LASER STORM, INC.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
USER AGREEMENT
GENERAL TERMS AND CONDITIONS
1. Contract. This Contract of Use ("Contract" or "User Agreement"),
consisting of these General Terms and Conditions, the Acknowledgment, and any
Schedule attached hereto, is between Laser Storm, Inc., ("Company") and
D.I.F.A.D.I. S.A. de C.V., a Mexican Corporation ("User") agreeing to use from
the Company the Laser Storm(R) Components covered by this Users Agreement (the
"Components").
2. Per Use Price & Reporting. The Company agrees to allow the User to use
and User agrees to use the Components and Licenses set forth in the attached
Schedules, which are incorporated herein. It is agreed that the Company will
receive an adjusted rate per the Schedule detailed in Addendum I. User shall be
responsible to collect and pay all applicable sales taxes. Play or Use is
computed by using tally counters on the Energy Pods. Each time a player
activates his or her phaser to start a game, the counters increase by one and
the per play price is accrued. Payments shall be paid in arrears in monthly
installments based upon the number of player activations, adjusted for any
discounts or price increases, utilized in the previous month of operation. User
must complete the player activation worksheet, and submit the worksheet and the
monthly payment so that the Company receives both by the 5th day of each month.
2a. Reporting. Reporting shall be provided in detail to Company by
User on a monthly basis with payments of revenue at least monthly. Reports shall
consist of a standard detailed document showing all ticket sales, both gross and
net of taxes, number of free plays and amount charged for each play. Any
discounts, refunds, coupons and/or specials shall also be detailed in a sales
report for each reporting period. Merchandise sales shall be reported in like
manner. User shall also provide a quarterly and annual sales summary to Company.
2b. Equipment Audit. Company reserves the right to require the User to
send in its existing Energy Pods in exchange for replacement Energy Pods, for
the express purpose of auditing the Energy Pod counters, "Equipment Audit". In
the event of any discrepancy, User shall pay to the Company any amounts due and
owing as of this Equipment Audit date plus a 10% penalty based upon the actual
number of player activations. User shall keep a log of all non-play usage such
as error restarts, employee training, testing or no-charge promotional use. Each
entry in the log must be approved by User in order to be deducted from actual
number of player authorizations. The average number of free plays should not
exceed 5% of the total monthly usage. Upon Equipment Audit, any additional
amounts due shall be paid within 30 days of said audit.
2c. Financial Audit. User shall keep accurate and complete records in
accordance with the accounting standards and procedures presently utilized by
User so that all receipts from the sale of tickets, together with the sales of
merchandise are on a daily basis by Company. Company shall have the right at any
reasonable time to inspect any such record of User, including but not limited to
all checks, bills, vouchers, invoices, statements, cash receipts, number of
plays, correspondence, and all other records in connection with the management
of the laser tag facility. Company shall further have the right to cause an
audit to be made of all account books and records connected with the management
of the laser tag facility on an annual basis, fees for which will be equally
shared by User and Company. In the event of an audit, should a discrepancy of
more than 2% be found, the cost of said audit will be borne by User. The Company
reserves the right to terminate the Agreement if the additional amounts due
(pursuant to audit) are not paid on the specified dates due. If User does not
comply with the Service Procedures stated herein, Company reserves the right to
terminate the Agreement upon 30 days prior written notice with right to cure
Company User
---- -----
during such period. Should there be no cure, Company may cease components
service, hold all existing components of User, and pursue collection, pursuant
to paragraph 12 of the User Agreement. If User returns components which have
damage beyond normal operational wear, Company will send written notice to User
noting such damage, pursuant to paragraph 10 of the User Agreement. Company
reserves the right to refuse refurbishment of any component deemed abused.
3. Equipment. Company warrants that the Laser Storm Components (Components)
are safe and will not cause injury if used according to Company's written
instructions. Company will provide instructions to User to be given to customers
as to proper use. User shall train and properly supervise customers as to the
proper treatment of equipment to avoid any unnecessary abuse or misuse.
