SOFTWARE LICENSE AGREEMENT
THIS NON-EXCLUSIVE SOFTWARE LICENSE AGREEMENT is made as of March 31,
2006 between Standing Stone Gaming, LLC, a Delaware limited liability
corporation, with an address at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("SSG") and
Pokermatic, Inc., a Pennsylvania corporation, with an address at ▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Pokermatic" or "Customer").
WHEREAS, SSG is a developer and provider of account based payment
transaction systems uniquely tailored for the gaming industry;
WHEREAS, SSG has developed and owns all right, title and interest in
and to an account based payment transaction system referred to as the "▇▇▇▇▇▇ ▇▇
Account-Based Gaming System," the components of which are identified on Schedule
A attached hereto (hereinafter the "SSG Licensed Software");
WHEREAS, Customer is a developer and provider of poker tables of
various types for use in a variety of venues, including without limitation
automated "dealerless" poker tables ("Pokermatic Tables") with unique
proprietary gaming software ("Pokermatic Software") for use in casinos and other
gaming venues; and
WHEREAS, Customer desires, and SSG agrees, to combine the SSG
Licensed Software with Customer's Pokermatic Tables and Pokermatic Software (the
Pokermatic Tables and the Pokermatic Software are collectively referred to
herein as the "Pokermatic System") to create a combined product for use in
casinos and other gaming venues.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions contained herein, and with the parties intending to be legally bound,
the parties hereby agree as follows:
I. DEFINITIONS
(a) The following terms, as used herein, have the following meanings:
"Agreement" means this agreement, together with all attached Schedules
and Exhibits.
"Business Hours" means Monday through Friday 8:00 a.m. ET to 5:00 p.m.
ET except public holidays, namely New Year's Day, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Day,
Presidents' Day, Memorial Day, Independence Day, Labor Day, Columbus Day,
Veterans Day, Thanksgiving Day and Christmas Day.
"Client Location" means the physical site at which the Integrated
Product has been deployed during the Term of this Agreement.
"Customer Service Location" means the physical site of SSG Licensed
Software, to be serviced by SSG pursuant to this Agreement, or such other
physical sites of such SSG Licensed Software as Customer shall, in writing,
designate to SSG from time to time.
"Documentation" means any printed or electronic materials provided by
SSG that document the functions of any SSG Licensed Software.
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"Effective Date" means the date on which this Agreement is executed by
both Parties.
"Error" means the material failure of SSG Licensed Software to conform
with the project description attached hereto as Schedule B, the Documentation,
or any additional specifications agreed upon in writing by the parties from time
to time.
"Force Majeure Event" means a circumstance precluding a Party hereto
from performing its obligations under this Agreement resulting from any cause
beyond such Party's reasonable control, including, without limitation, acts of
God; blackouts; power failures; blizzards; fire; explosions; floods;
hurricanes; tornadoes; earthquakes; epidemics; strikes; work stoppages;
industrial disputes; sabotage; accidents; destruction of production facilities;
riots or civil disturbances; war; acts of terrorism; and acts of government or
governmental agencies, including changes in law or regulations that materially
and adversely impact such Party's ability to perform its obligations under this
Agreement.
"Integrated Product" means the product resulting from combination
of SSG Licensed Software with the Pokermatic System, which product will operate
in accordance with the project description attached hereto as Schedule B.
"Nation" means the Oneida Indian Nation of New York.
"OGP", or "Open Gaming Protocol" means the publicly available, SSG
developed account-based gaming protocol used to communicate gaming transactions
between the ▇▇▇▇▇▇ ▇▇ account-based gaming system and electronic gaming and
entertainment devices.
"Party" means SSG and Customer or either; "Parties" means both SSG and
Customer.
"Site License" means a license granting the right to use the SSG
Licensed Software for each Client Location.
"Specifled Operating Environment" means such hardware type(s) and
other equipment, programming and programs set forth in Schedule A attached
hereto, which comprise a minimally suitable platform for the functioning of the
SSG Licensed Software. The Specified Operating Environment set forth in Schedule
A may be amended from time to time by written agreement of the Parties.
"Term" means the initial term set forth in Section IV(a) herein,
together with any Renewal Terms.
