AGREEMENT ACTION POKER GAMING INC. and MAHJONG SYSTEMS LIMITED
Exhibit
4.4
AGREEMENT
ACTION
POKER GAMING INC.
and
MAHJONG
SYSTEMS LIMITED
MEMORANDUM
OF AGREEMENT
entered
into between:
ACTION
POKER GAMING INC.
A
company
duly incorporated under the laws of Antigua
and
MAHJONG
SYSTEMS LIMITED
A
company
domiciled in the Turks and Caicos Islands that offers a centralised Mahjong
Gaming System and manages the settling of winnings and losses between
participants.
RECITALS
WHEREAS “Action
Poker Gaming Inc.” (“Action
Poker”)
operates
a gaming web site as part of their business;
AND
WHEREAS “Mahjong Systems Limited” (MSL)
is a
company established to operate a centralised gaming engine and settlement system
for the benefit of the customers of its partners;
AND
WHEREAS “Action
Poker”
wishes
to integrate a multi player mahjong game into its existing gaming web site
;
NOW
THEREFORE
the
Parties agree to the following:
| 1. |
DEFINITIONS
|
Unless
the
contrary is clearly indicated, the following words and/or phrases, shall have
the following meaning:
|
1.1
|
“this
/ the Agreement”
|
shall
mean this written document together with all written appendices,
annexures, exhibits or amendments attached to it from time to time
by
written agreement between the parties;
|
|
1.2
|
“Commencement
Date”
|
shall
mean the date on which the duly authorized representatives of the
Parties
affixes their signatures to the Agreement;
|
|
1.3
|
“Confidential
Information”
|
shall
mean the personal information of the Introduced Players, including
personal information and play history;
|
|
1.4
|
“Currency”
|
shall
mean (not limited to) United States Dollars or EUROs;
|
|
1.5
|
"Rake"
|
shall
mean the share, in the Currency, of the winnings paid in each game
that is
collected by MSL as a fee for its service;
|
|
1.6
|
"MSL"
|
shall
mean a company with registered address Mahjong Systems Limited,
Britannic
House, Providenciales, Turks and Caicos Islands, B.W.I herein represented
by its duly authorized representative, ▇▇. ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇;
|
|
1.7
|
"Introduced
Players"
|
shall
mean players of the Mahjong Games, introduced by “Action Poker” as
recorded by the mahjong system;
|
|
1.8
|
"Mahjong
Games"
|
shall
mean the multi player Mahjong game and any other games that “MSL” may make
available from time to time;
|
|
1.9
|
“Parties”
|
shall
mean “Action Poker” and “MSL”;
|
|
1.10
|
“Partners”
|
shall
mean all gaming systems that provide players and integrate with
“MSL” in a
manner similar to that contemplated in this agreement
|
|
;
|
||
|
1.11
|
“Float”
|
shall
mean the funds held as Deposit by “MSL” and adjusted in the monthly
settlement;
|
|
1.12
|
“Float
Amount”
|
The
amount of Float that is
|
|
agreed
between “MSL” and “Action Poker”, as adjusted from time to time, and held
by “MSL” to cover possible losses by Players;
|
||
|
1.13
|
“Action
Poker”
|
shall
mean Action Poker Gaming Inc., a company duly incorporated under
the laws
of Antigua, having its address for service under this Agreement
at ▇▇. ▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇, ▇▇.▇▇▇▇’s Antigua;
|
| 1.14 | Any reference to the singular includes the plural and vice versa; | |
| 1.15 | Any reference to natural persons includes legal persons and vice versa; | |
| 1.16 | Any reference to a gender includes other genders; | |
| 1.17 | The clause headings in this agreement have been inserted for convenience only and shall not be taken into account in its interpretation. | |
2. DURATION
| 2.1 |
The
Agreement shall commence on the Commencement
Date.
|
|
2.2
|
The
Agreement will continue in force for a period of two years calculated
from
the Commencement
Date
and thereafter be renewed for further periods of three (3) years
subject
to either of the Parties’ right to terminate the Agreement, after the
expiry of the initial two-(2)- year term, by giving one (1) month’s
written notice.
