EXHIBIT 10.2
EXHIBIT A
PLAYSTAR LICENCE AGREEMENT
THIS AGREEMENT made as of the 16th day of February, 1999
BETWEEN:
CYBERSTATION LIMITED, a corporation organized and existing
under the laws of St. Kitts
(the "Company")
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PLAYERS LIMITED, a corporation organized and existing under
the laws of Antigua
("Players")
WHEREAS PlayStar Wyoming Holding Corp., Cyberstation Computers
& Support Inc. ("Cyberstation"), the Company and Xxxxxx Xxxxx and Xxxxxx Xx
Xxxxxxxxx have entered into an agreement made as of the 2nd day of January, 1999
(the "Master Agreement"), to which this Agreement forms Exhibit "A";
AND WHEREAS the Company is engaged in the business of
developing proprietary software, systems and services used to provide electronic
commerce solutions that enable businesses to sell products and services on the
Internet;
AND WHEREAS the Company is the sole and exclusive owner of all
rights, titles and interest (including all patents, copyrights, trademarks,
service marks, trade names and trade secret rights) and to all software,
documentation, computer programs and the like comprising the intellectual
property and technology developed and used in the Business;
AND WHEREAS, pursuant to Section 3.1 of the Master Agreement,
at Closing, the Company is to enter into this Agreement with Players;
NOW THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth and other good and valuable consideration set
forth in the Master Agreement and in the Shareholders Agreement, the Parties
hereto covenant and agree as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS. Where used herein or in any amendment or supplement hereof,
unless the context otherwise requires, the words and phrases with initial
capitals set forth below will have the meanings so set forth therein.
"AGREEMENT" means this Agreement, including the Exhibits and
Schedules to this Agreement as amended or supplemented from
time to time; and the expressions "ARTICLE", "SECTION", or
"SUBSECTION", "SCHEDULE" and "EXHIBIT" followed by a number or
letter means and refers to the specified Article, section,
subsection, Schedule or Exhibit of this Agreement;
"BUSINESS" means the business carried on by the Company at the
Closing Date (as such term is defined in the Master Agreement)
which primarily involves the business of developing
proprietary software, systems and services used to provide
electronic commerce solutions that enable businesses to sell
products and services on the Internet;
"BUSINESS DAY" means any day except Saturday, Sunday or any
day on which banks are generally not open for business in the
City of Toronto;
"CANADIAN DOLLARS" means the lawful currency of Canada;
"CASINO MODULE" means the software programs and systems
(including source codes) developed by the Company for use in
marketing, administration and/or game playing activities
related to casino style gaming on the Internet;
"COMPANY INTELLECTUAL PROPERTY" means (i) all existing
Intellectual Property, the title to which is owned by the
Company; and (ii) all Intellectual Property hereafter acquired
or developed by the Company, the title to which is owned by
the Company, excluding the Company Software, excluding any
trade-marks or trade names in that Schedule;
"COMPANY SOFTWARE" means all existing Software (including,
without limitation, the Casino Module, Cash Engine, Mail
Engine, Post Engine, MP3 Engine and Bank Engine software
applications) and all Software hereafter acquired or developed
by the Company, the title to which is owned by the Company,
including the Software identified in Schedule 4.1(8)(a) to the
Master Agreement;
"DESIGNATED TERRITORY" means the countries and geographic
territories identified in Schedule 1.1 to the Master
Agreement;
"HARMFUL CODE" means any code or programming instructions that
are constructed with the ability to damage, interfere with, or
otherwise adversely affect computer programs, data files or
hardware without consent or intent of the computer user. This
definition includes, but is not limited to, self-replicating
and self-propagating programming instructions called viruses
or worms;
"INTELLECTUAL PROPERTY" means all rights and interests in:
(a) all inventions, patents, patent rights and patent
applications (including all reissues, divisions,
continuations, continuations-in-part and extensions
of any patent or patent application), industrial
designs and applications for registration of
industrial designs;
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(b) all copyrights, registrations and applications for
copyrights (and all future income from such
copyrights);
(c) all processes, data, trade secrets, designs,
know-how, technologies in development, website
domains, domain names and related software, user
interfaces, source code, object code, algorithms,
architecture, structure, display screens, layouts,
development tools, instructions, templates,
evaluation software and hardware, formulae and
information, manufacturing, engineering and other
drawings and manuals, technology, processes, designs,
lab journals, note books, data, blueprints, research
and development reports, agency agreements, technical
information, technical assistance, engineering data,
design and engineering specifications, and similar
material recording or evidencing expertise or
information; and
(d) all other intellectual and industrial property rights
throughout the world, excluding any and all trademark
rights
"PARTY" means a party to this Agreement and any reference to a
party includes its successors and permitted assigns; and
"PARTIES" means every Party;
"PERSON" is to be broadly interpreted and to include an
individual, a corporation, a partnership, a trustee or any
unincorporated organization and words importing persons have a
similar meaning;
"SOFTWARE" means all rights and interests in all computer
software, whether in source code, object code, machine
readable or human readable forms, and includes all updates,
upgrades, improvements and modifications thereto and all
associated documentation and technical information;
"YEAR 2000 COMPLIANT" has the meaning ascribed thereto in
Section 4.1(10) of the Master Agreement.
