THIS AGREEMENT made on the 30th November 2005 BETWEEN
Exhibit
10-12
THIS
AGREEMENT made
on
the 30th
November
2005
BETWEEN
| (1) |
FRIENDS
OF REHAB SOCIETY
acting through its Executive Committee and having its office at
Xxxxxx
Xxxx, Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxx 0 (“Friends
of Rehab”);
|
| (2) |
REHAB
NET GAMES LIMITED
(company registration number: 269951) having its registered office
at
Xxxxx Xxxxx, Xxxxxxxxx Xxxxx, Xxxxxx 0 (“Rehab”);
and
|
| (3) |
NEW
MEDIA LOTTERY SERVICES (INTERNATIONAL) LIMITED
(formerly Lottery Network Services Limited) (company registration
number:
330027) having its registered office at Newmarket Partnership, X0,
Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxx 00 (“NMLS”).
|
WHEREAS
| (A) |
Friends
of Rehab, Rehab and NMLS have on or about the date of this Agreement
entered into an Internet Operating Agreement (the “Internet
Operating Agreement”)
pursuant to which NMLS has agreed, inter alia, to provide Friends
of Rehab
and Rehab with the Rehab Content Site and to make the NMLS Lottery
Games
available on the Rehab Content
Site.
|
| (B) |
Friends
of Rehab and Rehab are desirous of extending their lottery fundraising
activities to include bingo games to be made available to players
on the
Internet. Friends of Rehab and Rehab have agreed with NMLS that it
shall
provide Friends of Rehab and Rehab with the Rehab Bingo Website and
shall
make NMLS Bingo Games available on the Rehab Bingo Website. NMLS
shall
also provide Friends of Rehab and Rehab with the creative and technical
support required to operate and market the Rehab Bingo Website on
the
terms and subject to the conditions set out in this Agreement.
|
| (C) |
Friends
of Rehab and Rehab have agreed, inter alia by means of the Principal
Agency Agreement, that Rehab will administer and discharge all fees
in
respect of the Rehab Bingo Website in accordance with this Agreement
on
behalf of Friends of Rehab.
|
| (D) |
The
parties have agreed to enter into this Agreement to define the terms
upon
which NMLS shall provide Friends of Rehab and Rehab with the Rehab
Bingo
Website and the NMLS Bingo Games.
|
NOW
IT IS HEREBY AGREED
as
follows:
| 1. |
Interpretation
|
| 1.1 |
In
this
Agreement, unless the context otherwise
requires:
|
|
“Agreed
Bingo Financial Information”
|
has
the meaning given to it in Clause
7.4;
|
|
“Bingo
Intellectual Property”
|
means
the use of the names “xxx.xxxxxxxxxx.xxx”,
“xxxxxxxxxx.xxx”, “Rehab Bingo” and such other distinctive marks, logos,
trade marks and/or trade names arising out of or in connection
with the
Rehab Bingo Website;
|
|
|
“Bingo
Receipt Date”
|
has
the meaning given to it in Clause 7.4;
|
|
|
“Commencement
Date”
|
means
the date of this Agreement;
|
|
|
“Historic
Bingo Marketing Costs”
|
has
the meaning given to it in Clause 7.2.2;
|
|
|
“NMLS
Bingo Games”
|
means
the bingo games owned or licensed to and operated by NMLS on the
Rehab
Bingo Website as approved from time to time by Friends of Rehab
and
Rehab;
|
|
|
“Other
Internet Bingo Arrangements”
|
has
the meaning given to it in Clause 3.2;
|
|
|
“Rehab
Bingo Brandnames”
|
means
xxx.xxxxxxxxxx.xxx, “Rehab Bingo Games”, “Rehab Bingo”, “Rehab
Multi-player Bingo” and such other Friends of Rehab and/or Rehab
brandnames as may be agreed in writing between the
Parties;
|
|
|
“Rehab
Bingo Cash Management
Costs”
|
means
Alladdin’s Fees (or, where the Alladdin Contract is terminated or expires,
such fees as may be payable to any service provider in respect
of the
services previously supplied by Alladdin under the Alladdin Contract)
and
bank credit card merchant fees and clearance fees, foreign currency
exchange charges, bad debts, chargebacks and/or any other bank
charges
reasonably incurred by NMLS in the performance of its obligations
under
this Agreement for the applicable calendar
month;
|
|
“Rehab
Bingo Disclaimer”
|
means
the disclaimers to be contained in the Rehab Bingo Website Terms
and
Conditions and to appear on the Rehab Bingo Website when an Internet
user
follows a link to or otherwise enters the NMLS Website from the
Rehab
Bingo Website, the content of which will be agreed by the Parties
and will
be included in the Rehab Bingo Procedures
Manuals;
|
|
“Rehab
Bingo Gross Proceeds”
|
means,
with respect to any calendar month, the proceeds of all sales of
NMLS
Bingo Games on the Rehab Bingo Website receivable and which are
received
by Friends of Rehab for the applicable calendar month;
|
|
|
|
||
|
“Rehab
Bingo Gross Net
Proceeds”
|
means,
with respect to any calendar month, the Rehab Bingo Gross Proceeds
for
that month after the deduction of the Rehab Bingo Prize Payout
for that
month and the Rehab Bingo Cash Management Costs for that month;
|
|
|
|
||
|
“Rehab
Bingo NMLS Retail Commission”
|
means, the sum calculated in accordance with Clause 7.2 of this Agreement and which is payable by Rehab to NMLS for distribution and marketing services provided by NMLS hereunder; | |
