gaming
operation for all required approvals, licenses and the like concerning the
SYSTEM, and the operation thereof, except any licensing or approval directly
related to CDS' status as a manufacturer or distributor of the SYSTEM (or the
approval of component parts of the SYSTEM), shall be the direct and sole
responsibility and financial obligation of CDS. Each party agrees to fully
cooperate with other in compliance with the required regulatory processes as
they relate to the SYSTEM.
21. ON-SITE INJURY
CDS, its representatives, employees and agents, will be required to
enter premises owned, leased, occupied by or under the control of the BUYER
during the performance of this Agreement, and the BUYER shall indemnify and hold
harmless CDS, its officers, employees, representatives and agents from any loss,
cost, damage, expense or liability by reason of property damage or personal
injury, including death, of whatsoever nature or kind arising out of or as a
result of such performance, except to the extent such damage to property or
personal injury is caused by the negligence or misconduct of CDS or its
officers, employees, representatives or agents.
22. ALTERNATIVE DISPUTE RESOLUTION
In the event of dispute between the parties concerning a term of this
Agreement or the performance of a party hereto, the parties agree to use
reasonable efforts to reach a compromise concerning the dispute, which
compromise would maintain and preserve the scope and intent of this Agreement.
23. MISCELLANEOUS PROVISIONS
A. MUTUAL COOPERATION. All parties hereto agree to cooperate with each
other and any of the parties in particular regarding any documents that need to
be signed or actions that need to be taken to effectuate the intent of this
Agreement. Any party not cooperating by taking such action or signing any
documents as requested by notice sent to that particular party shall be deemed
to have breached this Agreement.
B. SEVERABILITY. If any term or provision of this Agreement is declared
invalid or unenforceable by a court of competent jurisdiction, the remaining
provisions shall remain in full force and effect.
C. NOTICES. Wherever provision is made in this Agreement for the
giving, service or delivery of any notice, statement or other instrument, the
same shall be deemed to have been duly given, served or delivered: (i) on the
date personally delivered, (ii) on the second business day following the date on
which mailed by United States registered or certified mail (return receipt
requested), postage prepaid, or (iii) on the first business day following the
date on which mailed by United States Express Mail, postage pre-paid, or
delivered to a commercially responsible overnight courier which provides service
between the point of origin and the point of destination, addressed as follows:
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(i) To BUYER:
Mountaineer Park, Inc.
dba Mountaineer Race Track & Gaming Resort
State Xx. 0 Xxxxx
Xxxxxxx, Xxxx Xxxxxxxx 00000
Attn: Xxx XxXxxxxxx, Video Lottery Mrg.
Fax No.: (000) 000-0000
(ii) Xxxxxx X. Xxxxx, Esq.
Xxxxx and Xxxxxxx, LLP
0000 X Xxxxxx X.X. Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Fax No.: (000)000-0000
(i) To CDS:
Casino Data Systems
0000 Xxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attn: Legal Department
Fax No.: (000) 000-0000
(iii) To such other addresses as may be designated by a party to this Agreement
by notice given in accordance with the terms of this Section.
D. GOVERNING LAW. In the event of any litigation in a court of law,
this Agreement is executed and intended to be performed in the State of West
Virginia and the laws of West Virginia shall govern its interpretation and
effect.
E. ENTIRE AGREEMENT. Except to the extent, if any, that a written
maintenance agreement is executed contemporaneously herewith, this Agreement
contains the entire agreement of the parties and each party acknowledges there
were no other oral agreements, representations, warranties or statements of fact
made prior to or at the time of the signing of this Agreement.
F. MODIFICATIONS. No alteration, modification or amendment of this
Agreement shall be effective or enforceable unless it shall be in writing and
signed by the parties.
G. WAIVER. Failure of either party to insist on strict performance
shall not constitute a waiver of any of the provisions of this Agreement or a
waiver of any default of the other party.
H. CALENDAR DAYS. All periods of days referred to in this Agreement
shall be measured in calendar days.
I. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the heirs, administrators, executors and assigns of each of the
parties hereto.
J. CAPTIONS. Section titles or captions herein are inserted as a matter
of convenience and for reference only and in no way define, limit, extend or
describe the scope of this Agreement or any provisions contained herein.
K. TIME OF THE ESSENCE. Time is of the essence in this Agreement and in
all provisions contained herein.
