AGREEMENT GOLDEN PALACE LIMITED and MAHJONG SYSTEMS LIMITED
Exhibit
4.10
AGREEMENT
GOLDEN
PALACE LIMITED
and
MAHJONG
SYSTEMS LIMITED
1
entered
into between:
GOLDEN
PALACE LIMITED
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.
2
RECITALS
WHEREAS "Golden
Palace Limited" and/or its subsidiaries (collectively "Golden
Palace")
operate
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 "Golden
Palace" 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, as well as any other “Golden
Palace” documentation and information which is designated as confidential
or proprietary, either verbally, by letter, stamp or legend, or
which
would be apparent to a reasonable person, familiar with the disclosing
party’s business or the industry in which it operates, that such
information is of a confidential or proprietary nature; and “MSL
Confidential Information” shall mean any documentation and information of
MSL which is designated as confidential or proprietary, either
verbally,
by letter, stamp or legend, or which would be apparent to a reasonable
person, familiar with the disclosing party’s business or the industry in
which it operates, that such information is of a confidential or
proprietary nature;
|
|
1.4
|
“Currency”
|
shall
mean (not limited to) United States Dollars or EUROs;
|
|
1.5
|
"Gross
Rake"
|
shall
mean “Golden Palace”’s proportionate share, in the Currency, of the amount
collected by “MSL” with respect to the Mahjong Games as a fee for its
services, in accordance with the rake schedule;
|
|
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 "Golden Palace"
as
recorded by the 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 "Golden Palace" and "MSL";
|
|
1.10
|
“Partners”
|
that
provide players and integrate with "MSL" in a manner similar to
that
contemplated in this agreement;
|
3
|
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 "Golden Palace",
as
adjusted from time to time, and held by "MSL" to cover possible
losses by
Players;
|
|
1.13
|
“Net
Rake”
|
shall
mean the Gross Rake minus any promotions, comps or bonuses mutually
agreed
to by the parties hereto granted by “Golden Palace” to Introduced
Players;
|
|
1.14
|
“Rake
Schedule”
|
shall mean the rake schedule attached hereto as Schedule 3 which sets out the gross rake collected by “MSL” as a fee for its services with respect to the Mahjong Games, which shall only be revised by “MSL” upon no less than thirty (30) days’ prior to written notice to “Golden Palace”; |
|
1.14
|
“Royalty”
|
shall
mean the amount payable by “Golden Palace” to “MSL” on a monthly basis, as
a fee for the license(s) granted by “MSL” to “Golden Palace” pursuant to
this Agreement, as set out and calculated in accordance with Schedule
1
attached hereto;
|
|
1.15
|
“Software”
|
shall
mean the object code versions of the computer software for the
Mahjong
Games and the user interface related thereto, along with any additions,
modifications, alterations, enhancements and upgrades
thereto;
|
|
1.16
|
“System”
|
shall
mean the Software and the Internet gaming server software required
to run
the Software;
|
| 1.17 | For the purposes of this Agreement, an “Affiliate” of a party hereto shall mean the parent corporation of the party, a wholly-owned subsidiary of the party or a wholly-owned subsidiary of the party’s parent corporation; | |
| 1.18 | Any reference to the singular includes the plural and vice versa; | |
| 1.189 | Any reference to natural persons includes legal persons and vice versa; | |
| 1.20 | Any reference to a gender includes other genders; | |
4
|
1.21
|
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
|
Except
as otherwise provided herein and, in particular, subject to the right
of
termination contained in Schedule 2 attached hereto, the Agreement
will
continue in force for a period of three (3) years calculated from
the
Commencement
Date
(Initial Term) 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 three-(3)-year term, by giving one
(1)
month's written notice.