|
“Rehab
Bingo Marketing
Costs”
|
means
all reasonable costs relating to the marketing, promotion and
advertising of the Rehab Bingo Website including, without limitation,
the
cost of marketing, promotion and advertising using the media of
television, radio, print publications and/or the Internet and all
reasonable costs incurred in respect of promotional logo design,
script
recording, photography, public relations, market research, prize
sponsorship and personality endorsement for the Rehab Bingo Website;
|
|
|
“Rehab
Bingo Net Proceeds”
|
means,
with respect to any calendar month, the Rehab Bingo Gross Net Proceeds
for
that month after deduction therefrom of the Historic Bingo Marketing
Costs
and the Rehab Bingo Marketing Costs in accordance with Clause
7.2.2;
|
|
“Rehab
Bingo Prize Payout”
|
means
the sums paid out to players by Friends of Rehab or by NMLS and/or
Rehab
on behalf of Friends of Rehab as part of or pursuant to the NMLS
Bingo
Games operated on the Rehab Bingo Website for the applicable calendar
month;
|
|
|
|
||
|
“Rehab
Bingo Procedures
Manuals”
|
means
any and all procedures agreed by the Parties including, inter alia,
the
rules and regulations governing the operation of NMLS Bingo Games
on the
Rehab Bingo Website (including, without limitation, the theme,
graphics
and prize structures with respect thereto) as same are amended
by
agreement between the Parties from time to time;
|
|
|
|
||
|
“Rehab
Bingo Website Privacy Policy”
|
means
the privacy policy prepared by or on behalf of Rehab and Friends
of Rehab
to be displayed on the Rehab Bingo Website providing Internet users
with
information concerning, inter alia, how their personal data is
used by
NMLS, Friends of Rehab and Rehab;
|
|
|
|
||
|
“Rehab
Bingo Website Terms
and Conditions”
|
means
the terms and conditions prescribed by Rehab and Friends of Rehab
to be
displayed on the Rehab Bingo Website relating to, inter alia, the
playing
of NMLS Bingo Games on the Rehab Bingo Website;
|
|
|
“Rehab
Bingo Website”
|
means
the website accessed through the domain name xxx.xxxxxxxxxx.xxx
and
maintained by NMLS pursuant to the terms and subject the conditions
of
this Agreement;
and
|
|
|
“Total
Bingo Marketing Costs”
|
has
the meaning given to it in Clause
7.2.2.
|
| 1.2 |
Words
and expressions used in this Agreement and not otherwise defined
shall
have the same meaning as in the Internet Operating Agreement unless
the
context otherwise requires.
|
| 2. |
Licence
of Rehab Bingo Brandnames and
Brandnames
|
| 2.1 |
Friends
of Rehab and Rehab hereby grant to NMLS a licence to
use:
|
| (a) |
the
Rehab Bingo Brandnames and the Brandnames on the Rehab Bingo
Website;
|
| (b) |
the
Rehab Bingo Brandnames on the Rehab Content Site;
and
|
| (c) |
for
the purposes of promoting the Rehab Bingo Website, the Rehab Bingo
Brandnames on the NMLS Website,
|
and
NMLS
agrees to accept the licence on the terms and subject to the conditions of
this
Agreement.
| 2.2 |
The
Parties acknowledge and agree that, subject to and in accordance
with the
terms of this Agreement, during the term of this Agreement, the Rehab
Bingo Website shall be used exclusively to operate the NMLS Bingo
Games.
NMLS hereby acknowledges and undertakes to Friends of Rehab and Rehab
not
to use the Rehab Bingo Brandnames or the Brandnames for any purposes
other
than those permitted purposes set out in this Agreement or in the
Internet
Operating Agreement or on any website other than the Rehab Bingo
Website,
the Rehab Content Site and the NMLS Website in accordance with this
Agreement or the Internet Operating Agreement without the prior written
consent of (as the case may be) Friends of Rehab and/or
Rehab.
|
| 3. |
Relationship
of the parties
|
| 3.1 |
For
the duration of this Agreement, NMLS agrees with Rehab and Friends
of
Rehab that it will not either directly or indirectly be concerned
or
interested in or enter into any internet operating agreement or
arrangement with any other person, charity or corporate body located
or
operating in the Territory to promote market, advertise, produce,
procure,
issue, distribute or sell bingo games on the Internet.
For the avoidance of doubt, this Clause 3.1 does not preclude persons
resident in the Territory purchasing entries in NMLS Bingo Games
on the
Rehab Bingo Website.
|
| 3.2 |
From
the Commencement Date until 31 December 2007, Friends of Rehab and
Rehab
agree with NMLS that they will not either directly or indirectly
be
concerned or interested in or enter into any internet operating agreement
or arrangement with any other person, charity or corporate body located
or
operating in the Territory to promote market, advertise, produce,
procure,
issue, distribute or sell bingo games on the Internet (the “Other
Internet Bingo Arrangements”).