|
|
3.
|
RIGHT
OF PARTICIPATION IN REVENUE
SHARING
|
|
3.1
|
The
Parties agree that other Partners may participate in revenue sharing
with
“MSL”
in
a similar manner to that contemplated in this Agreement.
|
| 4. |
RIGHT
AND OBLIGATIONS OF MSL
|
“MSL”
shall:
|
4.1
|
Have
the right to use third parties to perform any of these rights and
obligations;
|
|
4.2
|
Ensure
that it is legally authorized to provide the Mahjong
Games;
|
|
4.3
|
Ensure
that all transactions in respect of its obligations in terms of this
Agreement are conducted in the Currency as defined in the systems
specifications;
|
|
4.4
|
Settle
all net differences between Partners on a monthly basis within thirty
(30)
days of the end of each month by,
|
|
4.4.1
|
in
the event that the Float is less than the Float Amount, instructing
a
Partner to remit funds to return the Float to the Float Amount;
|
|
4.4.2
|
in
the event that the Float is greater than the Float Amount, paying
the
Partner the excess amount;
|
|
4.5
|
Pay
the “Action
Poker”
commissions, as a percentage of the Rake, to “Action
Poker”
as
defined in Schedule 1, these commissions settled in the same transactions
as the settlement defined in 4.4;
|
|
4.6
|
Provide
monthly report of Float movements and commissions due to “Action
Poker”
and provide real-time access to financial and game
information;
|
|
4.7
|
Hold
the Float Amount in trust for “Action
Poker”
and return all amounts that are not spent in the case of cancellation
to
“Action
Poker”;
|
|
4.8
|
Monitor
the Float Amount and inform “Action
Poker”
if
it is insufficient for the current play
rate;
|
|
4.9
|
Keep
full and proper books of accounts and records showing clearly all
transactions relating to “MSL”'s
obligations in respect of this
Agreement;
|
|
4.10
|
Allow
any person authorized by “Action
Poker”
to
have access at all reasonable times to “MSL”'s
premises for the purposes of inspecting the books and records to
the
extent that this is necessary to ensure “Action
Poker”’s
interests are being protected as provided for in this
Agreement;
|
|
4.11
|
Provide
all computer components, equipment and software needed to provide
the
electronic system to operate the Mahjong Games, including back office
systems that may be accessed by “Action
Poker”
support staff to provide player
support;
|
|
4.12
|
Provide
systems and make best endeavors to prevent collusion, and update
these
systems on an ongoing basis where
appropriate;
|
|
4.13
|
Provide
support and service as follows to “Action
Poker”
for technical and software issues:
|
|
4.13.1
|
Respond
to problem notifications within two (2) hours of being advised of
a
problem. “MSL”
will make best endeavors to solve the problem within twelve (12)
hours of
receiving notification of a
problem;
|
|
4.13.2
|
“MSL”
has no right to communicate with, nor ownership of, Introduced
Players
|
| 5. |
RIGHTS
AND OBLIGATIONS OF Action
Poker
|
“Action
Poker”
shall:
|
5.1
|
Promote
the Mahjong Games and be responsible for all associated
costs;
|
|
5.2
|
Not
bring “MSL”
into disrepute by marketing or selling the Mahjong Games in any fashion
deemed to be illegal or
undesirable;
|
|
5.3
|
Use
best endeavors to ensure that its activities do not violate the laws
of
any country;
|
|
5.4
|
Inform
“MSL”
as
soon as possible of any legal difficulties that are encountered in
respect
of the promotion of the Mahjong
Games;
|
|
5.5
|
Be
responsible for all costs incurred by “Action
Poker”
for their own account in the software integration, it being understood
that “MSL”
shall
undertake and bear all of the costs to be incurred in facilitating
the
initial integration of the “Mahjong
Mania”
software;
|
|
5.6
|
Be
responsible for and bear all costs with relation to the player
relationship including:
|
|
5.6.1
|
Acquiring
funds into players’ accounts that may be subsequently used for the Mahjong
Game,
|
|
5.6.2
|
Providing
customer support to players,
|
|
5.6.3
|
Settlement
of player withdrawals,
|
|
5.6.4
|
Managing
and funding where necessary any shortfalls through charge backs or
fraud,
|
|
5.6.5
|
Provision
of all software and hardware systems associated with the player
relationship;
|
|
5.7
|
Pay
an initial and annual License Fee as per Schedule
1;
|
|
5.8
|
Deposit
funds with “MSL”
to
establish the Float. The Float will cover the expected maximum deficit
that would be realized in the course of one (1) month, such float
to be
adjusted where necessary during the course of the month in good time
to
avoid players being refused games. The initial float amount is set
as per
Schedule 1.
