SOFTWARE LICENSE AGREEMENT
This Software License Agreement ("Agreement") is entered into as of this ______
day of _______________ 2005 by and between Fortuna UK a a to-be-formed UK
Corporation (the "Licensee") located at 0 Xxxxxxx Xxxxxxxx, Xxxxxxxxxx Xxx.
Xxxxxx, Xxxxxxx, XX00XXxxx Mobile Gaming Now, Inc., a British Columbia
corporation (the "Licensor") located at #0000-000 Xxxxxxxxx Xxxxxx, Xxxxxx
Xxxxxxx Xxxxxxxx, Xxxxxxxxx, XX, Xxxxxx, X0X 0X0.
RECITALS
A. Licensor licenses certain computer software utilized for the operation
of Internet and Wireless gaming services (the "Software").
B. Licensee desires to operate an Internet / Mobile Gaming Operation and
desires to obtain a limited license to utilize the Software.
C. Accordingly, Licensor hereby licenses the Software to Licensee and
Licensee hereby licenses the Software from Licensor upon the terms and
conditions set forth herein.
AGREEMENT
In consideration of the foregoing and following terms, covenants, promises,
premises and conditions, and for other good and valuable consideration, the
sufficiency, adequacy and receipt of which are hereby acknowledged, the parties
hereby agree as follows:
1. RECITALS. Recitals are a material part of this Agreement.
2. DEFINITIONS. For purposes of this Agreement, the following terms
shall have the following meanings:
a. Authorized Client Provider: "Authorized Client Provider"
shall mean a person who has, by virtue of a Client Provider
Authorization issued by the Commission, been authorized to conduct
interactive gaming and interactive gaming related activities within or
from the Territories.
b. Confidential Information. "Confidential Information" shall
mean, without limitation, material, information, documents, software,
plans, strategies, customer and vendor lists, marketing information,
studies and other information owned, licensed, developed or otherwise
proprietary in nature in the possession of Licensor, Licensee or their
agents, respectively, which is not generally available to or used by
others or the utility or value of which is not generally known or
recognized as a standard practice, whether or not the underlying details
are in the public domain.
c. Games. "Games" shall mean Texas Holdem Poker. (Games are
subject to change)
d. Hardware. "Hardware" shall mean all the necessary computers,
servers, routers, cabling, monitors, hard drives, back-up systems, and
other equipment, as required to properly store, distribute and run the
Software. Provision and maintenance of all Hardware shall be the sole
responsibility of the Licensee.
e. Interactive Gaming License. "Interactive Gaming License"
shall mean a license issued by the Kahnawake Gaming Commission for
hosting at certified premises for the purpose of conducting interactive
gaming or interactive gaming related activities wholly situated within
the Mohawk Territory of Kahnawake.
f. Internet / Mobile Gaming Operation. A comprehensive term used
to describe the Licensee's complete online gaming business as set forth
under this Agreement.
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g. MGN Mobile Gaming Platform." MGN Mobile Gaming Platform
software " shall mean a stand alone, turn-key gaming system that
facilitates the playing, administration and management of games of
chance or skill online or on a mobile handset.
h. Xxxxxxxx.Xx described in Schedule A which includes all
software and related application as well as any data that the Licensor
agreed on in the terms of this agreement. And will use the language that
is selected on Schedule A. Any additional request from the Licensee on
the software development, new games or new marketing systems must have a
separate agreement and quote for development.
i. User. An individual that utilizes the Software operated by
the Licensee.
j. Website. A wireless interface website created by the Licensor
- if so desired by the Licensee - that serves as the Licensee's primary
portal to the Software. The URL for the Website is listed in Schedule B
of this Agreement.
3. SOFTWARE LICENSE. Licensor hereby licenses to Licensee the
Software on the terms and conditions contained herein for the period of
this Agreement. Such Software License is granted on a non-exclusive,
non-transferable, non-assignable basis. See Schedules A through H. Other
schedules may be attached.