Components supplied to User are described in Schedule A.
4. Delivery. Delivery shall be made in accordance with the attached
Schedule A. Shipment shall be by any reasonable means chosen by the Company, and
approved by the User. The Company shall notify User of the shipment date and
method of shipment. The Company shall not be responsible for any delay or
failure of delivery resulting from any act of God, labor dispute, fire or other
casualty, international or domestic conflict, difficulty in obtaining materials,
labor or transportation, energy shortage, delay in shipment by the Company 's
suppliers, or any other cause beyond Company's reasonable control. User's
request for delivery of components in less than 60 days will be considered a
rush order. Upon such request, User agrees to pay all reasonable rush charges
incurred on each order.
5. Installation and Site Requirements. The User agrees to prepare and
maintain the installation site of the Components in accordance with
mutually-agreed-upon specifications as provided in detail by Company. Said
specifications, installation date, and location are detailed in Schedule B,
attached hereto and incorporated herein. The Company's authorized representative
will install the Laser Storm(R) Components in a professional and workmanlike
manner with as little disruption to the User's business as possible.
6. Change Orders. User shall have the right to make additions (but not
deletions) to Schedule A.
6a. The User understands the Laser Storm Components will be
manufactured pursuant to User's configuration as detailed in Schedules A and B
and under no circumstances may the User exclude any component listed therein or
decrease the size of the original order.
6b. Scheduled delivery and installation of the Components is specified
in Schedule A. Pursuant to paragraph 5 above and Schedule B, the User agrees the
installation site for the Components will be prepared and the requirements met
in advance of said scheduled delivery date as agreed upon between the Company
and the User. In the event scheduled delivery date is postponed by the User for
any reason, including nonpayment of any payment due or pursuant to Schedule A,
the User agrees to pay the Company an installation delay charge of $1,000.00 per
month. Said installation delay charge shall be paid by the User beginning 30
days after the original installation date as specified in Schedule A and
continuing on the monthly anniversary date of the scheduled delivery date, until
all installation delay charges are paid in full. Said Installation delay charge
shall not be prorated and shall be paid in full prior to rescheduling of the
delivery and installation by the Company. Rescheduling shall be solely at the
discretion of the Company.
6c. The User agrees that any changes to the installation site
specifications and requirements (pursuant to Schedule A) must be provided to the
Company not less than forty-five (45) days prior to the installation date
specified in Schedule B. The User further agrees that in the event the
installation site is not prepared to specifications upon arrival of the
Company's installation personnel, the Company shall remove its personnel and
Components until such time as the installation site is properly prepared as is
mutually agreeable between the User and Company and the User agrees to pay a
delivery cancellation charge of $500.00 per occurrence. Upon the User's notice
to the Company that the site specifications and requirements have been met, and
upon payment of any installation delay charges as set forth in paragraph 6.b.
above, and upon payment of a delivery cancellation charge of $1,000.00 per
occurrence, the Company shall reschedule the installation of the Laser Storm(R)
Components.
Company User
---- -----
7. Permits and Licenses. The User shall apply for and obtain all necessary
building and other governmental permits and licenses which may be required in
connection with the installation of the Components used hereunder. User shall
subsequently comply with and conform to all laws, ordinances, and governmental
regulations relating to the use of the Components.
8. License for Use of Name, Intellectual Property, and Software. User
further acknowledges that User is receiving a license for the use of the name
"Laser Storm" and any other service marks, trademarks, tradenames or other
intellectual property used in describing and defining said components. User is
also receiving a license for the use of the software that operates the purchased
component. This license shall remain the property of Company and User agrees to
abide by the License agreement attached hereto as Schedule D, including the
agreement concerning the use of said property restricted to the specific site
identified in Schedule B.