Provided that the Rehab Bingo Net Proceeds for each of the years
two to
four of this Agreement (being the periods 30 November 2006 to 29
November
2007, 30 November 2007 to 29 November 2008 and 30 November 2008 to
29
November 2009 respectively) exceeds €200,000, Friends of Rehab and Rehab
further agree with NMLS that they shall not either directly or indirectly
enter into any Other Internet Bingo Arrangements for each of the
calendar
years 2008, 2009 and 2010.
|
| 4. |
Duties
of NMLS
|
| 4.1 |
NMLS
shall provide Friends of Rehab and Rehab with the Rehab Bingo Website
which will incorporate the NMLS Bingo Games and the Rehab Bingo
Brandnames.
|
| 4.2 |
Using
due care and diligence in the preparation of the Rehab Bingo Procedures
Manuals and in the performance of its duties hereunder, NMLS shall
at all
times during the continuance of this Agreement provide Friends of
Rehab
and Rehab with a range of services including but not limited
to:
|
| (i) |
providing
the NMLS Bingo Games on the Rehab Bingo Website in a manner which,
subject
to Clause 4.5, will permit all Internet users access to the Rehab
Bingo
Website on the Internet and enable any such Internet users to
play the
NMLS Bingo Games as selected by
Rehab;
|
|
(ii)
|
providing
NMLS Bingo Games on the Rehab Bingo Website of a standard and content
acceptable to Rehab and in compliance with the Rehab Bingo Procedures
Manuals;
|
| (iii) |
securely
facilitating the transfer of money in respect of entry into the NMLS
Bingo
Games on the Rehab Bingo Website in accordance with instructions
from time
to time as may be given by Friends of Rehab and/or
Rehab;
|
|
(iv)
|
securely
facilitating the payment of prizes in respect of the NMLS Bingo Games
to
players on the Rehab Bingo Website in accordance with instructions
from
time to time given by Rehab;
|
|
(v)
|
providing
and maintaining all systems, software and technical support necessary
to
ensure the availability of the NMLS Bingo Games on the Rehab Bingo
Website
on a continuous basis during the term of this
Agreement;
|
|
(vi)
|
distributing
NMLS Bingo Games only through the Internet or such other media and/or
distribution channels in the Territory as agreed in writing between
the
Parties;
|
|
(vii)
|
employing
or procuring the services of and remunerating at its own cost such
other
persons as may be required by NMLS to assist it in the performance
of its
duties under this Agreement;
|
| (viii) |
complying
with the Rehab Bingo Procedures Manuals, the Statutes and all other
applicable laws and regulations relating to the operation of the
NMLS
Bingo Games on the Rehab Bingo Website and the services provided
hereunder;
|
| (ix) |
using
all reasonable endeavours to ensure that the operation of the NMLS
Bingo
Games and financial transactions related thereto proceed without
risk of
breaches of security, theft or misuse of data, data loss, incorrect
recording of events or data, incorrect processing, breaches in copyright,
trade xxxx or service xxxx, virus propagation and player or third
party
systems damage;
|
| (x) |
designing,
implementing and, subject to Clause 7.2.2, discharging all fees in
respect
of all advertising, promotional marketing and sales programs for
the NMLS
Bingo Games and the Rehab Bingo Website in the manner and to the
extent
agreed in writing between the Parties hereto;
and
|
| (xi) |
obtaining
at its own cost all licences relating to game software, cash management
software (and intellectual property relating to such software)
authorisations and third party intellectual property consents necessary
to
lawfully operate the NMLS Bingo Games on the Rehab Bingo Website
other
than such licences, authorisations and third party consents relating
to
Friends of Rehab and/or Rehab in the
Territory.
|
| 4.3 |
NMLS
shall maintain proper books of account and records relating to the
sale
of NMLS
Bingo Games on the Rehab Bingo Website and other transactions contemplated
by this Agreement. Fully
completed financial statements in the format requested by Rehab and
audited by a professionally qualified and independent third party
to be
agreed and appointed by the parties prior to the Commencement Date
will be
given to Friends of Rehab and Rehab in the timescale specified by
Rehab in
Clause 7.4.
|
| 4.3.1 |
The
parties acknowledge and agree that, to the extent that it is feasible
and
for so long as the obligations in respect of the maintenance and
provision
thereof continue under both this Agreement and the Internet Operating
Agreement, and in order to avoid unnecessary duplication and
administrative costs, the books of account, records and financial
statements required to be maintained and given to Rehab under this
Clause
4.3 and under Clauses 7.4, 7.5 and 7.6 of this Agreement shall be
consolidated with the books of account, records and financial statements
required to be maintained and given to Rehab under Clauses 3.3, 5.4,
5.5
and 5.6 of the Internet Operating Agreement such that, in accordance
with
said provisions, NMLS shall maintain one consolidated set of books
of
accounts and records and will provide to Rehab a fully completed
consolidated set of financial statements in respect of the Rehab
Content
Site and the Rehab Bingo Website and the transactions contemplated
by this
Agreement and by the Internet Operating
Agreement.