"Vendor Licensed Software" means a software program provided directly
to Customer from a party other than SSG and licensed directly to Customer from a
party other than SSG.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
-------------------- --------------
Acceptance Testing ll.(e)(ii)
Additional Services VIII.(b)
Beta Test ll.(c)
Customer Preamble
Page 2 of l9
Term Section
-------------------- --------------
Initial Integration II.(a)
Initial Fee III.(a)
License Fee III.(b)
Pokermatic Tables Third Recital
Pokermatic Software Third Recital
Pokermatic System Fourth Recital
Renewal Term IV.(a)
SSG Preamble
SSG Licensed Software Second Recital
Support VIII.(a)
Support Matrix VIII.(a)(2)
Update VIII.(a)
II. SERVICES AND LICENSES
(a) Initial Integration
SSG agrees to license to Customer the SSG Licensed Software for
combination with the Pokermatic System to create the Integrated Product
(hereinafter the "Initial Integration"). In connection with the Initial
Integration, SSG shall provide the following system and software engineering
services:
* Identification and explanation of OGP messages required to support the
development of the OGP interface between the SSG Licensed Software and
the Pokermatic System.
* Agreed to modifications to the SSG Licensed Software, including server
and point of sale components to support the Integrated Product.
* Provision and support of a WAN (via VPN) SSG Licensed Software account
based integration environment at the Rite-Solutions facility to allow
setup, integration, and test of the interface.
* Electronic and phone engineering and debug support related to the SSG
Licensed Software/Pokermatic System interface during the integration
and test phase, as requested by Customer.
* Such other services as are necessary to insure that the Integrated
Product operates in accordance with the project description attached
hereto as Schedule B.
SSG will provide support services for the SSG Licensed Software in accordance
with Section VIII of this Agreement.
(b) Subsequent Implementation
Upon the request of Customer, SSG also agrees to grant to Customer a
5-year single Site License for each subsequent installation of the Integrated
Product at a Client Location upon SSG's approval of the said license for each
Client Location, which approval shall not be unreasonably withheld. Each Site
License shall be deemed granted unless SSG states otherwise in writing within
five (5) business days of receiving Customer's written notification of a new
proposed Client Location. SSG shall make itself available to work with Customer
to jointly
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install the Integrated Product at each Client Location within fifteen (15) days
of the granting of the corresponding Site License. SSG will provide support
services with respect to each Site License in accordance with Section VIII
of this Agreement. Each Site License granted during the Term of this Agreement
shall survive termination of this Agreement.
(c) Beta Test
SSG agrees to work jointly with the Customer to plan, implement,
deploy, and support the installation and operation of the Integrated Product at
the Turning Stone Resort & Casino (TSRC) in Verona, NY. The installation and
operation of the Integrated Product will be designated as a "Beta Test" with the
intent of evaluating the Pokermatic and SSG technology and acceptability of the
combined product to the gaming public. The Beta Test, which will commence within
one hundred twenty (120) days of the Effective Date, will consist of between two
and four Pokermatic Tables and run for no less than 30 days and up to 90 days,
at the discretion of TSRC, with no associated fees to TSRC. SSG represents and
warrants that TSRC has been made aware of the details of this Paragraph II(c)
and that specific Beta Test planning and execution activities will be negotiated
by and between SSG, Customer, and TSRC and will be incorporated in a separate
agreement. The parties will work in good faith to finalize and sign the separate
agreement with TSRC simultaneously with the execution of this Agreement.
(d) Hardware
SSG will specify, procure, and configure hardware to be invoiced to
Pokermatic in the same amount actually paid by SSG with no additional fees or
markups of any kind, with Pokermatic's reasonable approval, for the first two
sites. The hardware that SSG has specified for the first two sites, and the
estimated cost for the said hardware, is set forth in Schedule C, which is
attached hereto. For subsequent sites, SSG will provide hardware specifications
and estimated costs, and, upon Pokermatic' s approval of the said hardware
specifications and estimated costs, Pokermatic will assume responsibility for
hardware purchase and installation.
(e) Product Delivery, Testing and Acceptance
(i) Within thirty (30) days of the Effective Date, SSG shall provide
the Customer with an online connection to the SSG Licensed Software and
be ready for integration with the Pokermatic System. Within that same
thirty (30) days or thereabouts the Customer shall have developed the
required software logic and OGP messages required to support the
Integrated Product and be ready to commence integration of the product
through the online connection.