9. Indemnification. Both parties understand that this agreement is a User
Agreement and Company is in no way acting to participate in the business being
operated by User, whether as an owner, shareholder, partner, joint venture,
member, franchiser, or in any other respect. User agrees that by using the name
of Laser Storm(R), together with the software, and any other name or ▇▇▇▇ owned
by Company and permitted for use by User, User will indemnify and hold Company
harmless from any claims, suits, actions, or other disputes that arise from
User's operation of its business. This includes, specifically, the obligation
for user to pay for the Company to provide legal defense and for any costs,
fees, or expenses of any form incurred by Company as a result of any action
brought based upon the operations of User's business. This clause does not apply
to the use of the Components and use of the License rights herein. Company will
indemnify and hold harmless User and User (and their respective subsidiaries,
affiliates, partner-owners and employees) from any damages, losses or expenses
(including reasonable attorneys fees) arising out of any injury resulting from a
defect in the Components, from Company's failure to properly maintain the
Components, or from the use of the Components (except if the Components are not
used according to Company's written instructions). This paragraph prevails over
any inconsistent provision in the User Agreement and will survive the
termination of the User Agreement.
10. Service Procedures. The Company will maintain, service and make any
necessary installations or repairs in connection with the said components, at
its own expense. The Company is required to keep the Laser Storm Components in
working condition, however the following is expressly excluded: Plastic phaser
shells, headsets, or controller housings damaged by abuse, carelessness or
misuse, including but not limited to being stepped on, dropped, kicked or in any
other way abused or used for any purpose which it is not intended; Connecting
cords which have been cut, torn, pinched or otherwise mutilated, apart from
normal wear and tear; batteries or battery chargers which have been
intentionally shorted out or have been handled in any way inconsistent with
operating instructions; Any units which have been opened, altered, modified or
repaired by anyone other than an authorized Laser Storm(R) technician; and any
other damage which is the result of abuse, misuse, or use inconsistent with the
instructions in the Laser Storm(R) operations manual provided under separate
cover.
10a. In the event of a component failure the User shall first call
Company's Customer Service department for evaluation, then, if instructed,
return the component by overnight mail to the Company in accordance with the
Service Repair instructions outlined in the Operations Manual provided at
installation. The Company shall repair or replace, at the Company's option, the
Component at no charge to the User and return the Component to the User via
overnight delivery, subject to parts availability. No component which has been
abused, or altered, or repaired by other than an authorized representative of
the Company shall be repaired at the Company's expense. User will not be
responsible for damage to the Components caused by normal wear and tear or by
customers' use. User shall train and properly supervise customers as to the
proper treatment of equipment to avoid any unnecessary abuse or misuse.
10b. User shall pay the electricity used in the operation of said
Component.
Company User
---- -----
10c. The User shall apply for an obtain all necessary building and
other governmental permits and licenses which may be required in connection with
the installation of the Component used hereunder. User shall subsequently comply
with and conform to all laws, ordinances, and governmental regulations relating
to the use of the Components.
10d. User shall use all best efforts to take care of components,
protect said components from any vandalism or other physical abuse that may
damage component. All losses and damages caused by the negligence of User shall
be born by User. This shall also be deemed to include stolen or destroyed
components. Same components shall be paid to Company by User at the then
existing retail price of same components.
10e. User shall provide to Company written request for the removal of
any unit. To avoid possible conflicts as relates to existing territorial
agreements with Company's other customers, unit shall not be moved without the
prior written consent of the Company which will not be unreasonably withheld.
11. Professional Management. User shall provide professional management
capable of operating and promoting Laser Storm Components. User shall operate
and maintain all Components, inventory, equipment, designated laser tag area,
supplies and materials used in connection therewith, in a manner calculated to
enhance the reputation of the facility with its customers. User agrees to use
its best efforts in managing said facility in order to provide the maximum
economic return consistent with professional management standards. User shall
have full power and authority to manage the facility and shall be responsible
for directing its supervisors and employees as to the manner and means of
accomplishing the work required to be performed. Performance criteria on the
part of User shall be consistent User's and Company's standards. Performance
criteria is defined as properly managing and promoting the facility to ensure
facility runs at its full potential during normal operating hours. User shall
provide a professional, clean, safe, and fun environment. Staff shall also be of
the same professional caliber.