1.2 HEADINGS. The division of this Agreement into Articles and Sections, the
insertion of headings and the provision of any table of contents are for
convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
1.3 NUMBER AND GENDER. Unless the context requires otherwise, words importing
the singular include the plural and vice versa and words importing gender
include all genders.
1.4 BUSINESS DAYS. If any payment is required to be made or other action is
required to be taken pursuant to this Agreement on a day which is not a Business
Day, then such payment or action shall be made or taken on the next Business
Day.
1.5 STATUTE REFERENCES. Any reference in this Agreement to any statute or any
section thereof shall, unless otherwise expressly stated, be deemed to be a
reference to such statute or section as amended, restated or re-enacted from
time to time.
1.6 SCHEDULES. Any schedules to this Agreement which have been duly signed by
the Parties hereto shall form part of this Agreement.
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ARTICLE 2
GRANT OF LICENCES
2.1 COMPANY SOFTWARE LICENCE
(a) The Company hereby grants to Players an exclusive,
irrevocable, perpetual royalty-free licence to fully
exploit the Company Software (including, without
limitation, the right to use, execute, reproduce,
display, advertise or distribute the Company Software
in the Designated Territory.
(b) Players shall be entitled to a licence concurrent
with this Agreement under any copyright relating to
the Company Software to the extent that Players would
otherwise be infringing such copyright by exercising
any of the rights granted in subsection 2.1(a). In
the event this Agreement survives the term of such
copyright, such copyright licence shall terminate
upon the expiration of such copyright.
2.2 COMPANY INTELLECTUAL PROPERTY LICENCE
(a) The Company hereby grants to Players an exclusive,
irrevocable, perpetual royalty-free licence to fully
exploit the Company Intellectual Property (including,
without limitation: (a) the right to make, construct
and use any invention, patentable or otherwise, and
to sell such invention to others to be used; (b) the
right to use, reproduce and distribute any works
subject to copyright protection; and (c) the right to
make, import, sell, rent or offer or expose for sale
or rent any industrial design, registrable or
otherwise) in the Designated Territory.
(b) Players shall be entitled to a licence concurrent
with this Agreement under any patent, industrial
design, copyright or other registered intellectual
property right owned by the Company to the extent
that Players would otherwise be infringing such
patent, industrial design, copyright or registered
intellectual property right by exercising any of the
rights granted in subsection 2.2(a). In the event
this Agreement survives the term of any such patent,
industrial design, copyright or registered
intellectual property right, any licence thereunder
shall terminate upon the expiration of such right.
2.3 SUBLICENSING. Players may sublicense and authorize others to sublicense any
or all of the rights granted to it pursuant to Sections 2.1 and 2.2 above.
2.4 NO TRADE-XXXX LICENCE. Nothing in this Agreement shall give Players any
right to use any trade-xxxx or trade name of the Company. In the event Players
wishes to use any trade-xxxx or trade name of the Company, Players and the
Company shall enter into a Trade-xxxx Licence Agreement, the terms and
conditions of which shall be mutually agreed upon by the Parties.
2.5 DELIVERY OF COMPANY SOFTWARE TO PLAYERS
(a) EXISTING COMPANY SOFTWARE. The Company shall promptly
provide Players with a copy of all existing Company
Software, in binary formats, and with all associated
documentation and technical information required for
the effective use thereof.
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(b) COMPANY SOFTWARE HEREAFTER ACQUIRED OR DEVELOPED. The
Company shall provide Players with a copy of all
Company Software hereafter acquired or developed, in
binary formats, and with all associated documentation
and technical information required for the effective
use thereof, immediately upon the request of Players
or in any event, from time to time.
ARTICLE 3
MODIFICATIONS AND IMPROVEMENTS
3.1 BY PLAYERS
(a) TO COMPANY SOFTWARE. Players hereby assigns all
right, title and interest in and to any updates,
upgrades, improvements and modifications which
Players hereafter makes to the Company Software, to
the Company. The Company acknowledges and agrees that
such updates, upgrades, improvements or modifications
shall form part of the Company Software licensed to
Players in Article 2 hereof.