|
| 6. |
INTELLECTUAL
PROPERTY RIGHTS
|
|
6.1
|
“Action
Poker”
shall not acquire any right, title or interest in any copyright or
other
intellectual property rights in the Mahjong Games by virtue of this
Agreement;
|
|
6.2
|
“MSL”
shall not acquire any right, title or interest in any copyright or
other
intellectual property rights in “Action
Poker”’s
trademarks, trade names, copyrights and other rights used or embodied
in
or in connection with its
activities.
|
| 7. |
VALIDITY
|
|
7.1
|
If
any provision of this Agreement
is found or held to be invalid or unenforceable, the validity and
enforceability of all the other provisions of this Agreement
will not be affected thereby.
|
| 8. |
CONFIDENTIALITY
|
|
8.1
|
“MSL”
shall hold in confidence all Confidential
Information
received and not divulge the Confidential
Information
to any person, including any of its personnel, save for Parties directly
involved with the execution of this
Agreement;
|
|
8.2
|
“Action
Poker”
shall have full rights to and access to the Confidential
Information.
|
|
8.3
|
The
parties shall prevent disclosure of the Confidential
Information,
except as may be required by law.
|
|
8.4
|
“MSL”
shall ensure that each staff member or external party having access
to
Confidential Information is bound by individual non-disclosure
agreements.
|
| 9. |
TERMINATION
OF AGREEMENT
|
|
9.1
|
This
Agreement may be terminated with immediate effect by “MSL”
in
the event of “Action
Poker”
not complying with the “MSL”
requirements in terms of clause 5.2. This clause shall not be unreasonably
invoked.
|
|
9.2
|
Each
party may terminate this Agreement by written notice to the other
Party in
accordance with clause 2.2 after the initial
period.
|
|
9.3
|
Either
Party may terminate this Agreement by written notice if the other
is in
breach of any of the obligations of this Agreement and fails to remedy
such breach within thirty (30) days after written notice to do so
has been
dispatched by the other Party.
|
|
9.4
|
Either
Party may terminate this Agreement immediately and without notice
if:
|
|
9.4.1
|
the
other enters into a composition with its
creditors;
|
|
9.4.2
|
an
order is made for the winding up of the
other;
|
|
9.4.3
|
an
effective resolution is passed for the winding up of the other (other
than
for the purposes of amalgamation or reconstruction on terms approved
by
the first Party (such approval not to be unreasonably withheld));
or
|
|
9.4.4
|
the
other has a receiver, manager, administrative receiver or administrator
appointed in respect of it.
|
| 9.5 |
Effect
of Termination
|
The
termination of the Agreement, for whatever reason, shall not affect the rights
of either of the parties:
|
9.5.1
|
that
may have accrued before the termination of the Agreement;
or
|
|
9.5.2
|
which
specifically or by their nature survive the termination of the
Agreement.
|
|
9.6
|
On
termination, “MSL”
will provide, in an electronic format acceptable to “Action
Poker”,
a
copy of all the Confidential Information relating to “Action
Poker”.
|
|
9.7
|
“MSL”
shall destroy all copies of Confidential Information relating to
“Action
Poker”
once it is no longer required to be
kept.
|
| 10. |
DOMICILIUM
|
The
Parties elect the following addresses as their respective domicilium
citandi et executandi:
| 10.1 |
“Action
Poker”:
Action
Poker Gaming Inc.:
▇▇. ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇.