12. Remedies. That User will keep the components, or additional or
replacement components, insured at component cost as noted on Schedule A for the
benefit of the Company, including but not limited to, fire, vandalism,
pilferage, theft, burglary, negligent breakage, and explosion. Replacement cost
shall be used in the event of a claim. User shall include Company as an
additional insured as respects such component on policies of insurance covering
User's premises. Company shall include User as an additional insured as respects
such component on policies of insurance covering components under this
Agreement. Company will maintain for the term of the Agreement commercial
general liability insurance with a limit of not less than $2,000,000 per
occurrence. User, and User shall be named as additional insured on this policy.
Prior to installation of Components, Company will provide User with a properly
executed original certificate of insurance which will evidence the Company's
general liability insurance coverage and the certificate will provide that the
insurance will not be cancelled or lapse except on 30 days prior written notice
to D.I.F.A.D.I. S.A. de C.V. User shall provide Company proof of general
liability insurance with a limit of not less than $2,000,000 per occurrence.
Company shall be named as an additional insured on this policy. User shall
furnish Company with copies of policies evidencing said insurance by the first
day of operation. User will provide Company with a properly executed original
certificate of insurance which will evidence the Company's general liability
insurance coverage and the certificate will provide that the insurance will not
be cancelled or lapse except on 30 days prior written notice to Laser Storm,
Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Subject to
Paragraph 9, the Company's liability, whether in contract or in tort, arising
out of warranties, representations, instructions or defects of any nature shall
be limited to repairing or replacing, as the Company may elect, any Components
of the Company's manufacture which are returned, with transportation charges
paid, to and from the Company by the User and as to which examination discloses
to the Company's satisfaction any defect in material or workmanship. User shall
bear all expenses of shipping any such part to and from the Company's place of
business. Once the Company provides the Laser Storm Components at no up-front
cost to the User, the Company has fulfilled its obligation to the User and as
such, no default on the part of the Company can be had. Any failure on the part
Company User
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of the Company to provide additional replacement Components cannot trigger any
breach or default provision on the part of the Company. In no event shall the
Company be liable for any lost profits, compensatory incidental or consequential
damages. User agrees to pay all costs, including reasonable attorney fees and
costs of litigation, which may be incurred by the Company to collect amounts
owed by the User or to enforce any other rights of the Company. User will have
the same rights as Company when enforcing User's rights.
12.a. If either party does not comply with the Agreement, then the
other party may give written notice of the non-compliance to the non-complying
party. If the non-compliance is not cured (or prompt action is not commenced to
cure the non-compliance) within 30 days of receiving such notice, then the party
that gave the notice will have the right to terminate the Agreement upon ten
days' written notice. Written notice shall be given to each party either by fax,
overnight delivery or express mail to the address indicated on this Agreement.
12.b. It is further agreed this Agreement will terminate without
penalty or damages if the location closes its business or if there is
substantial damage to the location causing the location to be closed for a
period longer than three months. Company will have a period of 30 days after the
termination date or expiration of the Agreement to remove the Components. If not
removed within such period of time, User may remove the Components and may store
them or ship them to Company, as agreed by the Company, at reasonable expense to
the User.
13. Term. The term of this Agreement shall be three years from a mutually
agreed upon opening date, with annual renewals thereafter to be mutually agreed
upon. The three-year term of this Agreement will commence when the Components
are fully installed and are ready for customer use. The Components will be
located in the area designated by D.I.F.A.D.I. S.A. de C.V. Both parties will
use their best efforts to commence this Agreement when the facility opens for
business. User may renew the Agreement on a year to year basis upon expiration
of the three year term of this Agreement by giving written notice of renewal at
least 30 days prior to the beginning of each one year renewal.
14. Binding Nature. This agreement shall be binding upon both parties
hereto, their respective heirs, executors, administrators, successors, assigns
and transferees.
