EXHIBIT 10.6
EXCLUSIVE DISTRIBUTORSHIP AGREEMENT
This Exclusive Distribution Agreement ("AGREEMENT") is made as of July
1, 2002, by and between VirtGame Corp., a Delaware corporation ("VIRTGAME") and
Las Vegas Dissemination, Inc., a Nevada corporation doing business as Las Vegas
Dissemination Company ("DISTRIBUTOR").
WHEREAS, VirtGame is in the process of developing, and has
been marketing, ail in-house race and sports book system (currently referred to
as PrimeLineRaceBook and PrimeLine Sports Book and collectively, the "RACE &
SPORTS SYSTEM") as well as ancillary and additional products (I.E., VirtgameSP,
VirtBorderControl, VirtCasino, VirtLottery) (collectively, the Race & Sports
System and other products shall be referred to as the "PRODUCTS");
WHEREAS, Distributor provides pari-mutuel race hub services
and markets equipment and/or products to its customers in certain marketplaces
that are core to its business (the "TERRITORY"), as more completely set forth in
SCHEDULE B hereto and incorporated herein by this reference;
WHEREAS, Distributor has expertise in race and sports book
system design, and a vast network of customers that could become customers of
the Products;
WHEREAS, VirtGame and Distributor are desirous of entering
into an exclusive distributorship agreement for Distributor to exclusively
market the Race and Sports System and for VirtGame to license the same, on a
non-exclusive basis, to Distributor's present and prospective customers
(collectively, the "CUSTOMERS") and for the Territory, upon the terms and
conditions set forth herein;
WHEREAS, VirtGame further desires to compensate Distributor
based on sales and licensing of other Products to Customers;
NOW, THEREFORE, for and in consideration of the mutual
promises made hereafter and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties herein
agree as follows:
1. DISTRIBUTOR APPOINTMENT. Upon the following tern-is and conditions,
VirtGame hereby appoints Distributor as its exclusive distributor in the
Territory for the Race and Sports System during the therein hereof. VirtGame
shall not market or sell the Race and Sports System in
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the Territory (except as approved by Distributor), nor shall VirtGame
intentionally or negligently enable any third party distributor to market or
sell the Race and Sports System in the Territory, during the term hereof
VirtGame also hereby permits Distributor to market and promote its other
Products, on a non-exclusive basis, to Customers.
2. DISTRIBUTOR RESPONSIBILITIES. During the term of' this Agreement,
Distributor shall do the following:
2.1 Hold in the strictest confidence during the term of this
Agreement and at all times thereafter any and all information of a confidential
nature obtained regarding VirtGame's business or affairs, including, but not
limited to, customer lists and data regarding the design and/or methods of
manufacture of VirtGame's Products, and not to disclose in any manner directly
or indirectly such information to any entity, person, partnership or corporation
(which obligation shall survive termination of this Agreement) except as
required by law or court order, or as may be provided to a third party
consultant in an effort to adapt the Products to Distributor's service or system
(any such disclosure to a third party shall only be after said third party has
entered into a confidentiality agreement in substantial conformity to the form
document attached hereto as Schedule C and incorporated herein by this
reference, except for the changes needed to make sure that the form correctly
reflects the true nature of the anticipated relationship between the underlying
consultant and Distributor and/or VirtGame). In the event any party receives a
request to disclose any Confidential Information under the terms of a valid and
effective subpoena or order issued by a court of competent jurisdiction or a
governmental body, such party shall (i) immediately notify the party that
furnished such Confidential Information of the existence terms and circumstances
surrounding such request, (ii) consult with such party on the advisability of
taking legally available steps to resist or narrow such request, and (iii)
exercise reasonable best efforts, at the expense of the party subject to a
request to produce Such Confidential Information, to obtain an order or other
reliable assurance that confidential treatment will be accorded to such portion
of the Confidential Information as may be disclosed.
2.2 Use its reasonable efforts to assist VirtGame in
completion of the Race & Sports System, including technical, software, and race
book managerial advice on the best methods for completing and refining the Race
& Sports System.
2.3 Use its reasonable efforts to actively market and promote
the nonexclusive licensing of the Race & Sports System to Customers in the
Territory as well as to promote their use of the other Products. To this end,
Distributor shall provide monthly summaries of the operators contacted and the
progress of any negotiations.
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2.4 Use its reasonable efforts to maintain an adequate sales
organization and to provide for adequate assistance to customers that acquire
the Race and Sports System.
2.5 Use its reasonable efforts to maintain an adequate
technical staff and to provide for adequate maintenance of the Race and Sports
System hardware and assistance to customers that acquire the Race and Sports
System (Distributor shall not have any maintenance obligation for Products other
than the Race & Sports System).
2.6 Maintain at all times adequate service and repair
facilities for the Race and Sports System, including spare parts, all as agreed
to by VirtGame and Distributor.