|
|
2.3
|
Notwithstanding
the foregoing, “Golden
Palace”
shall be entitled to terminate this Agreement during the Initial
Term upon
one (1) month’s written notice to “MSL”
in
the event that “MSL”
delivers notice to “Golden
Palace” of
“MSL”’s
intention to revise the Rake Schedule and “Golden
Palace”
does not agree with the revisions and delivers its notice of termination
within one (1) month of receipt of “MSL”’s
Rake Schedule revision notice, in which the case the revisions to
the Rake
Schedule shall not apply with respect to “Golden
Palace”
or
the Introduced Players and the existing Rake Structure shall continue
to
apply until the effective termination date of this Agreement. “Golden
Palace”
shall not have the right to terminate this Agreement under this section
if
its authorized representative shall have previously provided “Golden
Palace”’s
written agreement to the revised Rake
Schedule.
|
|
3.
|
GRANT
OF LICENCE
|
|
3.1
|
Throughout
the term of this Agreement and subject to the terms and conditions
contained herein, MSL hereby grants to “Golden
Palace”
a
worldwide, non-exclusive, non-transferable license to use and to
grant to
Introduced Players the right to use the Software, and to distribute
and
transmit the Software to Introduced
Players.
|
5
|
3.2
|
Option
to Opt Out of Aggregation Server.
At any time during the term of this Agreement, “Golden
Palace”
shall have the option, in its sole and unfettered discretion and
upon
giving writing notice to “MSL”,
to
license the System in order to operate the System on its own server
and to
cease participating in Mahjong Games aggregated with other Partners.
Upon
such notice, “MSL”
shall deliver the System to “Golden
Palace”
and “MSL”
shall be deemed to have granted to “Golden
Palace”
a
worldwide, non-exclusive, non-transferable license to operate the
System
throughout the Term of this Agreement. In such case, all of the terms
of
this Agreement shall continue to apply except that there shall be
no Float
(and any Float Amount shall be immediately returned to “Golden
Palace”)
and no revenue sharing with other Partners. Further, “Golden
Palace”
shall be entitled to make modifications or enhancements to the System
provided they do not negatively affect the performance of the System,
and
any such modifications or enhancements shall be owned by “Golden
Palace”.
|
|
3.3
|
“Golden
Palace”
shall be permitted to sub-license the rights granted to it pursuant
to
this Agreement to any of its wholly-owned
subsidiaries.
|
|
4.
|
RIGHT
OF PARTICIPATION IN REVENUE
SHARING
|
|
4.1
|
The
Parties agree that other Partners may participate in revenue sharing
with
"MSL"
in
a similar manner to that contemplated in this Agreement.
|
5. RIGHT
AND OBLIGATIONS OF MSL
"MSL"
shall:
|
5.1
|
Have
the right to use third parties to perform any of these rights and
obligations, upon prior written notice to “Golden
Palace”;
|
| 5.2 |
Ensure
that it is legally authorized to provide the Mahjong
Games;
|
6
|
5.3
|
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;
|
|
5.4
|
Settle
all net differences between Partners on a monthly basis within thirty
(30)
days of the end of each month (the “Settlement Date”) by,
|
|
5.4.1
|
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;
|
|
5.4.2
|
in
the event that the Float is greater than the Float Amount, paying
the
Partner the excess amount;
|
|
5.5
|
Provide
monthly report of Float movements and provide real-time access to
financial and game information;
|
|
5.6
|
On
or before each monthly Settlement Date, “MSL”
will advise “Golden
Palace”
of the aggregate positive or negative Cross-Cage Flow to be added
to or
subtracted from its Float for the previous month. These amounts represent
the settlements among cages to reflect inter-cage activity. A negative
Cross-Cage flow represents a decrease in the overall funds of its
cage and
a positive Cross-Cage flow represents an increase in the overall
funds of
its cage;
|
|
5.7
|
Hold
the Float Amount in trust for "Golden
Palace"
in
a trust account segregated from any other funds, and return all amounts
that are not spent in the case of cancellation to "Golden
Palace";
|
|
5.8
|
Monitor
the Float Amount and inform "Golden