Schedule A - General Description of Software
Schedule B - Schedule of Hardware, Software and Support Fees
Schedule C - Fees
Schedule D - Security
Schedule E - Customer Support
Schedule F - Pricing and Revenue Model
Schedule G - Transaction Processing
Schedule H - Kahnawake Interactive Gaming License / Forms B, C and
D
4. INDEMNIFICATION.
a. Limitation on Indemnification. Except as otherwise provided
herein, Licensee acknowledges and agrees that neither Licensor nor its
agents, nor any of their respective members, shareholders, vendors,
suppliers, directors, officers, employees or representatives
(collectively the "Licensor Parties") will be liable to the Licensee or
any of the Licensee's customers for any special, indirect,
consequential, punitive or exemplary damages, or damages for lost
profits or savings, in connection with this Agreement, its performance
or breach. If despite the foregoing limitations, any of the Licensor
Parties should become liable to Licensee or any other person (a
"Claimant"), the maximum aggregate liability of the Licensor Parties
shall be limited to the lesser of the actual amount of loss or damage
suffered by Claimant or the sum of Licensee's fees payable by the
Licensee to Licensor within the two (2) months immediately preceding the
loss.
b. Activities of Licensor. Licensor shall indemnify, defend and
save harmless Licensee and its members, shareholders, vendors,
suppliers, directors, officers, employees, agents, contractors,
representatives, parent company, and subsidiaries (together, the
"Licensee Indemnified Parties") from and against all damages, losses,
costs and expenses (including actual legal fees and costs), fines and
liabilities incurred by or awarded asserted or claimed against any of
the Licensee Indemnified Parties by any third party, including, without
limitation, any licensing or government agency who licenses, regulates,
or otherwise governs the licensing or use of Internet gambling in
connection with the Licensor's activities under this Agreement,
including claims brought by a person using or relying upon any advice
given or publication produced and distributed by the Licensor.
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c. Activities of Licensee. Licensee shall indemnify, defend and
save harmless Licensor and its members, shareholders, vendors,
suppliers, directors, officers, employees, agents, contractors,
representatives, parent company, and subsidiaries (together, the
"Indemnified Parties") from and against all damages, losses, costs and
expenses (including actual legal fees and costs), fines and liabilities
incurred by or awarded asserted or claimed against any of the
Indemnified Parties by any third party, including, without limitation,
any licensing or government agency who licenses, regulates, or otherwise
governs the licensing or use of Internet gambling in connection with the
Licensee's activities under this Agreement, including claims brought by
a person using or relying upon any advice given or publication produced
and distributed by the Licensee.
5. DISRUPTIONS.
a. Defects. Licensor will use reasonable efforts to guarantee
the long term quality and integrity of the Software. However, Licensor
can not guarantee that the Software is error-free. Licensee acknowledges
hereby that such complete freedom of programming errors is unattainable
within the software industry. If the Software fails to substantially
conform to its defined specifications, Licensee may report defects
("Defects") to Licensor in writing. Within ninety (90) days of such
written notice, although with reasonable efforts to minimize such time
period, Licensor shall, at its option, complete one of the following:
(1) substantially correct such Defects provided that the Software has
not been altered or reconfigured in any manner by Licensee or its
agents, or (2) replace such portion of the Software or entire Software
so long as the replacement remains within the noted specifications of
the Software. If Licensor fails to substantially correct Defects within
sixty (60) days of written notice by Licensee, then as Licensee's sole
remedy Licensee may terminate this Agreement with respect to such
release of the Software. In the event that Licensee elects to terminate
the Agreement, Licensee may recover fees paid to Licensor in accordance
with the Agreement up to a maximum amount equivalent to the fees paid to
Licensor by Licensee during the two months prior to termination.
b. Temporary Disruptions. Licensee acknowledges that from time
to time, as a result of numerous reasons, including, without limitation,
Hardware failure, Software failure, Software maintenance, Software bugs,
Software upgrades, supplier failures, or acts of God, the services and
product performance provided under this Agreement by Licensor may be
temporarily disrupted. Licensee acknowledges and agrees that neither
Licensor, its agents nor any Licensor Parties will be liable to Licensee
or any of Licensee's customers or Licensee Parties for any special,
indirect, consequential, punitive or exemplary damages, or damages for
loss of profits or savings, or any other damages, costs or expenses
incurred by Licensee, Licensee Parties or Licensee Users in connection
with any such temporary disruptions.