2.7 Use its reasonable efforts to assist VirtGame's
representatives with regard to the Territory and how to expand VirtGame's share
of the marketplace for the Products in the Territory.
3. VIRTGAME RESPONSIBILITIES. During the term of this Agreement,
VirtGame shall do the following:
3.1 Complete the Race & Sports System, with consultation and
assistance from Distributor, in as expeditious a -fashion as possible. In
performing this obligation, VirtGame shall employ adequate staff and devote
significant time to completing, the race book portion of the system, enabling
the system to communicate with a variety of terminals currently in use in the
Territory, and refining the Race and Sports System capabilities and management
screens in a mariner worked out with Distributor to reflect the demands of the
potential Customers.
3.2 License the Products as follows:
3.2.1 one copy of each Product requested by
Distributor to Distributor at no charge to be used by Distributor to market the
Products to Customers; and
3.2.2 to Customer(s), in connection with VirtGame
(and/or Distributor in the case of Race & Sports System) entering into an
agreement with said Customer(s), at a fee structure in accordance with Schedule
A hereto.
3.3 Deliver to Distributor any Products that are validly
licensed to Customers and/or Distributor pursuant to the terms of this Agreement
that Distributor is required to install or maintain in as expeditious a time
frame as is reasonable given current circumstances at VirtGame.
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3.4 Provide Distributor with accurate, up-to-date, and
comprehensive marketing brochures and operating manuals related to the Products,
and assist Distributor, at the request of Distributor, with any regulatory
approval that may be required within the Territory.
3.5 Upon request from Distributor, provide training for
Distributor's personnel relating to the operation and maintenance of the
Products. At no cost to Distributor, VirtGame shall provide training and
assistance to Distributor's technical and marketing personnel upon completion of
the Race & Sports System and during the first installation of tile Products to a
Customer. Additionally, Distributor shall have the right to have VirtGame
provide training to Distributor's personnel, upon Distributor's request and at
no charge, during the term hereof.
3.6 Upon the request of Distributor, cooperate with any
jurisdictional gaming, racing, or vendor licensing that Distributor shall be
required to obtain related to the Products in any portion of the Territory.
3.7 Upon the request of Distributor, diligently provide
upgrades and/or modifications to the Products that are being requested by
Customers. The Distributor shall receive from VirtGame the Products in their
most updated and complete form. As VirtGame develops advancements to the
Products and makes those advancements available to its customers, all said
advancements shall be made available to Distributor for its Customers at no
additional cost (but subject to the revenue distribution in Schedule A).
3.8 Use its reasonable efforts to enable any products
developed by or for Distributor to be made compatible with the Race & Sports
System or other Products.
4. PAYMENT TERMS; SECURITY INTEREST; RESALE. All fees for the Products
set forth in SCHEDULE A hereto or otherwise shall be based on a net thirty (30)
days from the date of receipt by VirtGame and/or Distributor as the collector
for VirtGame of payment from a Customer, Any fee payments due and payable from
VirtGame to Distributor and not paid within ten (10) days after the date due,
shall bear interest from the due date at an annual rate equal to the lesser of:
(a) eighteen percent (18%); or, (b) the highest rate permissible under the law.
VirtGame shall bear the risk of loss from any cause whatsoever until the
Products are delivered to Distributor at its location. Distributor may determine
the non-exclusive licensing fees, but VirtGame, in accordance with applicable
law, reserves the right, at any time, to set suggested licensing fees for the
non-exclusive licensing of the Products.
The parties agree that for all contracts/license agreements with
Customers that Distributor is entitled to share in the revenue pursuant to
Schedule A hereof or otherwise, all ▇▇▇▇▇▇▇▇ to Customers shall be made payable
jointly to VirtGame and Distributor and shall be remitted to Distributor at its
location. Distributor shall endorse all Customer payments over to VirtGame upon
receipt of payment from VirtGame to Distributor in an amount equal to
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Distributor's share in the revenue attributable to the Customer payment. In the
event VirtGame receives a payment, it shall immediately forward the same to
Distributor, and follow the procedures in the preceding sentence. Distributor
agrees that it shall review this payment policy with VirtGame upon the one-year
anniversary of this Agreement.