(b) TO COMPANY INTELLECTUAL PROPERTY. Any updates,
upgrades, improvements or modifications made at any
time by Players to the Company Intellectual Property
shall be owned by Players.
3.2 BY COMPANY. Any updates, upgrades, improvements or modifications made at any
time by the Company or by another licensee of the Company Software to the
Company Software shall be owned by the Company. Any updates, upgrades,
improvements or modifications made by the Company to the Company Intellectual
Property shall be owned by the Company. The Company acknowledges and agrees that
any updates, upgrades, improvements or modifications hereafter made by the
Company or by another licensee of the Company Software to the Company Software
shall form part of the Company Software licensed to Players in Article 2 hereof.
Similarly, the Company acknowledges and agrees that any updates, upgrades,
improvements or modifications hereafter made by the Company to the Company
Intellectual Property shall form part of the Company Intellectual Property
licensed to Players in Article 2.
3.3 SHARING OF COMPANY SOFTWARE AND COMPANY INTELLECTUAL PROPERTY WITH
CYBERSTATION. Without limiting the scope of the licences granted in Sections 2.1
and 2.2 above, the Company acknowledges and agrees that Players is entitled to
disclose to and share with Cyberstation (another licensee of the Company
Software) any updates, upgrades, improvements or modifications which Players
makes to the Company Software or to the Company Intellectual Property and that
Cyberstation is entitled to disclose to and share with Players any updates,
upgrades, improvements or modifications which Cyberstation makes to the Company
Software or to the Company Intellectual Property. Further, the Company
acknowledges and agrees that Players and Cyberstation are entitled to jointly
develop updates, upgrades, improvements or modifications to the Company Software
or to the Company Intellectual Property. Nothing in this Section 3.3 obligates
either Players or Cyberstation to jointly develop any such updates, upgrades,
improvements or modifications to the Company Software or to the Company
Intellectual Property or to disclose or share any updates, upgrades,
improvements or modifications which it makes to the Company Software or to the
Company Intellectual Property with one another.
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ARTICLE 4
WARRANTIES
4.1 The Company represents and warrants for the term of this Agreement and for a
period of five (5) years from the date of termination of this Agreement as
follows:
(1) COMPANY SOFTWARE
(a) The Company is the exclusive owner of all right,
title and interest in and to the Company Software,
and the Company has the right to use, execute,
reproduce, display or advertise and has the right to
distribute, exploit, sell, transfer, license or
lease, including the right to license the rights set
forth in Article 2, to Players. The Company is in
possession of (i) the source code and object code for
all Company Software; and (ii) all other
documentation and know-how required for the effective
use of the Company Software.
(b) Except for the rights granted to Players hereunder
and to Cyberstation as contemplated in Section 3.1 of
the Master Agreement, no person other than the
Company has any right or interest of any kind or
nature in or with respect to the Company Software or
any portion thereof including any right to sell,
license, lease, transfer, distribute, use or
otherwise exploit the Company Software or any portion
thereof. There has been no disclosure of the Company
Software, other than to Players hereunder and to
Cyberstation as contemplated in Section 3.1, through
the licensing of binery versions of the Company
Software.
(c) The Company is in possession of all documentation,
technical specifications and know-how required to
permit Players to understand, operate, maintain,
support and modify the Company Software and use the
Company Software for the purposes for which it is
intended. All source code for the Company Software is
sufficiently documented in the source code to enable
a reasonably skilled developer in that environment to
understand, modify, compile, maintain, operate, and
otherwise utilize all aspect of the related software
without reference to other sources of information.
(d) To the knowledge of the Company, the Company Software
is free from material programming errors and defects
of workmanship and materials when maintained and
operated in accordance with the Company's
documentation and user guides.
(e) In no instance has the eligibility of the Company
Software for protection under applicable copyright
law been forfeited to the public domain by omission
of any required notice or any other action.
(f) The Company Software contains no Harmful Code.
(2) COMPANY INTELLECTUAL PROPERTY
(a) The Company is the sole registered and beneficial
owner of the Company Intellectual Property and has
the right to use and license the use of the Company
Intellectual Property hereunder.
(b) The Company is the only owner of the Company
Intellectual Property and is entitled to the
exclusive and uninterrupted use of such Company
Intellectual Property. No past or present
shareholder, officer, director or employee of the
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Company or Cyberstation or any third party has any
right, title or interest in any of the Company
Intellectual Property of Company Software, with the
exception of any rights granted to Cyberstation as
contemplated in Section 3.1 of the Master Agreement.
A ll such Persons have waived their moral rights in
any copyright works within the Company Intellectual
Property and the Company Software.
(c) No Person has challenged the validity of the Company
Intellectual Property or the Company's rights to,
title to or interest in any of the Company
Intellectual Property.