6. GOVERNMENT ISSUES.
Licensor shall not be held liable for any damages of any kind
that result from any government or quasi-government legislation, policy
or action.
7. CONDITIONS OF LICENSE.
a. Ownership of Software. All right, title and interest in and
to the Software, and any copies and/or derivatives thereof and all
documentation, code -- and logic, which describes and/or composes such
software or any such derivatives shall remain the sole and exclusive
property of Licensor or its agents, as the case may be, pursuant to the
terms of Licensor's agreement with its agents, if any, and Licensee
shall not edit, reverse engineer, copy, emulate, create derivatives of,
compile or decompile or otherwise edit, tamper or modify the Software in
any way. In the event of any such editing, reverse engineering, copying,
emulation, creation of derivative, compilation, decompilation, editing,
tampering or modification of the Software by Licensee, Licensee shall
unconditionally assign and transfer any intellectual property created by
any such non-permitted act to Licensor.
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b. Force Majeure. Except as otherwise specifically provided
herein, Licensor and its agents shall not be responsible for failure of
performance of this Agreement due to causes beyond their control,
including, without limitation, work stoppages, communications outages,
fires, civil unrest, riots, rebellions, acts of God and similar
occurrences.
c. Software Format. The Software format shall remain standard as
determined in Licensor's sole discretion.
d. Non-Exclusive Agreement. Subject only to the right of first
refusal set out in sub-paragraph 12. b.1 hereof, Licensee acknowledges
that this is a non-exclusive agreement and that Licensor will enter into
further licensing agreements with an undefined number of other parties,
and that Licensor may continue any and all such competitive and related
activities without any liability to Licensee hereunder.
e. Compliance with Applicable Law. Licensee shall be responsible
for ensuring that Licensee, and any of its Associates, are operating the
Software in compliance with any and all applicable state, provincial,
national, and international laws. Licensee shall bear the sole
responsibility of determining which jurisdictions have declared Internet
and or mobile gaming illegal. Further, Licensee shall be solely
responsible for determining which jurisdictions to accept xxxxxx from
and for which jurisdictions to market to. As such, Licensee shall stay
abreast of the legality of online gaming in jurisdictions from which it
accepts xxxxxx.
f. Money-Laundering. Licensor has a zero-tolerance policy for
money-laundering activities with respect to the use and operation of the
Software and Licensee hereby represents and warrants that it will take
all actions as necessary to ensure that no money-laundering activities
occur through Licensee's, and Licensee's Associates, operation of the
Software.
g. User Bonus Restrictions. Licensee shall be solely responsible
for any bonuses, incentives, comps, or free game credits given to Users
by Licensee.
h. User Loyalty Programs. Licensee shall be solely responsible
for any costs associated with operating any player loyalty or incentive
programs. Such costs may include, but not be limited to, redemptions by
Users for any prizes or rewards.
8. TERM AND TERMINATION.
a. Term. Subject only to subparagraphs 8. c. and d.hereof, this
Agreement shall commence and be deemed effective on the date when fully
executed (the "Effective Date"). This Agreement shall remain in effect
for a period of three (3) years from the Effective Date (the "Term") and
shall be automatically renewed indefinitely for additional one (1) year
terms.
b. In the event Licensor completes the sale of its business
interests and/or shares to a third party,and pursuant to the provision
of the Assignment paragraph 8 (g), Licensee will have the option to
continue to be licensed by the Licensor's successor organization and/or
receive a complete copy and full working version of the Licensor's
Software and systems as defined in Schedule A at a price to be
determined by an outside valuator. By acquiring the Software and systems
defined in Schedule A, Licensee will be permitted to operate as a stand
alone business without further obligations to Licensor.