5. TERM. This Agreement shall be for a term commencing on July 1. 2002
and continuing in full force and effect through and including December 31, 2007,
unless earlier terminated pursuant to the terms hereof Distributor shall have
the option of extending this Agreement for and additional five (5) year term
upon written notice to VirtGame prior to the expiration of the initial term so
long as (i) total revenue from Customers for the Products exceeds $5,000,000
during the initial term, or (ii) Products are placed in at least 25 separate
Customer locations (each casino being deemed a separate location, even if
commonly owned) during the initial term. Notwithstanding the foregoing, VirtGame
shall have the option to terminate this Agreement (a) on the date that is
eighteen months from the date that VirtGame and Distributor agree that the Race
& Sports System is completed and ready for distribution to Customers if total
revenue from Customers for the Products does not exceed $1,000,000, or Products
are not placed in at least 6 separate Customer locations, and (b) on the date
that is thirty months from the date that VirtGame and Distributor agree that the
Race & Sports System is completed and ready for distribution to Customers if
total revenue from Customers for the Products does not exceed $2,000,000, or
Products are not placed in at least 11 separate Customer locations. Distributor
shall have the right to terminate this Agreement in the event (1) it determines,
in its reasonable discretion, that VirtGame cannot complete the Race & Sports
System in either a satisfactory time frame or at a quality standard acceptable
to its Customers, or (2) the parties do not complete and execute agreements for
a development license, consulting for outside tile Territory, and stock options
on or before August 15, 2002. Upon the termination of this Agreement and for
three (3) years thereafter, VirtGame shall not extend service, market, or
otherwise make the Race and Sports System available, except through Distributor,
to any Customer that has licensed the Race and Sports System in accordance with
the terms hereof.
6. PROPRIETARY RIGHTS AND CONFIDENTIALITY. Except as properly in the
possession of Distributor prior to the date of this Agreement or as otherwise
contained herein, all information, know-how, programming, software, trademarks,
trade secrets, plans, drawings, specifications, designs and patterns furnished
or created by VirtGame or by agents or contractors of VirtGame (other than
Distributor) and any and all property rights embodied therein are and shall
remain the sole property of VirtGame and neither Distributor nor any other party
shall have or acquire any interest therein except as required by law or pursuant
to a court order. Distributor shall at all times, whether during the term of
this Agreement or subsequent thereto, honor, maintain and protect the
confidentiality and secrecy of any confidential information related to the
Products that VirtGame may disclose to Distributor or its agents in writing. The
above clauses shall apply to confidential information received by Distributor
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and designated by VirtGame in writing at the time of disclosure as confidential.
Obligations of confidentiality shall not apply to information in the public
domain, rightfully acquired from a third party, already known or internally
developed without breach of this Agreement. To the extent Distributor shall
supply VirtGame with Proprietary Information, VirtGame shall comply with the
same rules of confidentiality being applied to Distributor hereunder.
7. WARRANTIES; INDEMNIFICATION.
7.1 VirtGame represents, warrants and covenants, to the best
of its knowledge, that: (i) it is the creator of the Products described in this
agreement (ii) it owns and shall own the Products, including all intellectual
property rights therein under copyright, patent, trademark, trade secret, and
other applicable law; (iii) to the extent that any third parties shall have any
rights with respect to any portion of the Products, VirtGame has obtained any
and all such third party rights and permissions which are required for the use
of the Products; and (iv) it has not received as of the date of this Agreement,
actual notice of any claim that the Products or the use thereof infringes any
intellectual property right of any third party anywhere in the world or that any
third party has any proprietary interest in or to the Products.
7.2 VirtGame shall indemnify and hold Distributor harmless
from and against all claims, suits, demands, actions, judgments, penalties,
damages, costs and expenses (including reasonable attorney's fees and costs),
losses or liabilities of any kind arising from (i) a claim that the Products
infringe a patent, copyright or other intellectual property tight of any other
person anywhere in the world or (ii) a breach by VirtGame of the representations
or warranties set forth in Section 7.1 of this Agreement; provided that
Distributor shall (i) promptly notify VirtGame in writing of and keep VirtGame
advised with respect to any such claim of infringement; (ii) provide to VirtGame
all available information, assistance and authority to defend, and (iii) give
sole control of the defense to VirtGame (including the right to select counsel)
and the reasonable right to compromise and settle such suit or proceeding,
except that Distributor shall have the right to approve any settlement offer
made by or to VirtGame that would impose hardship on Distributor hereunder.
7.3 VirtGame does not warrant that the software will meet any
Customer's needs, or that the operation of the software will be uninterrupted.
VirtGame does represent that it shall diligently work to fix any defects to the
Products that are reported to VirtGame.
7.4 Intentionally Deleted.
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8. USE AND LICENSING OF TRADEMARKS. VirtGame hereby grants to
Distributor a non-exclusive, royalty free, limited license to use VirtGame's
trademarks, copyrights and name (collectively, the "TRADEMARKS") used in
connection with Distributor's performance hereunder solely for the purpose of
this Agreement as is customary and necessary in the trade, which shall only be
transferable to Customers who obtain rights in the Products pursuant to the
terms of this Agreement. All use Distributor makes of the Trademarks shall inure
to VirtGame's benefit. Distributor shall not use, or permit others to use, the
Trademarks in any way other than the manner permitted herein. Distributor agrees
that the level of quality of all Products and services offered by Distributor
under the Trademarks and all related advertising, promotional and other uses of
the Trademarks should be similar to the level of quality currently being
rendered by VirtGame.
