DATED 2005 ORBIS TECHNOLOGY LIMITED and Mahjong Systems Limited PARTNER AGREEMENT
Exhibit
4.7
DATED
2005
ORBIS
TECHNOLOGY LIMITED
and
Mahjong
Systems Limited
____________________________________________________________
____________________________________________________________
1
This
Partner Agreement (the "Agreement") is made to be effective, 5th
Octuber
2005
(the "Effective Date") by and between ORBIS
TECHNOLOGY LIMITED
("ORBIS"), a company incorporated in England and Wales with offices located
at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, United Kingdom which expression
shall include its Affiliates and MAHJONG
SYSTEMS LIMITED (“MSL), a
company
incorporated in the Turks and Caicos Islands with offices located at Britannic
House, Providenciales, Turks and Caicos Islands, B.W.I.,
R
E C I T A L S
A. ORBIS
is
a leading supplier of software used by the gaming industry for the purposes
of
interactive gambling.
B.
MSL is
engaged in supplying and hosting multiplayer Mahjong games
C. MSL
wish
to use the API gateways provided by Orbis, to connect the Products to the
OpenBet software licensed to the Customers, subject to the terms set out
below
NOW,
THEREFORE, in consideration of the mutual promises and covenants set forth
below, ▇▇▇▇▇ and MSL agree as follows:
1. DEFINITIONS
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1.1
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Definitions.
For purposes of this Agreement, all capitalized terms shall have
the
respective meanings set forth below or as elsewhere defined in this
Agreement:
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“Affiliate”
shall
mean the holding company of a party or a subsidiary of a party or a subsidiary
of that party’s holding company. “Holding company” shall mean a company with
control of a party and “subsidiary” shall mean any company that is under the
control of a party or the holding company of a party.
“Customers”
any
existing or future customers of ORBIS, that licence the Products.
“Intellectual
Property Rights” or “IPR”
means
any patent, registered design, copyright, design right, topography right, trade
mark, service mark, application to register any such rights, rights in the
nature of any of the aforementioned rights, trade secrets, rights in
not-patented know-how, right of confidence and any other intellectual or
industrial property rights of any kind whatsoever in any part of the
world.
“Net
Revenue”
shall
mean the total revenues received by MSL from Customer for the Product less;
(i)
any tax or duty assessed directly on sales; and (ii) where such items are
specially shown on the invoice, purchase, sales, import, value added or
consumption tax or duty, packing expenses, transportation, freight and insurance
charges; (iii) discounts, where no other benefit, whether direct or indirect,
is
obtained by MSL as a result of such discount; and (iv) any integration cost
or
initial license fee charged by MSL.
“Product(s)”
means
the software applications that have been or are to be developed by [ ] that
will
connect to the OpenBet software licensed to the Customer by ORBIS, via the
API
gateways as agreed to by ORBIS.
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1.2
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Rules
of Construction.
As
used in this Agreement, (i) neutral pronouns and any derivations
thereof shall be deemed to include the feminine and masculine and
all
terms used in the singular shall be deemed to include the plural
and vice
versa, as the context may require; (ii) the words “hereof” and
“hereunder” and other words of similar import refer to this Agreement as a
whole, including all exhibits and schedules as the same may be from
time
to time amended or supplemented and not to any subdivision of this
Agreement; (iii) the words “party” and “parties” refer, respectively,
to a party or to both of the parties to this Agreement; (iv) the word
“including” is not intended to be exclusive and means “including without
limitation”; (v) references to section, subsection, attachment or
exhibit refer to the appropriate section, subsection, attachment
or
exhibit in or to this Agreement; and (vi) descriptive headings are
inserted for convenience of reference only and do not constitute
a part of
and shall not be utilized in interpreting this Agreement. This Agreement
shall be fairly interpreted in accordance with its terms and without
any
strict construction in favor of or against either party. No third
party
shall have any rights to enforce any provisions of this
Agreement.
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2. DOCUMENTATION
ORBIS
agree to provide to MSL documentation on the agreed API gateways and shall
be
entitled to use the API gateway for so long as the Net Revenue is paid to
ORBIS.
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3.