|
| 4.4 |
Without
prejudice to any other duties or obligations of NMLS under this Agreement,
NMLS undertakes to Friends of Rehab and Rehab not to do any of the
following without the prior written consent of Friends of Rehab and
Rehab:
|
|
(i)
|
amend
the form or content of the Rehab Bingo Website;
|
|
(ii)
|
amend
the form, content, rules or prizes of any NMLS Bingo Game;
and/or
|
|
(iii)
|
introduce
or withdraw any NMLS Bingo Game on the Rehab Bingo
Website.
|
| 4.5 |
NMLS
acknowledges and agrees with Friends of Rehab and Rehab that the
Rehab
Bingo Website shall contain the rules and regulations pertaining
to
Friends of Rehab and the operation of the NMLS Bingo Games, the Rehab
Bingo Website Terms and Conditions, the Rehab Bingo Website Privacy
Policy
and the Rehab Bingo Website Disclaimer. NMLS further acknowledges
and
agrees that and that it shall procure that no Internet user shall
be
capable of playing NMLS Bingo Games on the Rehab Bingo Website until
he or
she has been first registered as a member of Friends of Rehab and
agreed
to be bound by the rules and regulations of Friends of Rehab, the
Rehab
Bingo Website Terms and Conditions and the Rehab Bingo Website Privacy
Policy.
|
| 4.6 |
The
parties acknowledge and agree that neither Friends of Rehab nor Rehab
shall be liable to NMLS for any costs or expenses incurred by NMLS
in the
exercise of its duties pursuant to Clause 4.1 or arising out of or
in
connection with providing computer hardware or software for the purposes
of this Agreement or NMLS’s development costs in respect of the Rehab
Bingo Website or the NMLS Bingo Games.
Subject to Clause 7.2.2, the parties further acknowledge and agree
that
NMLS will be responsible for all costs in connection with the duties
set
out in this Clause 4 including, but not limited to, the recurring
human
resource costs of discharging the said duties and all recurring
communications and administrative
costs.
|
| 4.7 |
The
parties acknowledge and agree that the licence granted by Friends
of Rehab
and Rehab to NMLS pursuant to Clause 2.1 of this Agreement shall
be
exclusive only for the period and to the extent described in Clause
3.2 of
this Agreement. The parties expressly agree that nothing in this
Agreement
shall preclude Friends of Rehab and/or Rehab from, inter alia, entering
into any Wireless/Mobile Phone operating or marketing arrangements
and/or
agreements or any arrangements and/or agreements of any nature relating
to
bingo games (other than bingo games covered by Clause 3.2 for the
period
specified therein) with any third party and using all or any of the
Rehab
Bingo Brandnames in relation to any such arrangements and/or
agreements.
|
| 4.8 |
Without
prejudice to Clause 4.7, the parties acknowledge and agree that at
any
time during the course of this Agreement, the parties may enter into
good
faith negotiations to agree the terms and conditions upon which Friends
of
Rehab and Rehab may licence, on a non-exclusive basis, all or any
of the
Rehab Bingo Brandnames to NMLS for use on Mobile Phones.
|
| 4.9 |
Nothing
in this Agreement shall preclude Friends of Rehab and/or Rehab from
promoting, marketing, selling and advertising any Rehab Lottery Games,
lottery tickets and/or bingo games (other
than bingo games covered by Clause 3.2 for the period specified
therein).
|
| 4.10 |
In
the event that any contract or arrangement which NMLS has entered
into
with any third party relating to the performance obligations and/or
liabilities of NMLS under this Agreement (including, without limitation,
the Alladdin Contract) is terminated or expires, NMLS shall procure
a
competent and suitably qualified replacement for said third party
within
10 Business Days of the occurrence of the aforesaid termination or
expiry.
|
| 5. |
Duties
of Rehab
|
| 5.1 |
Rehab
shall use its reasonable endeavours to assist NMLS with the marketing
and
administration of the NMLS Bingo Games on the Rehab Bingo Website.
The
parties acknowledge and agree that NMLS shall discharge all administration
costs and, subject to Clause 7.2.2, all Rehab Bingo Marketing Costs
in
respect of the NMLS Bingo Games on the Rehab Bingo Website.
|
| 6. |
Indemnification
|
| 6.1 |
NMLS
hereby agrees on demand to indemnify Friends of Rehab and Rehab and
hold
Friends of Rehab and Rehab harmless against any costs, claims, demands,
causes of action and judgements whatsoever and howsoever arising
out of
the failure of NMLS to comply with any of its obligations under this
Agreement including without limitation Clauses 4.2, 4.4 and 4.5.