9. INDEPENDENT CONTRACTOR. Notwithstanding any expressed or implied
provision in this Agreement to the contrary, in no event is Distributor the
agent or legal representative of VirtGame for any purpose whatsoever, and
Distributor is expressly prohibited from acting in a manner that would allow any
reasonable third-party to draw a conclusion to the contrary. Except as expressly
set forth herein, Distributor is not granted any right or authority to assume or
to create any obligation or responsibility, express or implied, on behalf of or
in the name of VirtGame or to bind VirtGame in any manner or thing whatsoever.
10. CORPORATE REPRESENTATIONS AND WARRANTIES.
10.1 In addition to the representations and warranties
otherwise provided for in this Agreement. Distributor represents, warrants and
covenants to VirtGame as follows:
10.1.1 That Distributor is a corporation duly
organized, validly existing, and in good standing wider the laws of the state of
Nevada.
10.1.2 The execution of this Agreement and the
consummation of all transactions contemplated hereunder on its part to be
performed, (i) are within the authorized powers of Distributor; (ii) have been
duly authorized by appropriate corporate action, (iii) will not conflict with,
result in any breach of any of the provisions of, or constitute a default (or an
event which upon the giving of any required notice or lapse of time would
constitute a default) under Distributor's bylaws or the provisions of any
agreement, court or administrative order, consent, decree or other instrument to
which Distributor is a party, or violate the rights of any third party, and (iv)
the person executing this Agreement on behalf of Distributor has full right and
power and authority to execute and deliver this Agreement as provided herein.
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10.1.3 This Agreement constitutes a legal, valid and
binding obligation of Distributor enforceable in accordance with its terms
except as (i) the enforceability thereof may be limited by Bankruptcy,
insolvency or similar laws affecting creditors' rights generally, and (ii) the
availability of equitable remedies may be limited by equitable principles of
general applicability or by statute.
10.1.4 There are no contracts of employment,
management, maintenance, service, supply or rental or other contracts or
agreements, written or oral, to which Distributor is a party or which are
binding on Distributor that is in conflict with this Agreement.
10.1.5 All representations of Distributor appearing
in other Sections of this Agreement are true and correct.
10.1.6 Distributor is in compliance with all legally
significant applicable federal, state and local laws and regulations and has
obtained all necessary governmental approvals to enter into this Agreement and
perform its obligations hereunder.
10.2 In addition to the representations and warranties otherwise
provided for in this Agreement, VirtGame represents, warrants and covenants to
Distributor as follows:
10.2.1 That VirtGame is a corporation duly organized,
validly existing, and in good standing under the laws of the state of
Delaware.
10.2.2 The execution of this Agreement and the
consummation of all transactions contemplated hereunder on its part to be
performed, (i) are within the authorized powers of VirtGame, (ii) have been duly
authorized by appropriate corporate action, (iii) will not conflict with, result
in any breach of any of the provisions of, or constitute a default or an event
which upon the giving of any required notice or lapse of time would constitute a
default) under VirtGame's bylaws or the provisions of any agreement, court or
administrative order, consent, decree or other instrument to which VirtGame is a
party, or violate the rights of any third party, and (iv) the person executing
this Agreement on behalf of VirtGame has full right and power and authority to
execute and deliver this Agreement as provided herein.
10.2.3 This Agreement constitutes a legal, valid and
binding obligation of VirtGame enforceable in accordance with its terms
except as (i) the enforceability thereof may be limited by Bankruptcy,
insolvency or similar laws affecting creditors' rights generally, and (ii) the
availability of equitable remedies may be limited by equitable principles of
general applicability or by statute.
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10.2.4 There are no contracts of employment,
management, maintenance, service, supply or rental or other contracts or
agreements, written or oral, to which VirtGame is a party or which are binding
on VirtGame that is in conflict with this Agreement.
10.2.5 All representations of VirtGame appearing in
other Sections of this Agreement are true and correct.
10.2.6 VirtGame is in compliance with all legally
significant applicable federal, state and local laws and regulations and has
obtained all necessary governmental approvals to enter into this Agreement and
perform its obligations hereunder.
11. DEFAULT; TERMINATION.
11.1 In addition and without prejudice to the rights and
remedies available to the parties, either party (the "NON DEFAULTING PARTY") may
terminate this Agreement upon the occurrence of any of the following events of
default by the other party (the "DEFAULTING PARTY"), provided the Defaulting
Party has been given written notice of such default ("NOTICE OF DEFAULT"):
11.1.1 If the Defaulting Party violates any material
obligation or covenant under the terms of this Agreement and has failed to
cure the same to the reasonable satisfaction of the Non-Defaulting Party within
thirty (30) days of first learning of such violation:
11.1.2 If the Defaulting Party becomes insolvent or
bankrupt or admits in writing its inability to pay its debts as they mature,
or makes an assignment for the benefit of its creditor, or bankruptcy,
reorganization, arrangement or insolvency proceedings or other relief of debtors
are instituted by or against Defaulting Party (and. if commenced on an
involuntary basis, are not dismissed within 60 days);
11.1.3 If the Defaulting Party is informed that a
gaming regulatory authority within the United States having authority over
either party shall require this Agreement to be terminated (and. upon which
terms and conditions this Agreement shall be terminated as required by law or
regulation or conditions imposed by the applicable gaming regulatory authority
requiring such termination); or
11.1.4 If the Defaulting Party, or any officer,
director, or agent thereof, is charged, arraigned or convicted of violating any
local, state, federal, international or other laws that would pose a threat to
the Non Defaulting Party's ability to continue its gaming related operations, or
in any other reasonable way poses a threat to the Non Defaulting Party's ability
to continue its gaming-related operations.