▇▇▇ ▇▇▇▇
▇▇.▇▇▇▇’s, Antigua
|
| 10.2 |
“MSL”:
Mahjong
Systems Limited
Britannic House
Providenciales
Turks
and Caicos Islands B.W.I |
|
10.3
|
Either
of the Parties may change its
domicilium citandi et executandi to
another address within the same country, by way of a notice to the
other
party to this Agreement, provided that such a notice is received
by the
addressee, at least 7 (seven) calendar days prior to such a change
taking
effect.
|
| 11. |
NOTICES
|
The
Parties elect the following addresses at which all notices and other
communications must be delivered for the purposes of this Agreement:
| 11.1 |
“Action
Poker”:
|
| 11.1.1 |
By
hand at:
▇▇. ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇.▇▇▇▇’s,
Antigua
|
For
the
attention of: ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Director
| 11.1.2 |
With
a copy to:
|
Las
Vegas
From ▇▇▇▇.▇▇▇ Entertainment Inc.
▇▇▇
▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Street
Vancouver,
British Columbia,
For
the
attention of:
▇▇.
▇▇▇▇
▇▇▇▇▇▇▇▇▇
| 11.2 |
“MSL”:
|
| 11.2.1 |
By
hand at:
Brittanic House, Providenciales
Turks and Caicos Islands, B.W.I
For the attention of: ▇▇.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
|
.
| 11.2.2 |
With
a copy to:
Events
International Holding Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇
▇▇▇
|
For
the
attention of:
▇▇.
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
11.3
|
Any
notice or communication required or permitted to be given in terms
of this
Agreement
shall only be valid and effective if it is in
writing.
|
|
11.4
|
Any
notice addressed to either of the Parties and contained in a correctly
addressed envelope and sent by registered post to it at its chosen
address
or delivered by hand at its chosen address to a responsible person
on any
day of the week between 09h00 and 16h00, excluding Saturdays, Sundays
and
public holidays, shall be deemed to have been received, unless the
contrary is proved, if sent by registered post, on the fourteenth
calendar
day after posting and, in the case of hand delivery, on the day of
delivery.
|
|
11.5
|
Any
notice sent by telefax to either of the Parties at its telefax number
shall be deemed, unless the contrary is proved, to have been
received:
|
| 11.5.1 |
if
it is transmitted on any day of the week between 09h00 and 16h00,
excluding Saturdays, Sundays and public holidays, within 2 (two)
hours of
transmission;
|
| 11.5.2 |
if
it is transmitted outside of these times, within two hours of the
commencement of the next day of the week between 09h00 and 16h00,
excluding Saturdays, Sundays and public holidays, after it has been
transmitted.
|
| 12. |
FORCE
MAJEURE
|
|
12.1
|
Neither
of the Parties shall be liable for a failure to perform any of its
obligations insofar as it proves:
|
| 12.1.1 |
that
the failure was due to an impediment beyond its
control;
|
| 12.1.2 |
that
it could not reasonably be expected to have taken the impediment
and its
effects upon the party’s ability to perform into account at the time of
the conclusion of this Agreement; and
|
| 12.1.3 |
that
it could not reasonably have avoided or overcome the impediment or
at
least its effects.
|
|
12.2
|
An
impediment, as aforesaid, may result from events such as the following,
this enumeration not being
exhaustive:
|
| 12.2.1 |
war,
whether declared or not, civil war, civil violence, riots and revolutions,
acts of sabotage;
|
| 12.2.2 |
natural
disasters such as violent storms, cyclones, earthquakes, tidal waves,
floods, destruction by lightning;
|
| 12.2.3 |
explosions,
fires, destruction of machines, factories and any kind of
installations;
|
| 12.2.4 |
boycotts,
strikes and lock-outs of all kinds, go-slows, occupation of factories
and
premises and work stoppages;
|
| 12.2.5 |
acts
of authority, whether lawful or unlawful, apart from acts from which
the
party seeking relief has assumed the risk by virtue of any other
provisions of this Agreement.