Without
prejudice to the foregoing NMLS agrees on demand to indemnify Friends
of
Rehab and Rehab and hold Friends of Rehab and Rehab harmless against
any
costs, claims, demands, causes of action and judgments whatever and
howsoever arising from, or in connection with any contract or arrangement
entered into by NMLS with Alladdin or any third party (including,
without
limitation, any termination thereof) relating to the performance
obligations and/or liabilities of NMLS under this
Agreement.
|
| 6.2 |
For
the avoidance of doubt Friends of Rehab and/or Rehab shall not be
deemed
to be in breach of this Agreement or otherwise liable to NMLS by
reason of
delay in performance or non-performance, of any of their respective
obligations hereunder to the extent that such delay or non-performance
is
due to any delay in performance or non-performance of any provision
of any
contract or arrangement entered into by NMLS with any third party
relating
to performance obligations of the parties under this
Agreement.
|
| 6.3 |
Prior
to entering into this Agreement the parties obtained legal advice
as to
the legality of operating bingo games on the Internet. No party makes
any
representation to the others as to whether the advice received is
correct
and no party shall have any liability whatsoever to the others in
the
event that arising from an interpretation of the Statutes or any
law in
any jurisdiction outside of the Territory the sale of the NMLS Bingo
Games
on the Rehab Bingo Website is
prohibited.
|
| 6.4 |
In
the event that arising from an interpretation of the Statutes the
operation of bingo games on the Internet is prohibited, or there
is any
change in the Statutes or in any law in any jurisdiction outside
of the
Territory which causes such prohibition the parties agree forthwith
to
enter into discussions to review matters with a view to continuing
the
operation of this Agreement to the extent legally possible and if
the
parties are unable to agree amendments to this Agreement this Agreement
shall terminate.
|
| 7. |
Financial
Provisions
|
| 7.1 |
All
monies wagered or paid by players participating in the NMLS Bingo
Games on
the Rehab Bingo Website shall be the property of Friends of
Rehab and
NMLS shall procure that Friends of Rehab is
in receipt of all such monies as wagered or paid.
NMLS acknowledges and agrees that, pursuant inter alia to the Principal
Agency Agreement between Friends of Rehab and Rehab, Friends of Rehab
and
Rehab have agreed that Rehab shall administer the Rehab Bingo Website
on
behalf of Friends of Rehab and that Rehab shall be solely responsible
to
NMLS for discharging any payments due to NMLS under this Agreement
and
NMLS shall have no recourse to Friends of Rehab in the event of any
default by Rehab in discharging any payments due to NMLS
hereunder.
|
| 7.2.1 |
In
accordance with Clause 7.4 and subject to Clause 7.2.2 and 10 of
this
Agreement, Rehab shall
pay the Rehab Bingo NMLS Retail Commission
to NMLS which shall be:
|
| (a) |
Fifty
percent of the Rehab Bingo Net Proceeds in respect of each calendar
month
for each of the first five years from the Commencement Date (being
the
period commencing on the Commencement Date and finishing on 29 November
2010);
|
| (b) |
Forty
five percent of the Rehab Bingo Net Proceeds in respect of each calendar
month for each of years six to ten from the Commencement Date (being
the
period commencing on 30 November 2010 and finishing on 29 November
2015),
|
and
save
as otherwise provided herein the Rehab Bingo Net Proceeds less the Rehab Bingo
NMLS Retail Commission shall be for the benefit of Friends of Rehab. For the
avoidance of doubt, the parties acknowledge and agree that there will be no
Rehab Bingo NMLS Retail Commission payable to NMLS in respect of a calendar
month if the Rehab Bingo Net Proceeds for that calendar month are zero or a
negative amount.
| 7.2.2 |
Friends
of Rehab and Rehab acknowledge and agree that, subject to the provision
by
NMLS to Friends of Rehab and Rehab of satisfactory receipts with
respect
thereto and to the extent that NMLS has not, by whatever means, been
reimbursed therefor, any Rehab Bingo Marketing Costs properly incurred
by
NMLS prior to the Commencement Date in respect of the Rehab Bingo
Website
(the “Historic
Bingo Marketing Costs”)
shall (in addition to the Rehab Bingo Marketing Costs for that calendar
month) be payable to NMLS from the Rehab Bingo Gross Net Proceeds
for the
first calendar month of this Agreement. In the event that the Rehab
Bingo
Gross Net Proceeds for the first calendar month of this Agreement
are less
than the sum of the Historic Bingo Marketing Costs and the Rehab
Bingo
Marketing Costs for that month, the Rehab Bingo Gross Net Proceeds
for
that month shall be applied towards discharge of the Historic Bingo
Marketing Costs and the Rehab Bingo Marketing Costs for that month
and the
amount of the shortfall (being the amount of such costs which remains
outstanding after such application of the Rehab Bingo Gross Net Proceeds
for the first calendar month of this Agreement) shall be rolled over
and
aggregated with the Rehab Bingo Marketing Costs for the following
calendar
month for payment out of the Rehab Bingo Gross Net Proceeds for that
next
calendar month (such aggregate amount being the "Total
Bingo Marketing Costs")
. If the Rehab Bingo Gross Net Proceeds for the next calendar month
are
less than the amount of the Total Bingo Marketing Costs, the amount
of the
shortfall shall again be rolled over for payment out of the following
months Rehab Bingo Gross Net Proceeds. This process of rolling over
any
shortfall in or arrears of the Rehab Bingo Marketing Costs and Historic
Bingo Marketing Costs from month to month shall continue throughout
the
term of this Agreement until all such costs are discharged in full.