c. Licensee Default. In the event that Licensee is in default of
any provision of this Agreement and has failed to cure such default,
Licensor may --- terminate this Agreement upon written notice to
Licensee effective immediately.
d. Party Default. This Agreement may be terminated forthwith at
any time by either party upon written notice to the other party:-
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(a) if the other party commits a material breach of this
Agreement and if such breach is curable, fails to cure the breach
within thirty (30) days of receiving notice of such breach from
the non-breaching party;
(b) if a distress or execution is levied upon or against any of
the chattels or property of the other party and the same is not
paid within seven (7) days of the levying of the same;
(c) if a resolution is passed for the winding-up of the other
party, or a petition for the liquidation of the other party is
presented, or an event analogous to the foregoing occurs
(otherwise than for the purpose of reconstruction or
amalgamation) in any jurisdiction where the other party is
resident, or the other party has a receiver or an administrative
receiver appointed; or
(d) if the other party shall cease or threaten to cease to carry
on its business.
e. Any notice of termination pursuant to this Agreement shall be
in writing and sent to the other party
f. Immediately upon termination for any reason whatsoever,
Licensee shall return any and all copies of the Software, the Derivative
Works, and any documents or materials provided by Licensor to Licensee
under this Agreement. Licensee shall immediately destroy and delete all
electronic copies of the same and confirm such destruction upon oath to
Licensor.
g. Assignment. Neither party may assign any of its rights or
delegate any of its duties under this Agreement without the prior
written consent of the non-assigning party, such consent not to be
unreasonably withheld. In the event of any merger, consolidation,
take-over or other corporate restructuring including, without
limitation, continuance into any jurisdiction involving the requesting
party or any sale or other transfer of all or substantially all of the
assets of the requesting party or any change in control of the
requesting party, this Agreement and the rights and duties hereunder
shall be assignable by the requesting party without the prior consent of
the other party.
9. REMUNERATION.
a. Fees. A fee schedule is provided in Schedule C listing all fees
associated with the setup and operation of the license by the Licensee.
a. Initial Fee.
Subject to sub-paragraphs 12. (d) and 13, (e) hereof, Licensee
shall pay Licensor a one-time, non -refundable, Licensing Acquisition
Fee as the "Initial Fee" in consideration of Licensor's consent to
enter into this Agreement to Licensor's Bank Account in accordance
with Schedule C.
b. Monthly Merchant Fee.
At such time Licensee is authorized to conduct interactive gaming
and interactive gaming related activities within or from the
Territories by virtue of receiving a Client Provider Authorization
status issued by the Commission, Licensee shall commence paying to
Licensor, a monthly merchant fee (the "Monthly Merchant Fee"). The fee
schedule shall be in accordance with Schedule C and based on the total
number of players registered with the Licensee. A report shall be
provided to the Licensor on the 1st of each month for the total number
of players registered with the Licensee the previous month. This
number is used to invoice the Licensee for the Monthly Merchant Fee.
c. Changes in Fees
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All fees set out in this Clause 9 (b) and Schedule C payable to
Licensor shall be subject to changes by Licensor at the end of the
initial term of three years and thereafter, at the end of every year ,
Both parties shall review proposed changes and negotiate fee increases
that are fair and equitable. If any such dispute on fee increases
cannot be settled amicably through ordinary negotiation by appropriate
representatives of Licensor and Licensee, the matter shall be settled
by arbitration in accordance with an Arbitration Act mutually agreed
upon by the parties.
d. Taxes and other Governmental Fees.
Any charges, taxes, duties, fees, excises, tariffs or
governmental fees, if any, in connection with the Licensee's
activities under this Agreement shall be the sole responsibility of
the Licensee.