Palace"
if
it is insufficient for the current play
rate;
|
|
5.9
|
Keep
full and proper books of accounts and records showing clearly all
transactions relating to "MSL"'s
obligations in respect of this
Agreement;
|
7
|
5.10
|
Allow
any person authorized by "Golden
Palace"
to
have access at all reasonable times to "MSL"'s
premises for the purposes of inspecting the books and records pertaining
to “Golden
Palace”
and “MSL”
(which shall include but not be limited to all records and statements
pertaining to the account in which the Float is held), the System
database
and information pertaining to Mahjong Game play to the extent that
this is
necessary to ensure "Golden
Palace"’s
interests are being protected as provided for in this
Agreement;
|
|
5.11
|
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 "Golden
Palace"
support staff to provide player
support;
|
|
5.12
|
Implement,
provide and monitor systems 7/24 to prevent collusion and dumping
by
players of the Mahjong Games (“Collusion Tools”) which include but are not
limited to server side rating of play quality; update the Collusion
Tools
on an ongoing basis where appropriate; and provide “Golden
Palace”
with real-time reporting and access to the Collusion Tools and the
data
collected pursuant thereto;
|
|
5.13
|
Provide
support and service to "Golden
Palace"
for technical and software issues, in accordance with the Service
Level
Agreement attached hereto as Schedule
2;
|
|
5.14
|
Confirm
that "MSL"
has no right to communicate with, nor ownership of, Introduced Players
or
any personal information related thereto;
and
|
|
5.15
|
Reimburse
and indemnify and save “Golden
Palace”
harmless (either by way of credit against future Royalties or by
payment
by “MSL”
to “Golden
Palace”)
from and against any and all chargebacks or other losses or damages
incurred or suffered by “Golden
Palace”
which “Golden
Palace”
has reasonably concluded, using the Collusion Tools, to be as direct
result of intercage dumping or collusion between an Introduced Player
and
a non-Introduced Player.
|
8
| 6. |
MSL
REPRESENTATIONS AND
WARRANTIES
|
“MSL”
hereby
represents and warrants that:
|
6.1
|
it
or its Affiliates owns all right, title and interest in and to the
Software and the System;
|
| 6.2 |
that
it has the necessary capacity and authority to enter into this Agreement
and the sufficient rights and authority to grant to “Golden Palace” the
licenses contemplated by this
Agreement;
|
| 6.3 |
that
the Software and the System are free of defects and shall perform
as
intended and as represented to “Golden
Palace”.
|
| 7. |
RIGHTS
AND OBLIGATIONS OF "GOLDEN
PALACE"
|
"Golden
Palace"
shall:
|
7.1
|
Promote
the Mahjong Games and be responsible for all associated
costs;
|
|
7.2
|
Not
bring "MSL"
into disrepute by marketing or selling the Mahjong Games in any fashion
deemed to be illegal or
undesirable;
|
|
7.3
|
Use
best endeavors to ensure that its activities do not violate the laws
of
any country;
|
|
7.4
|
Inform
"MSL"
as
soon as possible of any legal difficulties that are encountered in
respect
of the promotion of the Mahjong
Games;
|
|
7.5
|
Be
responsible for all costs incurred by "Golden
Palace "
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
System;
|
9
|
7.6
|
Be
responsible for and bear all costs with relation to the player
relationship including:
|
|
7.6.1
|
Acquiring
funds into players’ accounts that may be subsequently used for the Mahjong
Game,
|
| 7.6.2 |
Providing
customer support to players,
|
| 7.6.3 |
Settlement
of player withdrawals,
|
|
7.6.4
|
Managing
and funding where necessary any shortfalls through charge backs or
fraud,
|
|
7.6.5
|
Provision
of all software and hardware systems associated with the player
relationship;
|
| 7.7 |
Pay
an initial License Fee as per Schedule
1;
|
|
7.8
|
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.
|
|
7.9
|
Not
enter into agreement, offer or implement the game of Mahjong with
any
other software provider during the Initial Term, save and except
for the
skill-based version of Mahjong currently offered by “Golden
Palace”
pursuant to an existing license agreement with SkillJam Technologies
Corporation.