For
the avoidance of doubt, all Rehab Bingo Marketing Costs properly
incurred
by NMLS during the term of this Agreement in respect of the Rehab
Bingo
Website shall be payable by Rehab to NMLS from the Rehab Bingo Gross
Net
Proceeds for the calendar month in which the Rehab Bingo Marketing
Costs
were incurred or, where the Rehab Bingo Gross Net Proceeds for that
calendar month are less than the Rehab Bingo Marketing Costs for
that
calendar month, from the Rehab Bingo Gross Net Proceeds from each
of the
subsequent calendar months until such costs are discharged in full
to
NMLS. The Parties acknowledge and agree that Rehab shall not be obliged
to
make any payments to NMLS under this Clause 7.2.2 otherwise than
from the
Rehab Bingo Gross Net Proceeds (if any) for any calendar
month.
|
|
7.3
|
In
accordance with Clause 7.4 and subject to Clause 7.2, Rehab shall
pay the
Rehab Bingo NMLS Retail Commission to NMLS in respect of each calendar
month of the term of this
Agreement.
|
| 7.4 |
Within
10 Business Days of the expiration of each calendar month, NMLS shall
send
a financial statement (in a form to be agreed by the Parties) to
Friends
of Rehab and Rehab showing all details of the Rehab Bingo Gross Proceeds,
the Rehab Bingo Prize Payout, the Rehab Bingo Cash Management Costs,
the
Rehab Bingo Marketing Costs, the Rehab Bingo Gross Net Proceeds,
the Rehab
Bingo Net Proceeds and the Rehab Bingo NMLS Retail Commission for
the
preceding calendar month and such other details as the parties may
agree
from time to time (the “Agreed
Bingo Financial Information”).
If satisfied with the financial statement in respect of the Agreed
Bingo
Financial Information, Friends of Rehab and Rehab will confirm their
respective agreement and acceptance within 10 Business Days of receipt
thereof from NMLS (the “Bingo Receipt
Date”)
and subject to the aforesaid acceptance Rehab shall pay the Rehab
Bingo
NMLS Retail Commission
as calculated in the said agreed financial statement for the preceding
calendar month to NMLS within 30 days of the Bingo Receipt Date.
In the
event of any dispute or difference of any kind between the parties
in
respect of the financial statement or any part thereof, the Agreed
Bingo
Financial Information or the amount payable by Rehab to NMLS in respect
of
the Rehab Bingo NMLS Retail Commission, the Parties shall resolve
the said
dispute in accordance with Clause 18 of the Internet Operating Agreement
(as incorporated in this Agreement by virtue of Clause 13). If the
Parties
are unable to reach agreement in respect of any said dispute or difference
within fifteen Business Days from the giving of the Dispute Notice
in
accordance with the said Clause 18 of the Internet Operating Agreement
(as
incorporated in this Agreement by virtue of Clause 13), the payment
obligations of Rehab under this Clause 7.4 shall be suspended until
such
time as the parties reach agreement regarding the disputed matters
or an
Expert (as appointed in accordance with Clause 18 of the Internet
Operating Agreement (as incorporated in this Agreement by virtue
of Clause
13)) has made his final decision in respect of the disputed
matters.
|
| 7.5 |
NMLS
shall maintain all proper books of account and records (in a form
to be
agreed by the Parties) relating directly or indirectly to the operation
of
the Rehab Bingo Website, the NMLS Bingo Games and such other matters
as
the Parties may from time to time agree. For the term of this Agreement
and six years thereafter. NMLS shall allow Friends of Rehab and Rehab
and/or their respective representatives unrestricted access to such
documents and Friends of Rehab and Rehab shall be entitled to conduct
audits of the same at any time during the aforesaid
term.
|
| 7.6 |
In
accordance with Clause 4.3 and within 30 days of the expiration of
every
twelve month period from the Commencement Date, NMLS shall deliver
to
Rehab an audited financial statement for the previous applicable
twelve
month period of trading by NMLS which, without limitation, shall
include
certification of each of the previous applicable twelve monthly financial
statements referred to in Clause
7.4.
|
| 7.7 |
The
parties agree that, in accordance with Clause 5.2.2 of the Internet
Operating Agreement, in the event that NMLS ceases to provide the
services
described in Clause 3.2 of the Internet Operating Agreement to Rehab
and
Friends of Rehab (by reason of the expiry, termination or otherwise
of the
Internet Operating Agreement), the parties shall meet no later than
ten
Business Days from any such cessation to agree a revised NMLS Service
Technology Fee and the terms upon which such fee shall be payable
by Rehab
to NMLS in respect of the services provided by NMLS to Friends of
Rehab
and Rehab under Clause 4.2 of this Agreement.
|
| 7.8 |
All
sales of NMLS Bingo Games on the Rehab Bingo Website shall be made
on such
terms and conditions and at such price as Friends of Rehab, Rehab
and NMLS
may mutually agree in advance from time to time and NMLS shall, in
the
course of dealing with players of NMLS Bingo Games, bring to their
notice
such terms and conditions.