11. CONFIDENTIALITY
a. General Statement. The parties shall not disclose, publish, or
disseminate Confidential Information to anyone other than those of its
employees or others with a need to know, and the parties agree to take
reasonable precautions to prevent any unauthorized use, disclosure,
publication, or dissemination of Confidential Information. The parties
agree not to use Confidential Information otherwise for its own or any
third party's benefit without the prior written approval of an authorized
representative of the other party in each instance.
b. Power of Attorney. Additionally, Licensee grants to Licensor a
power of attorney to execute any such documents as may be required to fully
assign and vest any propriety rights created by Licensee regarding the
Software during the term and within the scope of this Agreement to
Licensor. Such power of attorney is a power coupled with an interest and is
irrevocable.
c. Further Actions. On Licensor's request, Licensee agrees to execute
such additional documents as may be necessary to appropriately and
completely assign and vest in Licensor any property rights to the Software,
as Licensor's sole and exclusive property, which became vested in or inured
to the benefit of Licensee during the Term of this Agreement.
d. Return of Confidential Information. On termination of this
Agreement, or at the request of Licensor before termination, Licensee shall
deliver to Licensor all material in Licensee's possession relating to
Licensor's business and the Software.
e. Confidentiality of Agreement. Licensee shall not disclose the
contents of this Agreement or any Confidential Information to any third
party who is not bound to maintain confidentiality between the parties.
Licensee acknowledges that disclosure of the terms of this Agreement to
third parties would cause considerable damages, which would be extremely
difficult to determine, and irreparable harm to Licensor.
12. OBLIGATIONS OF LICENSOR.
a. Software Implementation Support. The Licensor through Illuminated
Technologies shall provide Licensee technical support for the installation
and implementation of Software onto Licensee's Hardware.
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b. Additions to Software. Licensor may from time to time, at its sole
discretion and election, create additional games and/or Software features,
which may be added to the Software. If additional Games or features are
made available as a standard part of the Software, Licensor, upon
Licensee's written request, shall provide to Licensee such additional Games
or features at no additional cost to Licensee. Such additional games or
features shall be provided to Licensee's Associates, if any, at Licensor's
then prevailing rates. Further, such additions or features shall not apply
to unique products or features created by Licensor, or its agents, for
other licensees or parties that may have contracted with Licensor for the
development of a specific product or feature.
b.1 Right of First Refusal. Licencee is hereby granted a three month
right of first refusal in respect of all additional games referred to in
subparagraph 12. b. herein and in Numbers 6 and 7 of Schedule A attached
hereto which, without limiting the generality of the foregoing, means that
any and all additional games shall be added, at no charge to Licensee's
software and website no less than three months prior to the same additional
games being offered or added to other the websites of other licensees of
Licensor. Thereafter, such additional games may be offered to other
licensees.
c. Website Design and Software Customization. In accordance with
Licensee's design preferences, Licensor shall provide for the graphic
design customization for the Software and Website of the Licensee gaming
site. Licensee shall be responsible for the selection and payment of the
URL for such Website in each language as set out in Schedule A. Additional
web design services, including website development for Licensee in any
additional languages agreed between the parties in writing from time to
time, may be made available to Licensee in accordance with the fee schedule
noted in Schedule C or as the fee schedule may be revised by Licensor from
time to time.
Licensor shall have the right at any time to change the contents,
format, design or any other elements within the Software at its sole
discretion. If Licensee makes specific requests regarding additional
contents to be included in the Software, the Licensor shall discuss with
Licensee regarding the feasibility of the same and if Licensor agrees to
the additional contents, it shall make such additions to the Software in
accordance with the fee schedule set out in Schedule C (or as it may be
revised from time to time).
d. Kahnawake Gaming License. The Licensor will file to obtain an
Interactive Gaming License and become a License Holder with the Kahnawake
Gaming Commission. In the event that an Interactive Gaming License is not
obtained by Licensor on or before November 1, 2005, Licensee shall, upon
written request made by Licensee to Licensor, forthwith be entitled to a
refund from Licensor in the amount of $50,000.
e. Customer Acquisition.The Licensor will assist the Licensee in
generating new leads and promotions. Software design and strategies will
employ customer acquisition strategies.