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11.2 Upon the termination of this Agreement for a default of
Distributor pursuant to this Section:
11.2.1 All amounts owing by Distributor to VirtGame,
notwithstanding prior terms of sale, shall become immediately due and payable on
or before the effective date of termination, subject to Distributor's right of
setoff,
11.2.2 Distributor shall not engage in any activity,
which might imply or represent that it is an authorized VirtGame Distributor,
and shall, at its sole expense, take all steps necessary to remove any listing
in any telephone directory or other publication that it is an authorized
VirtGame Distributor;
11.2.3 Distributor shall, at its sole expense,
discontinue the use of VirtGame's trademarks, trade names, labels, materials
and signs beating the VirtGame name or any other trademark, service ▇▇▇▇, or
trade name of VirtGame and will remove such names and trademarks from
letterheads, stationery and other forms used by Distributor and
11.2.4 Distributor shall discontinue all reference to
VirtGame in all of its marketing activities.
1.1.2.5 Notwithstanding anything herein to the
contrary, Distributor shall have the right to continue to service any Customers
that are under contract for the Products at the time this Agreement is
terminated for the remaining term of those Customer contracts. VirtGame shall
continue to perform its obligations hereunder as it relates to those Customer
contracts. In no event shall Distributor provide for a Customer contract beyond
the term of this Agreement unless approved in writing by VirtGame.
11.3 Upon a default of the bankruptcy provisions of this
Agreement by VirtGame, Distributor's license rights hereunder shall convert to a
perpetual, Worldwide, irrevocable, paid-up, transferable, royalty-free license:
(i) to use, modify, enhance, and revise the Product software (including Source
and object code), documentation and materials for providing race and/or sports
services to Customers; (ii) to distribute Products to customers; and (iii) to
prepare and have prepared derivative works of the Products and/or Product
software for use in providing services to customers.
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12. DISPUTES.
12.1 The parties agree that in the event of any claim.
litigation or dispute arising under or out of this Agreement, or otherwise
relating hereto or to the Products or Territory, or arising hereunder, by or
between or affecting the parties hereto or any of said parties, any party hereto
shall submit such claim, litigation, dispute or matter to binding arbitration in
accordance with the provisions of this paragraph. The ▇▇▇-ties agree that all
matters shall be subject to binding arbitration pursuant to the rules of the
American Arbitration Association. All parties expressly consent to such binding
arbitration and further agree that any award of the arbitrator may be submitted
to any federal district court having competent jurisdiction (the parties hereby
consenting to the jurisdiction of the United States federal courts) to compel or
enforce such arbitration award. In the event the Federal District Court denies
jurisdiction after each party has aggressively sought such jurisdiction, all
parties agree to submit to the state courts of Nevada for the sole purpose of
enforcing the arbitration award.
12.2 In the event the arbitration provisions of this Agreement
are invoked, each party shall choose one arbitrator within twenty (20) days from
the date either party shall elect under this provision, and the two arbitrators
so chosen shall choose a third arbitrator within twenty (20) days after the
second of the two arbitrators has been chosen. The arbitrators shall be
disinterested, impartial persons, and shall agree to be bound by the tern-is of
the Agreement. The decision and/or ruling of a majority of the arbitrators shall
be deemed the ruling of the arbitration.
12.3 The arbitrators shall hold an arbitration hearing within
sixty (60) days after such appointment. The parties shall submit briefs and
evidence in advance of the hearing as ordered by the arbitrators, and be
entitled to take reasonable discovery on an expedited basis. The arbitrators
shall allow each party to present that party's case, evidence and witnesses, if
any, in the presence of the other party, and shall render an award within thirty
(30) days of the hearing, including a provision for payment of costs and
expenses of arbitration to be paid by one or both of the parties to this
Agreement, as the arbitrators deem just. The award of the arbitrators shall be
binding on the parties to this Agreement and judgment may be entered on such
award in any court having as provided above. The arbitrators sitting in any
arbitration arising under and pursuant to this Agreement shall not have the
authority or power to modify or alter any express condition or provision of this
Agreement or to render an award that by its terms has the effect of altering or
modifying any express condition or provision of this Agreement. The parties
further agree that the arbitrators, if the arbitrators deem it necessary, shall
be authorized to select and hire a certified public accountant to assist the
arbitrators in receiving and examining the books and accounts of the parties to
this Agreement, and the fees and costs of such certified public accountant shall
be borne as the arbitrators may direct in the arbitrators' award.