15. Ownership. All components shall remain at all times the property of
Company, subject to use by User as herein set out. Title shall pass to User upon
final payment as noted in Addendum I.
16. Safety and Environmental Standards. The Company shall not be
responsible for the compliance of the Components with any governmental, federal,
state, or local safety regulations or environmental standards.
17. Miscellaneous Matters.
17.a. All advertising shall be done by User. All Laser Storm, Inc.
related advertising copy must be reviewed and approved by Company in advance in
order to abide by contractual obligations on the part of the Company regarding
certain royalties, rights and restrictions. Company shall make every effort to
respond within 72 hours regarding approval or any concerns relating to any
licensing issues or inappropriate ad materials.
17.b. User agrees to maintain the laser tag area including, vacuuming,
carpet cleaning, painting and any other reasonable and standard maintenance
items to keep a good appearance.
17.c. Agreement to Perform Necessary Acts. Each party to this User
Agreement agrees to perform any further acts and execute and deliver any
documents that maybe reasonably necessary to carry out the provisions of this
User Agreement.
17.d. Amendments and Waivers. The provisions of this User Agreement
may be waived, altered, amended, or repealed, in whole or in part, only on the
written consent of all parties hereto. Waiver of any right, power, or duty by
any party hereunder shall not operate or be construed as a waiver as to any
subsequent occurrence or circumstance.
Company User
---- -----
17.e. Successors and Assigns. This User Agreement, Schedules, and/or
Addendum's shall be binding on, and shall inure to the benefit of, the parties
to it and their respective heirs, estates, personal representatives, legal
representatives, successors, and assigns.
17.f. Validity of Agreement. It is intended that each sentence of this
User Agreement shall be viewed as separate and divisible, and in the event that
any sentence shall be held to be invalid, the remaining sentences shall continue
to be in full force and effect.
17.g. Enforcement Expenses. In the event of a breach of this User
Agreement by either party, the other party shall be entitled to recover any and
all collection costs, execution costs, court costs, professional fees, and
attorney fees incurred in seeking or obtaining said remedy.
17.h. Notices. Any and all notices to be given pursuant to or under
this User Agreement shall be sent to the Company, User and User as is
appropriate. Company and User's notices shall be directed to the addresses shown
below and shall be sent via fax or overnight Federal Express. User's notices
shall be directed to the attention ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ D.I.F.A.D.I. S.A. de C.V
San ▇▇▇▇▇▇ Atoto #4 Naucalplan, ▇▇▇. ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ Fax#
▇▇▇-▇▇▇-▇▇▇-▇▇▇▇.
17.i. Entirety of Agreement. This User Agreement and its attached
Schedules and Addendum constitute the entire agreement between the parties
pertaining to the subject matter contained in it, and supersede all prior and
contemporaneous agreements, representations, warranties, and understandings of
the parties. No supplement, modification, or amendment of this User Agreement
shall be binding unless executed in writing by all the parties hereto. No waiver
of any of the provisions of this User Agreement shall be deemed, or shall
constitute a waiver of any other provision, whether similar or not similar, nor
shall any waiver constitute a continuing waiver. No waiver shall be binding
unless it is in writing signed by the party making the waiver.
18. Failure of Terms. The failure to require a strict compliance or
performance of any one or more terms of this User Agreement on one or more
occasions shall not be deemed a waiver of that or any other term or condition on
that or any other occasion. Any waiver of a right or remedy under this User
Agreement must be contained in a writing signed by the Company or User.
19. Assent to Terms. The confirmation and acceptance embodied in this Use
Agreement is expressly made conditional on User's assent to all terms written
hereof, even though such terms may add to or differ from any verbal terms.
The parties hereto, intending to be bound, have signed this User Agreement.
COMPANY: USER:
LASER STORM, INC. D.I.F.A.D.I. S.A. de C.V.