13. OBLIGATIONS OF LICENSEE.
a. Hardware. Licensee shall own and operate the specified hardware and
utilize the certified premises within the Mohawk Territory of Kahnawake for
hosting subject to licensing approval. Licensee will hire Illuminated
Technologies to provide hardware and software support. Licensee also agrees
to purchase the necessary hardware to extend system capacity based on the
number of players.
b. Marketing. Licensee shall at all times use its best endeavours to
promote the Website and the Software to all Users and potential Users. The
Licensee shall provide marketing, advertising and publicity for the Website
and the Software.
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c. Merchant Accounts. The Licensee will use the approved services of
Blue Wave Merchant Services and/or an approved processor certified by
Licensor to facilitate merchant account and payment services. See Schedule
G - Transaction Processing. The Licensor does not have access to the
Licensee's player accounts.
d. Proprietary Symbols. Licensee shall ensure that the entry page of
all Licensee and Licensee Associate websites each display a proprietary
icon, as supplied by Licensor, with a hyperlink to the website of the
Licensor or Licensor's agent, as defined by Licensor.
e. Authorized Client Provider License. The Licensor is responsible for
obtaining an Interactive Gaming License from the Kahnawake Gaming
Commission and the Licensee is responsible for the application process for
becoming an authorized Client Provider under the master license. In the
event that an Interactive Gaming License is not obtained by Licensor and
Licensee on or before November 1, 2005, Licensee shall, upon written
request made by Licensee to Licensor, forthwith be entitled to a refund
from Licensor in the amount of $50,000. The Licensee can also obtain its
own gaming license from a recognized jurisdiction for the operation of the
licensed Software. See Schedule H - Kahnawake Interactive Gaming License.
f. Customer Support. The Licensee shall maintain a professional and
competent customer support system either in-house or with a third party
service provider such as ABC Directories in accordance with the training
plan established and managed by the Licensor.
14. REPRESENTATIONS AND WARRANTIES. The parties hereby represent and
warrant as follows:
a. Random Number Generator. Licensor has used all reasonable
endeavours to ensure that there is no bias and that random selection of the
results of MGN Texas Holdem within the Software emulate live situations as
much as is practically possible and economically motivated with computer
generated situations.
b. Legality. Licensor makes no representation or warranty that the use
of the Software for purposes of gambling, as that term is commonly
understood in trade and industry, is legal in any jurisdiction.
c. Merchantability and Fitness. Licensor disclaims all other
warranties, either express or implied, including but not limited to implied
warranties of merchantability and fitness for a particular purpose, with
respect to the Software.
d. Representations. Licensee acknowledges that Licensor has not made
any representations or claims, written, verbal or otherwise, as to the
potential profitability or revenues that may be generated through the
Software or the Internet / Mobile Gaming Operation.
15. INTELLECTUAL PROPERTY INFRINGEMENT.
a. Copyright Infringement Claims. Licensor agrees to defend Licensee
against, and pay the amount of any adverse final judgement (or settlement
to which Licensor consents) resulting from, third party claim(s)
("Indemnified Claims") that the Software infringes any copyright provided:
1) Licensor is notified in writing of the existence or reasonable suspicion
of an Indemnified Claim within fifteen (15 ) days of receipt of said claim
by Licensee, 2) that Licensor is provided sole control over any defence or
settlement related to an Indemnified Claim, and 3) that Licensee provides
reasonable assistance in the defence of the same. Notwithstanding the above
and for avoidance of doubt, Licensor assumes no responsibility whatsoever
in respect to Licensee's website domain name(s) or any other feature or
design relating to the Website or the Software which is included or added
thereon or therein per Licensee's request.
b. Resolution of Copyright Infringement Claims. In the event Licensor
receives information concerning an Indemnified Claim, Licensor may at its
expense, without obligation to do so, either 1) procure for Licensee the
right to continue to use the alleged infringing Software, or 2) replace or
modify the Software to make it non-infringing, and in which case, Licensee,
shall thereupon cease the use of the alleged infringement.