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13. MISCELLANEOUS.
13.1 ASSIGNMENT: This Agreement may not be transferred or
assigned by either party without written consent of the other party, which
consent shall not be unreasonable withheld. This Agreement shall inure to the
benefit of the parties and their respective authorized legal representatives,
successors and assigns and shall be binding upon VirtGame and Distributor and
their authorized successors and assigns.
13.2 AMENDMENT: No provision of this Agreement may be amended
or varied except by an agreement in writing signed by the parties hereto.
13.3 NO FIDUCIARY RELATIONSHIP CREATED HEREBY: It is
understood and agreed by the parties hereto that this Agreement does not create
any fiduciary relationship between Distributor and VirtGame and that nothing in
this Agreement is intended to make any party related to this Agreement a general
or special agent, legal representative, subsidiary, joint venturer, partner,
employee or servant of any other party, for any purpose. Distributor's services
are provided as an independent contractor to VirtGame, and VirtGame 's services
are provided as an independent contractor of Distributor.
13.4 THIRD PARTIES: Nothing in this Agreement, whether express
or implied, is intended to confer any rights or remedies on any person other
than the parties hereto and their respective successors and permitted
transferees and assigns, nor is anything in this Agreement intended to relieve
or discharge the obligation of any third person to any of the parties hereto,
nor shall any provision of this Agreement confer on any third person a right of
subrogation or action over or against any of the parties hereto.
13.5 NOTICES: Any and all notices and demands to the parties
hereto required or desired to be given hereunder shall be in writing and shall
be given either (i) by delivery in person to the addresses set forth below, (ii)
by delivery by a courier service keeping records of deliveries and attempted
deliveries to such address as set forth below and, in either case, promptly
confirmed, or (iii) by telecopy or similar facsimile transmission to the numbers
set forth below. The names, addresses and telecopy numbers of the parties
required to receive such notices and/or demands are:
Distributor: Las Vegas Dissemination, Inc.
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Vice President and General Counsel
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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VirtGame: VirtGame Corp.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇-▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation copies delivered by facsimile shall be deemed given upon
confirmed transmission. Any party hereto may change its address and/or number
for the purpose of receiving notices or demands as herein provided by a written
notice given in the manner aforesaid to the other party hereto, which notice of
change of address shall not become effective, however, until the actual receipt
thereof by the other party.
13.6 NON-WAIVER: The failure of either party to insist, in any
one or more instances, upon performance of any of the provisions of this
Agreement, or to take advantage of any of its rights hereunder, shall not
operate as a waiver thereof or preclude any other or further exercise thereof or
the exercise of any other right or power. Any waiver of any breach of this
Agreement shall be limited to the particular instance and shall not operate to
be deemed to waive any future breach nor shall any delay on the part of either
party to act upon any breach be deemed a waiver thereof.
13.7 NO PARTY DEEMED DRAFTER: The parties acknowledge that
they substantially and materially have contributed to the preparation of this
Agreement and agree that neither of them shall be deemed the drafter of this
Agreement, and that in the event this Agreement is ever construed by a court of
competent jurisdiction, such court shall not construe this Agreement or any of
its provisions against either of the parties as the drafter.
13.8 CAPTIONS: The captions and section headings contained
herein are for convenient reference only and shall not in any way affect the
meaning or interpretation of this Agreement.
13.9 SEVERABILITY: If any term, provision or condition of this
Agreement, or any application thereof, should be held by a court of competent
jurisdiction to be invalid, void or unenforceable, all provisions and conditions
of this Agreement and all applications thereof not held invalid, void or
unenforceable, shall continue in full force and effect and shall in no way be
affected, impaired or invalidated thereby.
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13.10 ENTIRE AGREEMENT: This Agreement contains the entire
agreement between the parties hereto. No verbal agreement or implied covenant
shall be held to vary tile provisions hereof, any statements, law or custom to
the contrary notwithstanding. No promise, representation, warranty or covenant
not included in this Agreement has been or is relied upon by either party. Each
party has relied upon its own examination of this Agreement and the counsel of
its own advisors. The failure or refusal of either party to read this entire
Agreement or other related document, or to obtain legal or other advice relevant
to this Agreement, constitutes a waiver of any objection or claim that might
have been based upon such inspection or advice. This Agreement shall be governed
by, and construed in accordance with, the internal laws of the State of Nevada.
13.11 TIME OF ESSENCE: Time is of the essence of this
Agreement and all of the terms, provisions and conditions hereof.
13.12 COUNTERPARTS: This Agreement may be executed in any
number of counterparts, each of which when executed and delivered shall be an
original, but all such counterparts shall constitute one and the same Agreement.