By: Date By: Date
-------------------- -------- -------------------- ----
Address: Address:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Drive, Unit 1 San ▇▇▇▇▇▇ Atoto #4
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Naucalplan, Edo. De Mexico
Mexico
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇/11/12
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇
THE FOLLOWING PARTS CONSTITUTES THIS TOTAL AGREEMENT:
----- User Agreement
----- Schedule A (Component Description and Delivery Dates)
----- Schedule B (Site Location, Installation Date, and Installation
Plan)
----- Schedule C (Service Procedures)
----- Schedule D (License and Software Specific Site Agreement)
----- Schedule E (Nondisclosure)
----- Addendum I (Revenue Participation Schedule)
Company User
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SCHEDULE A
COMPONENT DESCRIPTION AND INSTALLATION DATES
LASER STORM(R) COMPONENTS:
36 Phasers
36 Controllers
36 Vests with Components
36 Battery Packs
72 Connecting Cords
6 Pods with bracket, connecting cables and power supplies
1 Double sided scoreboard with power supply and mounting hardware
1 StormTrak(TM) Scoring System
Consisting of:
One 486SX 25 Computer, one Color Monitor, Keyboard, Mouse,
Printer, & Custom 3.1 Software, one Box Scorecards
ARENA:
Square foot playing area: 2780 SF +/-
Arena type: Circuit Commandos
Modular polypropylene Laser Storm Blast Barriers with
Polyethylene foam molding and nylon webbing suspension straps
Wall Barriers
Cable Grid System
Pod Housings - 4
Basic Lighting
Basic Sound
F-100 high capacity theatrical fog machine
LIGHTING: Basic lighting system includes Standard Circuit Commandos
Lighting Package
SOUND: Basic audio system includes speakers, amplifier, mixer,
equalizer, CD and racks.
MISCELLANEOUS: Vest racks
SHIPPING TERMS: The Company will ship to Laredo, Texas by March 7, 1997.
Installation will be approximately one week
prior to soft opening or as space becomes available for installation from User.
Company User
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SCHEDULE B
SITE LOCATION, AND INSTALLATION PLAN
User: D.I.F.A.D.I. S.A. de C.V.
Site Location:
-----------------------------------------------------------
Company does not have any software licensees within a five-mile radius and will
not enter into a Software License Agreement with a third party within that
radius.
On Site Telephone: TBD
Off Site Telephone:
-----------------------------------
Site Directions/Notes:
-----------------------------------
Installation Date: Soft opening scheduled for March 1997
Company User
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SCHEDULE C
WARRANTY PROCEDURES
BUILT TO BLAST WARRANTY PROCEDURES
The calculation of Built to Blast warranty, provided by Company is computed by
using tally counters on the Energy Pods or remote access on the computer system.
Each time a player activates his or her phaser to start a game, the counters
increase by one and the appropriate charge is accrued. User must complete the
provided player activation worksheet, and submit the worksheet and the monthly
payment so that the Company receives both by the 10th day of each month. Player
activation worksheet and instructions will be provided at the time of
installation and/or training.
The Company reserves the right to audit the Energy Pod tally counters of the
User at any time to verify the number of player activations as disclosed by
User. Company also reserves the right to require the User to send to the Company
its existing Energy Pods in exchange for replacement Energy Pods, for the
express purpose of auditing the Energy Pod counters. Computer systems can be
audited remotely. In the event of any discrepancy, tampering with the Energy Pod
counters, or circumvention of their function, User shall pay to the Company any
amounts due and owing as of the audit date plus a 7% penalty based upon the
actual number of player activations. Upon audit, any additional amounts due
shall be paid within fifteen (30) days of said audit. See User Agreement.
Upon use of system, User will receive a spare components kit valued at $180.00
for a 12 player system, $360.00 for a 24 player system, $540.00 for a 36 player
system and $720.00 for a 48 player system. As long as the failed Components are
returned to us once User has replaced them from the spare Components kit, the
Company will continue to replace the used-up Components in that Kit. If failed
Components are not returned, User is responsible for replacing Components kit at
prices listed under Warranty Policies.