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c. Claim Restrictions. Licensor shall have no liability for any
intellectual property infringement claim (including an Indemnified Claim)
based on Licensee's: (1) use of any Software after Licensor's notice to
Licensee that Licensee should cease to use such Software due to such a
claim; or (2) combination of a Software with any other product, program or
data not provided or developed by Licensor; or (3) adaptation or
modification of the Software not provided or authorized by Licensor. For
all claims described in this section, Licensee agrees to indemnify and
defend Licensor from and against all damages, costs and expenses, including
reasonable attorneys' fees.
d.URL Trademark Issues. Licensee shall be solely responsible for any
trademark disputes that may arise regarding the URLs utilized by Licensee
and its Associates, if any, in connection with this Agreement.
16. NO EMPLOYMENT CONTRACT. Except as specifically provided herein, nothing
contained in the Agreement shall be construed to constitute either party as a
partner, employee, or agent of the other, nor shall either party have any
authority to bind the other in any respect, it being intended that each shall
remain an independent contractor responsible for its own actions.
17. REPRESENTATION OF UNDERSTANDING. All parties and signatories to this
Agreement acknowledge and agree that the terms of this Agreement are contractual
and not mere recital, and all parties and signatories represent and warrant that
they have carefully read this Agreement, have fully reviewed its provisions with
their attorneys, know and understand its contents and sign the same as their own
free acts and deeds. It is understood and agreed by all parties and signatories
to this Agreement that execution of this Agreement may affect rights and
liabilities of substantial extent and degree and with the full understanding of
that fact, they represent that the covenants provided for in this Agreement are
in their respective best interests.
18. CONSTRUCTION. This Agreement was drafted jointly by the parties and
their attorneys, and its provisions shall not be construed against either party.
19. ENTIRE AGREEMENT. This Agreement and the exhibits and schedules attached
hereto constitute the entire agreement between the parties and signatories and
all prior and contemporaneous conversations, negotiations, possible and alleged
agreements, and representations, covenants, and warranties, express or implied,
oral or written, with respect to the subject matter hereof, are waived, merged
herein and superseded hereby. Other than the recommended options to select
Illuminated Technologies, Blue Wave Merchant Services and ABC Directories, which
may be referred to in this Agreement, there are no other agreements,
representations, covenants or warranties not set forth herein. The terms of this
Agreement may not be contradicted by evidence of any prior or contemporaneous
agreement. The parties further intend and agree that this Agreement constitutes
the complete and exclusive statement of its terms and that no extrinsic evidence
whatsoever may be introduced in any judicial or arbitration proceeding, if any,
involving this Agreement. No part of this Agreement may be amended or modified
in any way unless such amendment or modification is expressed in a writing
signed by all parties to this Agreement.
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20. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument. When all of the parties and signatories
have executed any copy hereof, such execution shall constitute the execution of
this Agreement, whereupon it shall become effective.
21. GOVERNING LAW; DISPUTES. Licensor and Licensee shall use their best efforts
to negotiate in good faith and settle amicably any dispute that may arise out of
or relate to this Agreement or a breach thereof. If any such dispute cannot be
settled amicably through ordinary negotiation by appropriate representatives of
Licensor and Licensee, the matter shall be settled by arbitration in accordance
with an Arbitration Act mutually agreed upon by the parties. The parties and
signatories to this Agreement further agree that all questions regarding the
execution, construction, interpretation or enforcement of this Agreement, or the
rights, obligations and liabilities of the parties and signatories hereto, shall
be determined in accordance with the applicable provisions of the laws of the
Country of Canada.