13.13 TIME OF PERFORMANCE: If the day specified in this
Agreement for the performance of any obligation is not a business day, the day
of performance of such obligation shall be extended until the next business day.
13.14 LEGAL FEES: If any dispute arising in connection with
the transactions described in this Agreement leads either to litigation or
arbitration, the prevailing party shall, in connection therewith, receive an
award for the recovery of its reasonable and necessary legal fees and expenses
from the non-prevailing, party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
VIRTGAME CORP. LAS VEGAS DISSEMINATION, INC.
By: /S/ By: /S/
------------------------------ ----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------- ----------------------------
Title: PRESIDENT & CEO Title: V.P. & GENERAL COUNSEL
------------------------------- ----------------------------
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SCHEDULE A ("LICENSE FEES")
Of the modified gross revenues (as defined below) derived from Products
within the Territory, VirtGame shall pay to Distributor the following:
(i) for all contracts/license Agreements for a Race &
Sports Systems (or any portion thereof), as well as
all additional revenues derived from said contracts
or agreements, forty percent (40%) of the modified
gross revenues;
(ii) for all contracts/license Agreements for Products
that relate to the race and/or sports system industry
(i.e., delivery systems, distribution systems.
communication systems, etc.), as well as all
additional revenues derived from said contracts or
agreements, twenty-five percent (25%) of the modified
gross revenues; and
(iii) for all other contracts/license agreements, as well
as all additional revenues derived from said
contracts or agreements:
1. twenty-five percent (25%) of the modified
gross revenues in instances where
Distributor provided the sales lead, made
contact with Customer on behalf of
VirtGame., or otherwise assisted in
procuring the deal;
2. ten percent (10%) of the modified gross
revenues for all matters that do not fall
within (iii) (1) above from the date total
revenue from Customers for the Products
exceeds $1.000,000, or Products are placed
in at least 6 separate Customer locations
and thereafter; and
3. zero percent (0%) of the modified gross
revenues for all matters that do not fall
within (iii) (1) above prior to the date
total revenue from Customers for the
Products exceeds $1,000,000, or Products are
placed in at least 6 separate Customer
locations.
The parties agree that modified gross revenues shall equal gross
revenues less the direct expenses for third party hardware and commercial
software (i.e., SQL Server) licensing. The parties further agree that VirtGame
should be allowed a reasonable direct software cost deduction for custom
modifications that are requested by Customers in the calculation of modified
gross revenues for those modifications. Finally, the parties agree that each
transaction may bring unforeseen, exorbitant, or unusual charges to be borne by
VirtGame or Distributor. The parties agree to discuss these matters on a
case-by-case basis to determine if any of said costs should be included as
reductions in the computation of modified gross revenues.
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VirtGame shall be obligated to supply, at its sole cost and expense,
all hardware and software required for each Customer contract. Distributor shall
assist in the installation of the Race & Sports System, and shall serve as the
primary maintenance provider (both hardware and software) for cacti Race &
Sports System.
The distribution of revenues set forth above shall be inclusive of all
revenues derived from each contract and/or license governed by this Agreement.
VirtGame may develop additional products over time that benefit the
pari-mutuel industry. VirtGame agrees to make available to Distributor, at the
1ee structure set forth herein, all future developed products, but subject to
all of the applicable terms and conditions set forth in this Agreement. VirtGame
shall timely notify Distributor of any such new product(s) and agrees to discuss
Distributor's interest in marketing the same.
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SCHEDULE B ("TERRITORY")
1. All entities and facilities in Nevada.
2. The Distributor's current customers based outside of the State
of Nevada
3. Any entity entering into a pari-mutuel related agreement with
Distributor in the future for so long as that entity maintains
a current agreement with Distributor.
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SCHEDULE C (FORM CONFIDENTIALITY AGREEMENT)
CONFIDENTIALITY AGREEMENT
Agreement dated the ____ day of ______________, 20___ between
___________________ ________________________________("Company") and Las Vegas
Dissemination. Inc. and/or any affiliate ("LVDC").
I. BACKGROUND. LVDC and Company intend to engage in discussions and
negotiations concerning the establishment of a business relationship between
them. In the course of such discussions and negotiations it is anticipated that
either party may disclose or deliver to the other party certain of its trade
secrets or confidential or proprietary information for the purpose of enabling
the other party to evaluate the feasibility of such business relationship. The
parties have entered into this Agreement in order to assure the confidentiality
of such trade secrets and confidential or proprietary information in accordance
with the terms of this Agreement. As used in this Agreement, the party
disclosing Proprietary information (as defined below) is referred to as the
Disclosing Party" and the party receiving such information as the "Recipient."