|
| 8. |
INTELLECTUAL
PROPERTY RIGHTS
|
|
8.1
|
"Golden
Palace"
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;
|
10
|
8.2
|
"MSL"
shall not acquire any right, title or interest in any copyright or
other
intellectual property rights in "Golden
Palace"’s
trademarks, trade names, copyrights and other rights used or embodied
in
or in connection with its
activities.
|
| 9. |
VALIDITY
|
|
9.1
|
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.
|
| 10. |
CONFIDENTIALITY
|
|
10.1
|
"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.
|
|
10.2
|
"Golden
Palace"
shall have full rights to and access to the Confidential
Information.
|
|
10.3
|
MSL
shall prevent disclosure of the Confidential
Information,
except as may be required by law, in which case MSL shall give at
least
ten (10) days prior written notice to “Golden Palace” of the required
disclosure.
|
|
10.4
|
"MSL"
shall ensure that each staff member or external party having access
to
Confidential Information is bound by individual non-disclosure
agreements.
|
|
10.5
|
“Golden
Palace”
shall hold in confidence all MSL Confidential Information received
and not
divulge same to any person, including any of its personnel, save
for
parties directly involved with the execution of this Agreement.
“Golden
Palace”
shall prevent disclosure of the MSL Confidential Information it receives,
except as may be required by law, in which case “Golden
Palace”
shall give at least ten (10) days prior notice to “MSL”
of
the required disclosure.
|
|
10.6
|
“Golden
Palace”
shall ensure that each staff member or external party having access
to MSL
Confidential Information is bound by individual non-disclosure
agreements.
|
| 11. |
TERMINATION
OF AGREEMENT
|
|
11.1
|
This
Agreement may be terminated with immediate effect by "MSL"
in
the event of "Golden
Palace"
not complying with the "MSL"
requirements in terms of clause 7.2. This clause shall not be unreasonably
invoked.
|
|
11.2
|
Each
party may terminate this Agreement by written notice to the other
Party in
accordance with clause 2.2 after the Initial
Term.
|
|
11.3
|
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.
|
| 11.4 |
Either
Party may terminate this Agreement immediately and without notice
if:
|
| 11.4.1 |
the
other enters into a composition with its
creditors;
|
| 11.4.2 |
an
order is made for the winding up of the
other;
|
|
11.4.3
|
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
|
|
11.4.5
|
the
other has a receiver, manager, administrative receiver or administrator
appointed in respect of it.
|
11
| 11.5 |
Effect
of Termination
|
The
termination of the Agreement, for whatever reason, shall not affect the rights
of either of the parties:
| 11.5.1 |
that
may have accrued before the termination of the Agreement;
or
|
| 11.5.2 |
which
specifically or by their nature survive the termination of the
Agreement.
|
|
11.6
|
On
termination, "MSL"
will provide to "Golden
Palace",
all copies of the Confidential Information in
its possession and shall not retain the Confidential Information
in any
form whatsoever, except where required by law or order of any tribunal
of
competent jurisdiction.
|
|
11.7
|
"MSL"
shall destroy all copies of Confidential Information relating to
"Golden
Palace"
once it is no longer required to be
kept.
|
|
11.8
|
The
provisions of sections 11.6 and 11.7 hereinabove shall apply
mutatis
mutandis
to
“Golden
Palace”
in
respect of MSL Confidential
Information.
|
| 12. |
DOMICILIUM
|
The
Parties elect the following addresses as their respective domicilium
citandi et executandi:
| 12.1 |
"Golden
Palace":
|
Golden
Palace Limited
▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇.▇.
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
St.