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REVENUE
SHARE.
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| 3.1 |
In
consideration of ORBIS providing assistance in the use of the API
gateway
and connection to OpenBet, MSL agrees to pay to ORBIS *%
(*)
of the Net Revenue. MSL shall keep full records of all income received
relating to the Net Revenue and submit to ORBIS at the end of each
month a
statement identifying the total sums payable to ORBIS. Payment
shall be
due within 30 (thirty) days of month end.
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3.2
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ORBIS
shall have the right to carry out audits through a suitably qualified
auditor selected by ▇▇▇▇▇. Should there be a discrepancy between
actual
and reported Net Revenue greater than 2% then ORBIS shall not only
be able
to recover the sums outstanding together with interest, but in addition
MSL shall indemnify ORBIS for the auditors costs.
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3.3
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Late
payments shall be subject to interest from the date when payment
ought to
have been made until the date of actual receipt of payment. The right
to
receive payment shall survive termination (howsoever arising) or
expiry of
the term, continuing for so long as the Net Revenue accrues to MSL.
Interest shall accrue daily and be payable on late payments, irrespective
of receipt of invoice from ORBIS, at the rate of 7% per annum above
the
base interest lending rate applicable at that time at HSBC Bank plc.,
London, until actual receipt of cleared funds by the nominated ORBIS
bank
account.
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*
The
confidential portion has been so omitted and filed separately with the
Commission.
2
4 OWNERSHIP OF
INTELLECTUAL PROPERTY RIGHTS
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4.1
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Nothing
in this Agreement shall be effective so as to transfer or assign
ownership
of any IPR owned by a party at the commencement of this Agreement
nor
anything developed or improved by a party in the course of this Agreement.
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5 TERM
AND TERMINATION
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5.1
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Term.
This Agreement shall commence upon signing by both parties for a
period of
two years (the “Initial Term”) and shall continue thereafter unless
terminated by one party to the other giving not less than 60 (sixty)
days
notice expiring no earlier than the end of the Initial
Term.
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5.2
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Termination
for Cause. If
either party materially breaches a material provision of this Agreement
and fails to correct such breach within 90 (ninety) days following
written
notice specifying in detail the nature of the breach, or fails to
commence
to correct the breach within such 90 (ninety) day period if the breach
cannot reasonably be cured within 90 (ninety) days and thereafter
fails to
make good faith efforts to remedy such breach, then the non-defaulting
party may terminate this Agreement, upon written notice of termination
to
the defaulting party.
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5.3
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Survival
of Provisions. Notwithstanding
any termination of this Agreement, the parties’ rights and obligations
under clauses 3, 4, 7, 8.2 and 8.7 shall survive any expiration or
termination of this Agreement.
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6 REPRESENTATION
AND WARRANTIES
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6.1
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No
Conflict. Each
party warrants to the other party that it is not restricted in any
way
from entering into this Agreement and has the right to grant the
licenses
to the other party as set forth in this
Agreement.
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6.2
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Warranty
Disclaimers.
The parties expressly disclaim all express, statutory and/or implied
warranties, including without limitation the warranties of
merchantability, fitness for a particular purpose and non-infringement.
Neither party makes any warranties that materials supplied to the
other
under this Agreement (excluding financial reporting information)
will be
error-free, and each party hereby disclaims any and all liability
on
account thereof.
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7 CONFIDENTIAL
INFORMATION
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7.1
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Definition.
For purposes of this Agreement “Confidential Information” shall mean
information including, without limitation, this Agreement and the
terms
hereof, computer programs, code, Betas, algorithms, names and expertise
of
employees and consultants, know-how, formulas, processes, ideas,
inventions (whether patentable or not), schematics and other technical,
business, financial and product development plans, forecasts, strategies
and information marked “Confidential” or, if disclosed verbally,
identified as confidential in writing prior or subsequent to such
verbal
disclosure.
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7.2
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Confidentiality
Obligations.