|
|
12.3
|
For
the purposes of this clause “impediment” does not include lack of
authorisations, of licences, of permits or of approvals necessary
for the
performance of this Agreement
and to be issued by the appropriate public
authority.
|
|
12.4
|
Relief
from liability for non-performance by reason of the provisions of
this
clause shall commence on the date upon which the party seeking relief
gives Notice
of the impediment relied upon and shall terminate upon the date upon
which
such impediment ceases to exist; provided that if such impediment
continues for a period of more than sixty (60) days either of the
Parties
shall be entitled to terminate this Agreement.
|
| 13. |
ENTIRE
AGREEMENT AND VARIATIONS
|
|
13.1
|
This
Agreement
including schedule 1 constitutes the whole agreement between the
Parties
and supersedes all prior verbal or written agreements or understandings
or
representations by or between the Parties
regarding the subject matter of this Agreement,
and the Parties
will not be entitled to rely, in any dispute regarding this Agreement,
on any terms, conditions or representations not expressly contained
in
this Agreement.
|
|
13.2
|
No
variation of or addition to this Agreement
will be of any force or effect unless reduced to writing and signed
by or
on behalf of the Parties.
|
|
13.3
|
Neither
party to this Agreement
has given any warranty or made any representation to the other party,
other than any warranty or representation that may be expressly set
out in
this
Agreement.
|
|
14.
|
RELAXATION
|
No
indulgence, leniency or extension of a right, which either of the Parties
may have in terms of this Agreement,
and which either party (“the grantor”) may grant or show to the other party,
shall in any way prejudice the grantor, or preclude the grantor from exercising
any of the rights that it has derived from this Agreement,
or be construed as a waiver by the grantor of that right.
| 15. |
WAIVER
|
No
waiver
on the part of either party to this Agreement of any rights
arising from a breach of any provision of this Agreement
will constitute
a
waiver of rights in respect of any subsequent breach of the same or any other
provision.
| 16. |
SEVERABILITY
|
In
the
event that any of the terms of this Agreement
are found to be invalid, unlawful or unenforceable, such terms will be severable
from the remaining terms, which will continue to be valid and
enforceable.
| 17. |
DRAFTING
COSTS
|
Each
of
the Parties shall bear its own cost incurred as a result of the negotiation,
drafting and finalisation of this Agreement, which shall include, but not be
limited to, all legal fees.
| 18. |
GOVERNING
LAW
|
The
validity and interpretation of this Agreement
will be governed by the laws of the Antigua and Barbuda.
I,
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, the undersigned, herewith confirm that my position within
“Action
Poker” is
that
of Director and state that I am duly authorized to enter into this
Agreement,
which I herewith do, on this the ______________
by
signing this
Agreement,
for and on behalf of “Action
Poker”.
Witnesses:
|
1
|
||
|
2
|
Signature
on behalf of Action Poker Gaming Inc.
|
|
I,
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, the undersigned, herewith confirm that my position within the
Mahjong Systems Limited is that of Director and state that I am duly authorized
to enter into this
Agreement,
which I herewith do,
on
this
the ________________
by
signing this
Agreement,
for and on behalf of the “MSL”.
Witnesses:
|
1
|
||
|
2
|
Signature
on behalf of MSL
|
Schedule
1
|
Revenue
Share, License Fees and Initial Float Amount
|
|
|
Initial
Float Amount
|
US$
*
|
|
First
Year Guarantee of License Fees, computed from the date of going
live for
play for money
|
US$
*
|
|
Revenue
Share
(share
of House Rake paid to partner)
|
*
|
*
The
confidential portion has been so omitted and filed separately with the
Commission.