(d) Neither the use of the Company Intellectual Property
has infringed or currently infringes upon the
industrial or intellectual property rights of any
other Person.
(e) No other Person has infringed the Company's rights to
the Company Intellectual Property, and the Company
has diligently protected its legal and moral rights
to the exclusive use of the Company Intellectual
Property, including Intellectual Property relating to
the Company Software.
(3) YEAR 2000 COMPLIANCE. The Company Software is Year 2000
Compliant.
ARTICLE 5
TERM AND TERMINATION
5.1 TERM. This Agreement and the licences granted hereunder shall be effective
as of the date first written above and shall continue in perpetuity, unless
terminated upon the mutual agreement of the Parties.
ARTICLE 6
GENERAL
6.1 NOTICES
(1) All notices and other communications hereunder shall be in writing
and shall be sent by certified mail, postage prepaid, return receipt requested;
by an overnight express courier services that provides written confirmation of
delivery; or by facsimile with confirmation, addressed as follows:
IF TO THE COMPANY:
Cyberstation Limited
6 Horizons Villas
Fort Tyson
Frigate Bay
St. Kitts, WI
Attention: The President
Fax: (000) 000-0000
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With a copy (which shall not constitute notice) to:
Xxxxxx & Xxxxxx
1 First Canadian Place
000 Xxxx Xxxxxx Xxxx
P.O. Box 160, Suite 700
Toronto, Ontario
M5X 1C7
Attention: Xxx Xxxxxx
Fax: (000) 000-0000
IF TO PLAYERS:
PlayStar Wyoming Holding Corp.
The Dollar Building
Nevis Street, Top Floor
St. John's, Antigua, WI
Attention: Xxxxxxx X.X. Xxxxxx
Fax: (000) 000-0000
With a copy (which shall not constitute notice) to:
Blake, Xxxxxxx & Xxxxxxx
Box 00
Xxxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: X. X. Xxxxx
Fax: (000) 000-0000
(2) Any such communication so given or made shall be deemed to have
been given or made and to have been received on the day of delivery if
delivered, or on the day of faxing or sending by other means of recorded
electronic communication, provided that such day in either event is a Business
Day and the communication is so delivered, faxed or sent before 4:30 p.m. on
such day. Otherwise, such communication shall be deemed to have been given and
made and to have been received on the next following Business Day. Any such
communication sent by mail shall be deemed to have been given and made and to
have been received on the fifth Business Day following the mailing thereof;
provided however that no such communication shall be mailed during any actual or
apprehended disruption of postal services. Any such communication given or made
in any other manner shall be deemed to have been given or made and to have been
received only upon actual receipt.
(3) Any Party may change its address for receiving notice by giving
notice of a new address in the manner provided herein.
6.2 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties pertaining to the subject matter of this Agreement and supersedes
all prior agreements, understandings, negotiations and discussions, whether oral
or written.
6.3 TIME OF ESSENCE. Time shall be of the essence of this Agreement.
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6.4 SEVERABILITY. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid, illegal or unenforceable in any respect,
such determination shall not impair or affect the validity, legality or
enforceability of the remaining provisions hereof, and each provision is hereby
declared to be separate, severable and distinct.
6.5 GOVERNING LAW. This Agreement shall be construed, interpreted and enforced
in accordance with, and the respective rights and obligations of the parties
shall be governed by, the laws of the Province of Ontario and the federal laws
of Canada applicable therein, and each Party hereby irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the courts of such
province and all courts competent to hear appeals therefrom.
6.6 WAIVER. A waiver of any default, breach or non-compliance under this
Agreement is not effective unless in writing and signed by the Party to be bound
by the waiver. No waiver shall be inferred from or implied by any failure to act
or delay in acting by a Party in respect of any default, breach or
non-observance or by anything done or omitted to be done by the other Party. The
waiver by a Party of any default, breach or non-compliance under this Agreement
shall not operate as a waiver of that Party's rights under this Agreement in
respect of any continuing or subsequent default, breach or non-observance
(whether of the same or any other nature).
6.7 SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by either Party
without the prior written consent of the other Party. This Agreement may be
assigned by either Party (i) upon notice to the other Party; and (ii) subject to
the new assignee agreeing to the terms and conditions of this Agreement. This
Agreement shall be binding upon the parties hereto, and their successors and
permitted assigns.
6.8 COUNTERPART EXECUTION. This Agreement may be executed in any number of
counterparts, by facsimile or otherwise, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first written above.
CYBERSTATION LIMITED
By:
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Xxxxxx Xxxxxxx, Authorized Signing Officer
PLAYERS LIMITED
By:
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Xxxxxxx X.X. Xxxxxx, President
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