L. REFERENCE TO GENDER. All reference to the parties are made in the
male gender for convenience of reference only.
M. ATTORNEY'S FEES. In the event of any disputes between the parties
arising out of this Agreement, the prevailing party shall be allowed reasonable
attorney's fees and costs incurred in any negotiation, litigation or any appeal.
N. ACKNOWLEDGMENT OF INDEPENDENT ADVICE. Each party whose signature
appears below acknowledges that he has read all of the provisions of the
foregoing Agreement, understands them, has sought independent advice regarding
the legal effect of the provisions herein, and agrees to be bound by said
provisions.
O. VENUE AND PERSONAL JURISDICTION. In case action is brought on this
Agreement, it is agreed that venue of such action may lie in Xxxxxxx County,
State of West Virginia and each party agrees to submit to the personal
jurisdiction of such court.
P. WARRANTY OF AUTHORITY. The undersigned officer warrants that he is
authorized and has authority to execute this Agreement on behalf of each
respective signatory.
Q. JOINT AND SEVERAL LIABILITY. All parties signing this Agreement as a
BUYER shall be jointly and severally liable for all obligations of BUYER.
R. CONFIDENTIALITY OF AGREEMENT AND ALL ATTACHMENTS. Both parties to
this Agreement acknowledge that this Agreement, including all terms and
provisions herein, and all exhibits and attachments hereto, are confidential and
will not be disclosed to any third party unless ordered by a court of law.
S. NON SOLICITATION OF EMPLOYEES. Both parties agrees that they will
not directly or indirectly, during the course of this Agreement, solicit or aid
third parties to solicit any employee or consultant of the other to leave their
employment with that party in order to accept employment of any kind with any
other person, firm, partnership or corporation. A breach of this provision shall
be considered a material breach of this Agreement.
24. SURVIVAL OF CERTAIN OBLIGATIONS
The obligations set forth in Sections 10 (Confidentiality), 12
(Warranties and Representation; Disclaimer), 17 (Indemnity; Limitation of
Damages), 19 (Integrated System), 22 (Alternative Dispute Resolution) and 23R
(Confidentiality of Agreement and All Attachments) shall survive the termination
of this Agreement.
WHEREFORE, this Agreement is executed and entered into as of the date
first written above.
CDS: BUYER:
Casino Data Systems, Mountaineer Park, Inc. dba
a Nevada corporation Mountaineer Race Track & Gaming Resort,
a West Virginia corporation
By: By:
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Print Name: Print Name:
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Print Title: Print Title:
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5
EXHIBITS
A SYSTEM HARDWARE AND PRICING
B SYSTEM ACCEPTANCE STANDARDS
C MINIMUM ASSOCIATED EQUIPMENT REQUIRED
D CONFIDENTIALITY AGREEMENT
6
EXHIBIT A
SYSTEM HARDWARE AND PRICING
7
EXHIBIT B
SYSTEM ACCEPTANCE STANDARDS
8
EXHIBIT C
MINIMUM ASSOCIATED EQUIPMENT REQUIRED
9
EXHIBIT D
CONFIDENTIALITY AGREEMENT
The undersigned recognizes that she/he will be given access
to Confidential and Proprietary Information by ___________, Inc., a LICENSEE
of certain software from Casino Data Systems ("CDS") Pursuant to the
OASIS(TM) Version 11.0 SYSTEM PURCHASE AGREEMENT AND LICENSE dated
_________________, ______. The undersigned agrees to accept the Confidential
and Proprietary Information and not to further use or disclose it except as
may be expressly permitted under the Agreement, the undersigned acknowledging
that she/he has read the pertinent restrictions on use and disclosure and any
legal exceptions thereto as set out in the Agreement. The undersigned
acknowledges that the CDS shall be both a third party beneficiary of this
undertaking given by the undersigned to the LICENSEE and shall have a direct
right to equitably and legally enforce the undersigned's compliance with the
restrictions on use and disclosure of the Confidential Information, whether
by asserting a direct action for restraint or damages or both against the
undersigned for any asserted unauthorized use or disclosure, or by joining
the LICENSEE as a party in interest in any action that the LICENSEE may
institute against the undersigned to redress any such unauthorized use or
disclosure.
------------------------ ---------------------------------
Date Name:
---------------------------------
Title:
10