|
| 8. |
Intellectual
Property
|
| 8.1 |
Subject
to the licence granted by Friends of Rehab and Rehab to NMLS in Clause
2.1, nothing in this Agreement shall give NMLS any rights in respect
of
the Intellectual Property and the Bingo Intellectual Property of
Friends
of Rehab and/or Rehab or any trade names used by Friends of Rehab
and/or
Rehab in relation to the Rehab Bingo Website or of the goodwill associated
therewith, and NMLS hereby acknowledges that it shall not acquire
any
rights in respect thereof and that all such rights and goodwill are,
and
shall remain, vested in Friends of Rehab and/or
Rehab.
|
| 8.2 |
Nothing
in this Agreement shall give Friends of Rehab and/or Rehab any rights
in
respect of the intellectual property of NMLS (being the technical
expertise (software and hardware) which NMLS has developed in making
the
NMLS Bingo Games available on the Rehab Bingo Website) or any technology
used by NMLS in relation to the sale of NMLS Bingo Games on the Rehab
Bingo Website and Friends of Rehab and Rehab acknowledge that they
shall
not acquire any rights in respect thereof and that all such rights
and
goodwill are, and shall remain, vested in
NMLS.
|
| 9. |
Liability
|
| 9.1 |
To
the fullest extent permissible under Irish law, the total liability
of
Friends of Rehab (including, for the avoidance of doubt, the Executive
Committee of Friends of Rehab, any member or members thereof and
any
member of members of Friends of Rehab) for any claim whether in contract,
tort (including, without limitation, negligence) or otherwise, for
any
loss or damage howsoever caused, arising out of or in connection
with this
Agreement or otherwise to any party to this Agreement shall in no
circumstances exceed the lesser of (i) the amount of the proceeds
received
by Friends of Rehab under this Agreement from the operation of the
Rehab
Bingo Website in the twelve month period prior to any claim by NMLS
under
this Agreement (being the sum remaining after the total amount of
Rehab
Bingo NMLS Retail Commission for the said twelve month period is
deducted
from the total amount of the Rehab Bingo Net Proceeds for the said
twelve
month period as calculated in accordance with Clause 7.2.1); and
(ii)
€10,000. For the avoidance of all doubt nothing in this clause shall
operate to exclude or restrict any liability of Friends of Rehab
which
liability is of a nature which cannot be lawfully excluded or restricted
under Irish law.
|
| 10. |
Commencement
and Term
|
| 10.1 |
This
Agreement shall come into force on the Commencement Date and shall
continue, unless terminated earlier pursuant to any provisions of
this
Agreement, for a period of 10 years from that date and shall apply
to such
NMLS Bingo Games which are to be used on the Rehab Bingo Site during
that
period.
|
| 10.2 |
Following
expiration of a 9 year period from the Commencement Date this Agreement
may be terminated by a Party giving twelve months’ written notice of
termination to the other Parties.
|
| 10.3 |
Unless
otherwise agreed in writing between the Parties and provided that
the
Rehab Bingo Net Proceeds received by Friends of Rehab under this
Agreement
(less any applicable Rehab Bingo NMLS Retail Commission) for each
of the
years five to ten of this Agreement (for the avoidance of doubt,
year five
shall commence on 30 November 2010 and finish on 29 November 2011
and
references to the following years by number shall be construed
accordingly) is equal to or in excess of a sum of US$500,000, Friends
of
Rehab and Rehab
shall, at the request of NMLS, extend the term of this Agreement
for a
further period of five years from the tenth anniversary of the
Commencement Date.
|
| 10.4 |
Unless
otherwise agreed between the Parties and provided the Rehab Bingo
Net
Proceeds received by Friends of Rehab under this Agreement (less
any
applicable Rehab Bingo NMLS Retail Commission) for each of the years
eleven to fifteen of this Agreement (for the avoidance of doubt,
year
eleven shall commence on 30 November 2015 and finish on 29 November
2016
and references to the following years by number shall be construed
accordingly) is equal to or in excess of US$500,000 Friends of Rehab
and Rehab
shall, at the request of NMLS, extend the term of this Agreement
for
further period of five years from the fifteenth anniversary of the
Commencement Date provided that a Party may terminate this Agreement
during this period by giving twelve months’ written notice of termination
to the other Parties.