If User does not comply with the Warranty Procedures stated herein, Company
reserves the right to cure in accordance with paragraphs 10 and 12 of the User
Agreement
If User returns equipment that has been damaged beyond normal operational wear,
Company will send written notice to User noting such damage. Company will then
replace such equipment with warranty repair equipment in accordance to Company's
standard replacement policy. User pays for expense of shipping components for
repair to Company. Company pays for expense of shipping repaired or replaced
components back to User.
Company User
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SCHEDULE D
LICENSE AND SOFTWARE SPECIFIC SITE AGREEMENT
NOTE: Please read this license agreement carefully as it places certain
limitations on User's ability to use the software, trademarks, trade names, and
other intellectual property that will be included with User's Laser Storm(R)
components and which may be required for the operation of User's system.
This Schedule D shall expressly modify the User's Agreement entered into on
this ___________ day of _______, 199___, by and between D.I.F.A.D.I. S.A. de
C.V., a Mexican Corporation ("User") and Laser Storm, Inc., a Colorado
corporation, (hereinafter "Company").
WHEREAS, User has executed an agreement to revenue share with Company
certain Laser Storm(R) System Components described in that contract;
WHEREAS, said sale includes the provision of a License to use certain
software, tradenames, trademarks and other intellectual property that shall
remain the property of Company;
WHEREAS, said revenue share includes restrictions and burdens as well as
benefits, and User understands that the same is anticipated and agreed to within
the User Agreement for the Laser Storm(R) System Components and that if User
were not willing to agree to the terms of this license, the User Agreement for
the accompanying Components would be substantially greater than that negotiated
by these parties.
NOW THEREFORE, in consideration of the mutual terms, conditions and
covenants hereinafter set forth, the parties hereto agree as follows:
1. License For Use of Software. Company hereby provides User with the
non-exclusive right to use the software that has been developed for the
operation of the Laser Storm(R) System. USER MAY NOT USE, COPY, MODIFY, UPGRADE,
SERVICE, ALTER, OR TRANSFER THIS SOFTWARE OR ITS CORRESPONDING DOCUMENTATION AND
MANUALS EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT. In addition, subject to
the terms and conditions contained herein, Company hereby provides User with a
license to utilize the name "Laser Storm(R).
2. Terms of License. This license is effective in perpetuity provided that User
is not in default of the terms of this license and provided that User's system
with which this software was provided is still in operation in the manner
intended at the Site in Schedule B of the User Agreement.
3. Restricted to use of System. This program and License may only be used with
the Laser StormTM component which is the subject of this Agreement. User may not
transfer this software for use with any other components other than the
components with which it is used under this Agreement. Violation of this
paragraph will result in the termination of User's License.
4. Restricted to Specific Site.
4.a. User acknowledges that an integral part of Company's willingness to
provide a license for the use of said software and other intellectual property
is User's agreement that the license shall be limited to the specific site
pursuant to Schedule B of the User Agreement. User also acknowledges that this
restriction serves as a detriment to User in that it will prohibit User from
exercising this License outside of the site pursuant to Schedule B of the User
Agreement.
4.b. The specific site listed in Schedule B of the User Agreement may not
be modified, amended, changed, altered, substituted, enlarged, or condensed
without the express written permission of the User and Company.
5. Upgrades. As a licensee, Company will provide User with information
concerning any upgrades that may be available to the software for User's system.
If an appropriate component upgrade is available and User is not in default of
the User Agreement or attached Schedules, appropriate component upgrades will be
provided by Company at domestic pricing. Company does not warrant that any
particular upgrades will be made, the date by which such upgrades may be
available, or that any particular upgrade will work and be operational with any
particular previous systems.
Company User
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6. Non-transferable. As a protection to all parties, this License shall not be
transferable in any manner by User without the express written consent of the
Company except to a successor to User who acquires the business where the
Components are used.
7. Ownership by Company. User agrees and understands that the software,
tradenames, trademarks, and other intellectual property licensed herein are the
sole and exclusive property of Company.