II. PROPRIETARY INFORMATION. As used in this Agreement, the term
Proprietary Information shall mean all trade secrets or confidential or
proprietary information designated as such in writing by the Disclosing Party,
whether by letter or by use of an appropriate stamp or legend, prior to or at
the time any such trade secret or confidential or proprietary information is
disclosed by the Disclosing Party to the Recipient, or which is disclosed in
circumstances of confidence or which would be understood by the parties
exercising reasonable business judgment at the time of disclosure to be
proprietary. Notwithstanding the foregoing, information that is orally or
visually disclosed to the Recipient by the Disclosing Party, or is disclosed in
writing without an appropriate letter, proprietary stamp or legend, shall
constitute Proprietary Information if the Disclosing Party within thirty (30)
days after such disclosure delivers to the Recipient a written document or
documents describing such Proprietary Information and referencing the place and
date of such oral or visual or written disclosure and the names of the employees
or officers of the Recipient to whom such disclosure was made.
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III. DISCLOSURE OF PROPRIETARY INFORMATION. Without prior written
authorization of the Disclosing Party, the Recipient will:
Use such Proprietary Information only for the purpose for which it was
disclosed and shall not use or exploit such Proprietary Information for
its own benefit or for the benefit of another;
Protect the Proprietary Information against disclosure to third parties
in the same manner and with the same degree of care, but not less than
a reasonable degree of care, with which it protects its confidential
information of similar importance;
Limit disclosure of Proprietary Information received under this
Agreement to persons within its organization who have a need TO know
such Proprietary information in the course of the performance of their
duties and who are bound to protect the confidentiality of such
Proprietary information.
IV. LIMIT OF OBLIGATION. The obligations of the Recipient specified in
paragraph III above shall not apply, and the Recipient shall have no further
obligations, with respect to any Proprietary Information to the extent that such
Proprietary Information.
A. Is generally known to the public at the time of disclosure
(which recipient can prove by written evidence), or becomes generally
known through no wrongful act of the Recipient.
B. Is in the Recipient's possession at the time of disclosure
(which recipient can prove by written evidence), otherwise than as a
result of the Recipient's breach of a legal obligation;
C. Becomes known to the Recipient through disclosure by
sources other than the Disclosing Party (which recipient can prove by
written evidence) having the legal right TO disclose such Proprietary
Information;
D. Is independently developed by the Recipient without
reference to or reliance upon the Proprietary Information; or
E. Is required to be disclosed by the Recipient to comply with
applicable laws or government regulations, provided the Recipient
provides prior written notice of such disclosure to the Disclosing
Party and takes reasonable and lawful actions to avoid and/or minimize
the extent of such disclosure.
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Specific information disclosed in connection with the transaction
described herein shall not be deemed to be within the public domain merely
because it is in the scope of more general information in the public domain.
Further, a combination of features shall not be deemed to be within the public
domain merely because individual features are within the public domain.
V. OWNERSHIP OF PROPRIETARY INFORMATION. The Recipient agrees that the
Disclosing Party is and shall remain the exclusive owner of its Proprietary
Information and all patent, copyright, trade secret, trademark and other
intellectual property rights therein. No license or conveyance of any such
rights to the Recipient is granted or implied ▇▇▇▇▇▇ this Agreement. Nothing
herein contained shall be constructed as a grant by implication, estoppel, or
otherwise, of a license by either party to the other to make, have made, use or
sell any product using Proprietary Information or as a license under any patent,
patent application, utility model, copyright, maskwork right, or any other
industrial or intellectual property right covering same.
VI. RETURN OF DOCUMENTS. The Recipient shall, upon the request of the
Disclosing Party, return to the Disclosing Party all drawings, documents and
other tangible manifestations of Proprietary Information received by the
Recipient Pursuant to this Agreement (and all copies and reproductions thereof.)
VII. COMMUNICATIONS. Written communications requesting or transferring
Proprietary Information under this Agreement shall be addressed only to the
respective designees as follows (or to such designees as the parties may from
time to time designate in writing):
[Company Name] LVDC
[Address] ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇
[City. State, ZIP] ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Attention: Vice President and General Counsel
VIII. MISCELLANEOUS. This Agreement, with respect to the subject matter
hereof, constitutes the entire agreement of the Parties and supersedes all prior
agreements, written of oral, between the Disclosing Party and the Recipient.
This Agreement may not be modified, changed or discharged, in whole or in part,
except by an Agreement in writing signed by the Disclosing Party and the
Recipient. This Agreement will be binding upon and inure to the benefit of the
parties hereto and their respective heirs, successors and assigns. The
provisions of this Agreement are necessary for the protection of the business
and goodwill of the parties and are considered by the parties to be reasonable
for such purposes. The Recipient agrees that any breach of this Agreement will
cause the Disclosing Party substantial and irreparable damages and, therefore,
in the event of any such breach, in addition to other remedies that may be
available, the Disclosing Party shall have the right to seek specific
performance and other injunctive and equitable relief. This Agreement shall be
construed and interpreted in accordance with the internal laws of the State of
Nevada.
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(Company Entity Name) LAS VEGAS DISSEMINATION, INC
By: By:
Name: Name:
Title: Title:
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