|
| 11. |
Summary
Termination
|
| 11.1 |
Without
prejudice to Clause 10.1, Friends of Rehab and/or Rehab shall have
the
right to terminate this Agreement by giving notice, having immediate
effect, to NMLS in the event of the occurrence of any of the following
events of default:
|
| (a) |
NMLS
establish, manage or operate the NMLS Website and/or the NMLS Bingo
Games
in any manner which in the opinion of Friends of Rehab and/or Rehab,
prejudices the goodwill and/or reputation of any of the Rehab Bingo
Brandnames, Brandnames, Friends of Rehab or any Group Company;
|
| (b) |
any
third party with whom NMLS has entered into a contract in relation
to this
Agreement (including, without limitation, Alladdin) acts in a manner
which, in the opinion of Friends of Rehab and/or Rehab prejudices
the
goodwill and/or reputation of any of the Rehab Bingo Brandnames,
Brandnames, Friends of Rehab or any Group
Company;
|
| (c) |
the
aggregate Rehab Bingo Net Proceeds (less the aggregate Rehab Bingo
NMLS
Retail Commission) Friends of Rehab is entitled to and receives pursuant
to Clause 7.2 of this Agreement are less than $100,000 in any of
years two
to ten of this Agreement (for the avoidance of doubt, year two shall
commence on 30 November 2006 and finish on 29 November 2007 and references
to the following years by number shall be construed
accordingly);
|
| (d) |
NMLS
commits any breach of Clause 4.4 and/or 4.5 of this Agreement;
|
| (e) |
NMLS
commits what, in the opinion of Friends of Rehab and/or Rehab, constitutes
a material breach of this Agreement or the Rehab Bingo Procedures
Manuals;
|
| (f) |
the
licensing of the Rehab Bingo Brandnames and Brandnames to NMLS and/or
the
sale of the NMLS Bingo Games on the Rehab Bingo Website is deemed
to be
prohibited under the Statutes or any law outside the Territory;
or
|
| (g) |
any
contract or arrangement which NMLS has entered into with any third
party
relating to the performance obligations and/or liabilities of NMLS
under
this Agreement (including, without limitation, the Alladdin Contract)
is
terminated or expires and a competent and suitably qualified replacement
for said third party is not procured by NMLS pursuant to Clause
4.9.
|
| 12. |
Consequences
of Termination
|
| 12.1 |
Upon
the termination of this Agreement from any cause
whatsoever:
|
| (i) |
The
licence granted to NMLS under Clause 2.1 of this Agreement shall
terminate
with immediate effect;
|
| (ii) |
NMLS
shall immediately remove the Rehab Bingo Brandnames from the
Rehab Bingo
Website and the NMLS Website;
|
| (iii) |
NMLS
shall cease to seek or accept orders in respect of NMLS Bingo Games
on the
Rehab Bingo Website and shall cease to promote the NMLS Bingo Games
on the
NMLS Website;
|
| (iv) |
NMLS
shall refrain from incurring any liability on behalf of Friends of
Rehab
and/or Rehab or from in any way pledging or purporting to pledge
Friends
of Rehab and/or Rehab’s credit or from representing that it has the
authority to incur liability or to pledge or purport to pledge Friends
of
Rehab and/or Rehab’s credit in the manner aforesaid;
|
| (v) |
NMLS
shall have no claim against Friends of Rehab and/or Rehab for compensation
for loss of agency rights, loss of goodwill or any similar
loss;
|
| (vi) |
Clause
7 and 3.10 of the Internet Operating Agreement (as incorporated in
this
Agreement by virtue of Clause 13) shall continue in force in accordance
with their terms; and
|
| (vii) |
Subject
as otherwise provided herein and to any rights or obligations which
have
accrued prior to termination, the parties shall have no further obligation
to each other under this Agreement.
|
| 13. |
Incorporation
of provisions of the Internet Operating
Agreement
|
| 13.1 |
The
provisions of Clauses 1.3 to 1.5, 2.3, 3.4, 3.5, 3.10, 3.11, 4.2,
4.3,
6.2, 6.3, 7, 8, 11, 13.1, 13.3, 15 to 18, 19.1, 19.2, 19.4 to 19.8
and 20
of the Internet Operating Agreement shall apply mutatis
mutandis
to
this Agreement as if the provisions thereof were set out in full
in this
Agreement
and any references therein to:
|
| (a) |
“this
Agreement”
shall be construed as referring to this
Agreement;
|
| (b) |
“Rehab
Content Site”
shall read “Rehab
Bingo Website”;
and
|
| (c) |
“NMLS
Lottery Games”
shall read “NMLS
Bingo Games”.
|
| 13.2 |
For
the avoidance of doubt, this Agreement shall constitute a separate
agreement between Friends of Rehab, Rehab and NMLS in respect of
the NMLS
Bingo Games and the Rehab Bingo Website and shall be independent
of the
Internet Operating Agreement in all respects. Any termination or
expiry of
the Internet Operating Agreement shall not affect the continuance
in force
of this Agreement between the parties. The application of provisions
of
the Internet Operating Agreement mutatis
mutandis
to
this Agreement by virtue of Clause 13.1 shall apply notwithstanding
any
termination or expiry of the Internet Operating Agreement.
|
IN
WITNESS
whereof
the parties hereto have executed these presents the day and year first herein
written.
SIGNED
for and
on behalf of
FRIENDS
OF REHAB SOCIETY by
in
the
presence of:
_____________________
Chairman
_____________________
Secretary
____________________
Treasurer
Witness: ____________________
Address: ____________________
Occupation: __________________
PRESENT
when the
COMMON
SEAL
of
REHAB
NET GAMES LIMITED
was
affixed hereto:
_____________________
Director
_____________________
Director/Secretary
PRESENT
when the
COMMON
SEAL
of
LOTTERY
NETWORK SERVICES LIMITED
was
affixed hereto:
_____________________
Director
_____________________
Director/Secretary