▇▇▇▇▇, Antigua
12
| 12.2 |
"MSL":
|
Mahjong
Systems Limited
Britannic
House
Providenciales
Turks
and
Caicos Islands
B.W.I
|
12.3
|
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.
|
| 13. |
NOTICES
|
The
Parties elect the following addresses at which all notices and other
communications must be delivered for the purposes of this Agreement:
| 13.1 |
"Golden
Palace":
|
| 13.1.1 |
By
hand at:
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇.▇.
▇▇▇
▇▇▇▇▇
Old
▇▇▇▇▇▇ Road
St.
▇▇▇▇▇, Antigua
For
the
attention of: ▇▇▇▇▇▇▇
▇▇▇▇
| 13.1.2 |
With
a copy to:
|
Cyber
World Group
▇▇▇▇
▇▇▇▇
▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇
▇▇▇
▇▇▇
For
the
attention of: ▇▇▇▇▇ ▇▇▇▇▇, CEO
| 13.2 |
"MSL":
|
| 13.2.1 |
By
hand at:
|
Brittanic
House, Providenciales
Turks
and
Caicos Islands, B.W.I.
For
the
attention of: The
President
| 13.2.2 |
With
a copy to:
|
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇
For
the
attention of: ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
13
|
13.3
|
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.
|
|
13.4
|
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.
|
|
13.5
|
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:
|
|
13.5.1
|
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;
|
|
13.5.2
|
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.
|
| 14. |
FORCE
MAJEURE
|
|
14.1
|
Neither
of the Parties shall be liable for a failure to perform any of its
obligations insofar as it proves:
|
|
14.1.1
|
that
the failure was due to an impediment beyond its
control;
|
|
14.1.2
|
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
|
|
14.1.3
|
that
it could not reasonably have avoided or overcome the impediment or
at
least its effects.
|
14
|
14.2
|
An
impediment, as aforesaid, may result from events such as the following,
this enumeration not being
exhaustive:
|
|
14.2.1
|
war,
whether declared or not, civil war, civil violence, riots
and
|
revolutions,
acts of sabotage;
|
14.2.2
|
natural
disasters such as violent storms, cyclones, earthquakes, tidal waves,
floods, destruction by lightning;
|
|
14.2.3
|
explosions,
fires, destruction of machines, factories and any kind of
installations;
|
|
14.2.4
|
boycotts,
strikes and lockouts of all kinds, go-slows, occupation of factories
and
premises and work stoppages;
|
|
14.2.5
|
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.
|
|
14.3
|
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.
|
|
14.4
|
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.
|
15
|
15.
|
ENTIRE
AGREEMENT AND VARIATIONS
|
|
15.1
|
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.
|
|
15.2
|
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.
|
|
15.3
|
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.
|
| 16. |
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.
| 17. |
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.
| 18. |
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.
| 19. |
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.
| 20. |
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
"MSL"
undertakes and agrees, upon payment of the initial licensing fee provided for
in
Schedule 1 hereof, to transfer to “Golden
Palace”
forthwith the proprietary rights to the URL domain names "▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇",
“▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇” ,
as well
as derivatives thereof including any other URL domain names owned by “MSL” or
any of its Affiliates which contain “golden” and/or “palace”, and to sign any
and all further deeds and/or documents necessary in order to give effect to
the
foregoing forthwith.
| 21. |
GOVERNING
LAW
|
The
validity and interpretation of this Agreement
will be governed by the laws of Antigua.
| 22. |
ASSIGNMENT/TRANSFER
|
|
Either
party shall be entitled to assign or transfer to its Affiliates its
rights
and obligations pursuant to this Agreement upon written notice to
the
other party hereto. A transfer or assignment other than to an Affiliate
shall require prior written notice to the other party hereto, along
with a
written acknoweldgement by the transferee / assignee that they agree
to be
bound by the terms and conditions of this
Agreement.
|
16
I,
▇▇▇▇▇▇▇ ▇▇▇▇, the undersigned, herewith confirm that my position within
"Golden
Palace"
is that
of Chief Executive Officer 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 "Golden
Palace".