8. Operations by User. The parties understand that the manner in which User
operates its business using this License has a bearing upon the reputation and
credibility of the Company. Company shall have the right to terminate this
License at any time that User fails to operate in a manner which will damage
Company's image. Furthermore, User must operate within the following guidelines:
8.a. User shall comply with all federal, state, and local regulations
regarding safety and the operation of laser tag arenas except where Company has
responsibility or fault.
8.b. User shall keep appropriate liability insurance in place at all times
while operating this software except as otherwise agreed.
8.c. User shall properly maintain the Laser Storm(R) Components and
software at all times.
8.d. User shall not attempt to operate said Components using software or
electronic equipment provided by any person other than the Company or through
Company's designated and approved manufacturers or vendors.
8.e. User shall not move or relocate said Components or software from its
specific site without the written approval of the Company.
9. Survival of Sale. Although this License Agreement is incorporated into the
User Agreement between User and the Company, the terms and conditions contained
herein shall survive the sale and any closing thereof and shall remain valid and
enforceable during the full term described herein.
10. Default. In the event of default in the performance of the terms or
conditions contained here, the Company shall be specifically permitted to
temporarily withdraw and terminate this license until further order by a court
of appropriate jurisdiction. Said termination shall commence 30 days after such
time as notice shall be given to User of said termination by registered or
certified mail unless default is cured. Either party may then request that a
court, pursuant to paragraph 12 below, either law or in equity, enter such
orders, restraining orders, mandamus orders, or orders to specifically perform
the terms and conditions herein as shall be appropriate. The prevailing party
shall be entitled to an award of its costs and attorney fees incurred in
enforcing the same.
11. Warranty. The warranties applicable to the sale of the Components and the
software, as set forth in the User Agreement between these parties, shall also
apply within this License. Company shall have no obligation other than to ensure
that said software will effectively operate the System Components in the manner
originally intended and Company provides no warranty concerning future upgrades
or changes to the same.
12. Miscellaneous Matters.
12.a. Agreement to Perform Necessary Acts. Each party to this License
agrees to perform any further acts and execute and deliver any documents that
may be necessary to carry out the provisions of this License.
12.b. Amendments and Waivers. The provisions of this License may be waived,
altered, amended, or repealed, in whole or in part, only on the written consent
of all parties hereto. Waiver of any right, power, or duty by any party
thereunder shall not operate or be construed as a waiver as to any subsequent
occurrence or circumstance.
12.c. Successors and Assigns. This License shall be binding on, and shall
inure to the benefit of, the parties to it and their respective heirs, estates,
personal representatives, legal representatives, successors, and assigns.
Company User
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12.d. Validity of Agreement. It is intended that each sentence of this
License shall be viewed as separate and divisible, and in the event that any
sentence shall be held to be invalid, the remaining sentences shall continue to
be in full force and effect.
12.e. Enforcement Expenses. In the event of a breach of this License by any
party, the non-breaching party shall be entitled to recover any and all
collection costs, execution costs, sales costs, court costs, professional fees,
and attorney fees incurred in seeking or obtaining said remedy.
12.f. Notices. Any and all notices to be given pursuant to or under this
License shall be sent to the Company or User at the address noted below, and
shall be sent via fax and Federal Express.
12.g. Failure of Terms. The failure to require strict compliance or
performance of any one or more terms of this License one or more occasions shall
not be deemed a waiver of that or any other term or condition on that or any
other occasion. Any waiver of a right or remedy under this License must be
contained in writing signed by the waiving party.
The parties hereto, intending to be bound, have signed this License and
Software Specific Site Agreement as of the date and year first above written.
COMPANY: USER:
LASER STORM, INC. D.I.F.A.D.I. S.A. de C.V.
By: Date By: Date
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Address: Address:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Drive, Unit 1 San ▇▇▇▇▇▇ Atoto #4
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Naucalplan, Edo. De Mexico
Mexico
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇/11/12
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇
Company User
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