22. JURISDICTIONAL CONSENT. The parties hereto expressly and irrevocably
consent to the jurisdiction of the courts of the country of Canada. Any action
brought by or against either party in connection with the performance,
termination, or breach of this Agreement shall be brought in courts of the
country of Canada, and the parties hereby agree that courts of the country of
Canada shall be a convenient and exclusive forum for the hearing of any such
action. All notices or other documents under this Agreement shall be in writing
and delivered personally or mailed by certified mail, postage prepaid, addressed
to the party being noticed at its last known address.
LICENSOR:
Mobile Gaming Now, Inc. #0000-000 Xxxxxxxxx Xxxxxx, Xxxxxx Xxxxxxx Xxxxxxxx,
Xxxxxxxxx, XX, Xxxxxx, X0X 0X0
Email: xxxx@xxxxxxxxxxxxxxx.xxx
LICENSEE:
Fortuna UK. 0 Xxxxxxx Xxxxxxxx, Xxxxxxxxxx Xxx. Xxxxxx, Xxxxxxx, XX00XX
Email: TBD
23. NON-WAIVER. The failure of any party to insist upon the prompt and
punctual performance of any term or condition in this Agreement, or the failure
of any party to exercise any right or remedy under the terms of this Agreement
on any one or more occasions shall not constitute a waiver of that or any other
term, condition, right, or remedy on that or any subsequent occasion, unless
otherwise expressly provided for herein.
24. HEADINGS. Headings in this Agreement are for convenience only and shall
not be used to interpret or construe its provisions.
25. BINDING EFFECT. The provisions of this Agreement shall be binding upon
and inure to the benefit of each of the parties and their respective successors
and assigns. Nothing expressed or implied in this Agreement is intended, or
shall be construed, to confer upon or give any person, partnership, or
corporation, other than the parties, their successors and assigns, any benefits,
or rights under or by reason of this Agreement, except to the extent of any
contrary provision herein contained.
26. AUTHORITY. The parties hereto represent and warrant that they possess the
full and complete authority to covenant and agree as provided in this Agreement
and, if applicable, to release other parties and signatories as provided herein.
If any party hereto is a corporation, the signatory for any such corporation
represents and warrants that they possess the authority and have been authorized
by the corporation to enter into this Agreement.
-10-
27. ATTORNEYS FEES. Should it be necessary to institute any action to enforce
the terms of this Agreement, the parties hereby agree that the prevailing party
in any such action shall be entitled to recover its reasonable attorneys' fees,
which shall include all costs of litigation, including, but not limited to court
costs, filing fees, and expert witness fees. Further, the attorney fees and
costs include the costs for such items for any appeals. This paragraph shall
remain separate from any judgment entered to enforce its terms and shall entitle
the prevailing party to attorneys fees and costs incurred in connection with
post judgment collection and enforcement efforts.
28. SEVERABILITY. If any provision of this Agreement is held by a court to be
unenforceable or invalid for any reason, the remaining provisions of this
Agreement shall be unaffected by such holding. If the invalidation of any such
provision materially alters the agreement of the parties, then the parties shall
immediately adopt new provisions to replace those which were declared invalid.
29. CURRENCY. All amounts mentioned within this Agreement are in U.S. dollars.
30. TIME OF ESSENCE. Time is of the essence under this Agreement. IN WITNESS
WHEREOF, the parties and signatories execute this Agreement on the date first
indicated above:
LICENSOR: MOBILE GAMING NOW, INC.
ADDRESS: #0000-000 Xxxxxxxxx Xxxxxx, Xxxxxx Xxxxxxx Xxxxxxxx, Xxxxxxxxx, XX,
Xxxxxx, X0X 0X0
Signature:_____________________________________________________________________
Name:__________________________________________________________________________
Date:__________________________________________________________________________
LICENSEE: FORTUNA GAMING UK
ADDRESS: 0 Xxxxxxx Xxxxxxxx, Xxxxxxxxxx Xxx. Xxxxxx, Xxxxxxx, XX00XX
Signature:_____________________________________________________________________
Name:__________________________________________________________________________
Date:__________________________________________________________________________