Witnesses:
|
1
|
||
|
2
|
Signature
on behalf of Golden Palace Limited
|
|
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 Mahjong Systems
Limited
|
17
Schedule
1
|
Revenue
Share, License Fees and Initial Float Amount (All Dollar amounts
in US
Dollars)
|
|
|
Initial
Float Amount (payable upon launch of the service)
|
US$
*
|
|
Initial
Licensing Fee of US $*,
payable upon launch of the service, which shall be an advance against
Royalties due and owing by “Golden Palace” pursuant to this
Agreement
|
US$
*
|
For
the
purpose of this Schedule 1, “launch of the service” shall have occurred when the
Mahjong Games are made available to the public for real money play, but in
no
case later than thirty (30) days after “Golden Palace” has confirmed, in writing
and in its discretion, that the System integration testing is complete and
acceptable to “Golden Palace”.
|
Monthly
Net Rake (USD)
|
|
Royalty
|
|
on
the first *
-
*
|
|
$*
USD
or * %
(which ever is less), with a minimum monthly Royalty of
$*
|
|
on
the next * -
*
|
|
* %
|
|
on
the next * -
*
|
|
*
%
|
|
*and
over (no cap)
|
|
*
%
|
For
Examples:
-
For
monthly Net Rake of $*,
Royalty
is ($*x
*%)
$*
-
For
monthly Net Rake of $*,
Royalty
is $*
-
For
monthly Net Rake of $*,
Royalty
is $*
-
For
monthly Net Rake of $*,
Royalty
is ($*+
$*)
$*
.
*
The
confidential portion has been so omitted and filed separately with the
Commission.
18
Schedule
2 - Service Level Agreement
Production
Problem Response
For
the
purposes of this Agreement, Production Problems with the MSL System are defined
as problems that disrupt Introduced Players' normal ability to use the
System for real money gaming and/or disrupt the ability of “Golden
Palace”
Customer Service Staff to support Introduced Players’ ability to play the
Mahjong Games.
Production
Problems are further segregated into two categories: Severity 1 Production
Problems and Severity 2 Production Problems.
Severity
1 Production Problems:
Production
Problems which effect one hundred (100) or more Introduced Players shall be
designated as Severity 1 Production Problems. MSL will ensure that it has
technical support resources available on a 24 hour-a-day 7 day-a-week basis
to
respond to Severity 1 Production Problems. MSL will provide and
maintain a list of "on call" resources to “Golden
Palace”.
MSL
will provide telephone numbers or equivalent (pager numbers) to “Golden
Palace”
for
use
in contacting both the on-call MSL Technical Resource and
the on-call MSL Manager. MSL warrants that it will respond to a
Severity 1 Production Problem notification within 15 minutes. Further MSL
warrants that it will implement automatic escalation to the on-call manager
in
the event that the on-call technical resource fails to respond within the
warranted 15 minute period. MSL warrants that it will assign and manage all
of
its personnel to resolve Severity 1 Production Problems. MSL will provide
“Golden
Palace”
with
a
written detailed post-mortem review of all Severity 1 Production Problems with
descriptions of the problem symptoms, causes, corrective actions and remedial
actions to prevent future occurrence.
Severity
2 Production Problems:
Production
Problems which effect less than one hundred (100) players are defined as
Severity 2 Production Problems. MSL will provide “Golden
Palace”
with
a
mechanism to notify MSL of the existence of Severity 2 Production Problems
in
writing. MSL warrants that it will acknowledge receipt of a Severity 2
Production Problem within 8 hours of “Golden
Palace”
notification. MSL warrants that it will notify “Golden
Palace”
of
its
plan for corrective action within 24 hours of receipt of “Golden
Palace”
notification. It is understood by both parties that such plan may involve
additional data collection by both parties. MSL warrants that it will use
it best efforts to resolve Severity 2 Production Problems within 7 days of
notification by “Golden
Palace”.
MSL
will provide “Golden
Palace”
management with a written detailed post-mortem review of all Severity 2
Production Problems with descriptions of the problem symptoms, causes,
corrective actions and remedial actions to prevent future
occurrence.