Each party agrees to maintain all Confidential Information in confidence
to the same extent that it protects its own confidential information
but
in no event less than reasonable care and to use such Confidential
Information only as permitted under this Agreement. The Recipient
agrees
to disclose Confidential Information only to its employees, Affiliates,
attorneys, bankers, financial advisors and independent contractors
(a)
with a need to know to further permitted uses of such Confidential
Information as provided in this Agreement, (b) who are parties to
appropriate written agreements sufficient to comply with this clause,
and
(c) who are informed of the nondisclosure/non-use obligations imposed
by this clause.
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3
8 MISCELLANEOUS
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8.1
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Legal
Fees and Expenses. Each
party will pay its own fees and expenses, including without limitation
legal fees and other expenses in connection with the transactions
contemplated under this Agreement.
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8.2
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No
Consequential Damages.
To
the maximum extent permitted under applicable law, in no event shall
either party be liable to the other under this agreement for any
indirect
or incidental or special or exemplary or punitive or consequential
damages
or for any loss of profits or loss of revenue, or loss of data, or
loss of
goodwill or work stoppage, computer failure or malfunction, incurred
by
either party or any third party, regardless of the form of action,
even if
the other party or any other person has been advised of the possibility
of
such damages.
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8.3
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Severability,
Waiver.
In
the event any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions of this Agreement will remain
in
full force and effect. The waiver by either party of any default
or breach
of this Agreement shall not constitute a waiver of any other or subsequent
default or breach.
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8.4
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Relationship
of the Parties.
No
agency, partnership, joint venture, or employment relationship is
created
as a result of this Agreement and neither party have any authority
of any
kind to bind the other party in any respect
whatsoever.
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8.5
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Governing
Law.
This Agreement shall be governed by and construed in accordance with
the
laws of England. Any dispute regarding this Agreement shall be subject
to
the exclusive jurisdiction of the English courts, and the parties
agree to
submit to the personal and exclusive jurisdiction and venue of these
courts.
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8.6
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Force
Majeure.
Neither party shall be liable to the other for failure or delay in
the
performance of a required obligation if such failure or delay is
caused by
strike, riot, fire, flood, natural disaster, or other similar cause
beyond
such party's control, provided that such party gives prompt written
notice
of such condition and resumes its performance as soon as possible,
and
provided further that the other party may terminate this Agreement
if such
condition continues for a period of 60 (sixty) days.
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8.7
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Entire
Agreement.
This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof and supersedes all prior or
contemporaneous proposals and agreements whether oral or written,
and all
communications between the parties relating to the subject matter
of this
Agreement and all past courses of dealing or industry custom. This
Agreement may not be modified or amended except in writing signed
by an
authorized representative of each party; no other act, document,
usage or
custom shall be deemed to amend or modify this Agreement. If any
ambiguity
or conflict exists between the terms of this Agreement and the terms
of
any Exhibit hereto, the terms of this Agreement shall prevail and
shall be
conclusively determined to reflect the intention of the parties with
respect to the relevant issues. Neither party hereto shall be bound
by any
definition, condition, warranty, representation, modification, consent
or
waiver other than as expressly stated in this Agreement unless set
forth
in writing executed by the party to be bound.
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8.8
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Notices.
Any notice, request, demand, or other communication required or permitted
hereunder shall be in writing and shall be given by courier or other
personal delivery, or by a recognized overnight courier for next
day or
two day delivery. Notices shall be sent to the parties at the addresses
set forth on the first page hereof to the following persons: (i)
for
ORBIS: ▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇, VP & General Counsel (FAX: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇);
and (ii) for MSL : ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Director (FAX: ▇▇ ▇▇▇ ▇▇▇
▇▇▇▇ (or
any other persons or address as the parties may from time to time
designate in a writing delivered pursuant to this sub-clause 10.12
(“Notices”). Notices shall be deemed to have been given when received as
evidenced by a courier receipt.
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4
IN
WITNESS WHEREOF,
as of
the Effective Date, an authorized representative of each party has duly executed
this Agreement.
SIGNED
for and on behalf of SIGNED
for and on behalf of
ORBIS
TECHNOLOGY LIMITED MSL
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_________________________________________________________
Signed:
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________________________________________________________
Signed
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_________________________________________________________________
Name
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________________________________________________________________
Name
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_________________________________________________________________
Title
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________________________________________________________________
Title
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