Qualified
Service Interruptions
A
“Service Interruption” is an unscheduled event caused by defect(s) in the
Software, the System and/or the action(s) of MSL personnel (“Internal Factors”)
that disrupt the Mahjong Game play of more than one hundred (100) Introduced
Players for a period of time lasting more than thirty (30) seconds. For purposes
of this provision, Mahjong Game play includes the ability: to login to the
Mahjong Game room; to take a seat at a table; and/or to play the Mahjong Game.
In determining the number of Service Interruptions, the following are each
considered part of the initial Service Interruption: degradation in service
immediately following a response to a Service Interruption; or subsequent
outages within a 4 hour period if they are a direct result of the initial
Service Interruption or the response to the initial Service Interruption.
Scheduled events that do not constitute a Service Interruption include any
properly notified scheduled maintenance event or Upgrade implementation.
Disruptions caused by other than Internal Factors (“External Disruptions”) are
not Service Interruptions and an emergency maintenance event in response to
an
External Disruption shall also not be deemed a Service Interruption. Whether
or
not included as a Service Interruption, all operational incidents will be
documented by MSL.
A
“Qualified Service Interruption” is a Service Interruption that has been
reported and qualified in accordance with this Schedule 2. Regardless of when
it
is determined that a Service Interruption qualifies as a Qualified Service
Interruption, the date of the interruption is always the calendar date of the
earliest disruption giving rise to the Service Interruption. “Golden Palace”
shall notify MSL in writing within 5 days of a suspected Service Interruption,
which notice shall be accompanied by supporting data of qualification such
as
logs, statistics or reports that indicate the event occurred and was of the
duration and severity that qualifies it as a Service Interruption. If MSL does
not dispute such notice within 5 days, then the noticed Service Interruption
shall constitute a Qualified Service Interruption. If MSL timely gives notice
of
dispute, then management of MSL and “Golden Palace” shall first seek to resolve
such dispute through negotiation and, if negotiation is unsuccessful, the
dispute shall be settled by arbitration, each party being required to submit
supporting data to the arbitrator(s). Any data presented by one party and not
contested by data presented by the other party shall be deemed accurate by
the
arbitrator(s), provided that each party must provide the other party and the
arbitrator(s) with data as requested by the other party and the arbitrator(s)
to
the extent such requested data is reasonably available. The arbitrator(s),
based
upon the evidence submitted in accordance with this section shall determine
whether or not a Service Interruption occurred that is not the subject of a
prior Qualified Service Interruption. If the arbitrator(s) determine that a
unique Service Interruption occurred, then such Service Interruption shall
be
deemed a Qualified Service Interruption.
In
the
event that there are between 2 and 5 Qualified Service Interruptions in a
calendar month, then the penalty for such Qualified Service Interruptions shall
be that the Royalty for such month shall be calculated by excluding
“Golden
Palace”’s
Net
Rake for each day in which any Qualified Service Interruption occurred.
Accordingly, there is no penalty for the first Qualified Service Interruption
in
a month and if two or more Qualified Service Interruptions occurred in the
same
day, only that one day will be excluded pursuant to this section.
In
the
event that there are more than 5 Qualified Service Interruptions in a calendar
month, then the penalty for such Qualified Service Interruptions shall be that
the Royalty for such month shall be calculated on the basis of 50% of
“Golden
Palace”’s
Net
Rake for such month.
In
the
event that there are two consecutive calendar months each with more than 5
Qualified Service Interruptions, then “Golden
Palace”
shall
be entitled to terminate this Software Licensing Agreement immediately without
notice.
The
parties will attempt to resolve any issues concerning the existence of a
Qualified Service Interruption within the calendar month during which the
Service Interruption is alleged to have occurred.
19
Schedule
3 - Rake Schedule
*
% ofthe payment made to the winning player by the losing players.
*
The confidential portion has been so omitted and filed
separatley with the Commission.