(ii) Within sixty (60) days of the Effective Date, both SSG and the
Customer shall be ready and available either on-site at Customer's
place of business or at a mutually agreed to location, to perform the
assembly and actual (i.e. not online) integration of the SSG Licensed
Software with the Pokermatic System including the delivery and set-up
of all necessary hardware, network, and software components. Both
parties shall make their best efforts to have their respective
components of the Integrated Product ready for assembly and actual
integration prior to the beginning of the on-site integration. Once the
Integrated Product is assembled and integrated, product testing
("Acceptance Testing") will commence, as described below.
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(iii) Once the Integrated Product is assembled, the parties shall
jointly conduct tests to ensure that the Integrated Product functions
in accordance with the project description attached hereto as Schedule
B, and in accordance with the Acceptance Test Document to be jointly
developed by SSG and the Customer. The Acceptance Test Document shall
identify and test the functionality and performance of both the
Pokermatic System and SSG Licensed Software as an Integrated Product.
The format of the Acceptance Test Document, and any additional test
specifications, shall be agreed upon by both parties.
(iv) If, during the Acceptance Testing, SSG or the Customer determines
that the Integrated Product does not meet the above requirements, the
party making that determination shall promptly notify the other party
of the believed area(s) of non-compliance. Following such notification,
the parties shall meet and confer in order to jointly determine, and
specify in writing, the precise nature of the non-compliance and the
source of the non-compliance. Non-compliance shall be addressed and
corrected promptly by SSG, if the source of the non-compliance is the
SSG Licensed Software, or by the Customer, if the source of the
non-compliance is the Pokermatic System, or by both parties, if the
source of the non-compliance cannot be determined or is deemed a joint
non-compliance area.
In the event that such areas of non-compliance as determined above are
not addressed or promptly corrected, then SSG or the Customer may
immediately terminate this Agreement, at which point SSG or the
Customer shall promptly refund any fees paid by either party to the
other party up to the date of termination.
III. COMPENSATION
(a) Initial Integration
Customer shall pay to SSG the sum of TWENTY-FIVE THOUSAND AND 0/00
DOLLARS ($25,000.00) (hereinafter the "Initial Fee") for Initial Integration of
SSG Licensed Software. The Fee will be due as follows: $10,000 within ten (10)
days of the Effective Date and the remaining $15,000 within ten (10) days of the
commencement of the Beta Test at TSRC as described in Section II(c).
(b) Subsequent Implementation
To the extent that Customer deploys the Integrated Product at any
Client Location, Customer shall pay to SSG the sum of FIFTEEN THOUSAND AND 0/00
DOLLARS ($15,000.00) ("License Fee") for a 5-year single Site License for each
Client Location upon deployment and client acceptance of the Integrated Product.
Beginning with Site License 3 (implementation at 3rd site) Customer shall also
pay to SSG a per table license fee and 10% annual maintenance fee as shown
below.
(continued on next page)
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Number Table
of Site License License Total License Annual Maintenance
Tables Fee Fees Fees Fees
--------------------------------------------------------------------------------
1 $15,000 $ - $15,000 $1,500
--------------------------------------------------------------------------------
2 $15,000 $2,000 $17,000 $1,700
--------------------------------------------------------------------------------
3 $15,000 $4,000 $19,000 $1,900
--------------------------------------------------------------------------------
4 $15,000 $6,000 $21,000 $2,100
--------------------------------------------------------------------------------
5 $15,000 $7,500 $22,500 $2,250
--------------------------------------------------------------------------------
6 $15,000 $9,000 $24,000 $2,400
--------------------------------------------------------------------------------
7 $15,000 $10,500 $25,500 $2,550
--------------------------------------------------------------------------------
8 $15,000 $12,000 $27,000 $2,700
--------------------------------------------------------------------------------
9 $15,000 $13,500 $28,500 $2,850
--------------------------------------------------------------------------------
10 $15,000 $15,000 $30,000 $3,000
--------------------------------------------------------------------------------
11 $15,000 $16,500 $31,500 $3,150
--------------------------------------------------------------------------------
12 $15,000 $18,000 $33,000 $3,300
--------------------------------------------------------------------------------
13 $15,000 $19,500 $34,500 $3,450
--------------------------------------------------------------------------------
14 $15,000 $21,000 $36,000 $3,600
--------------------------------------------------------------------------------
15 or $15,000 $22,500 $37,500 $3,750
more
--------------------------------------------------------------------------------
The cost of the License Fee shall remain unchanged, unless the parties jointly
determine that the SSG Licensed Software should be upgraded, modified or
enhanced in any way, at which time the License Fee may reasonably increase upon
mutual agreement of the parties, which agreement shall not be unreasonably
withheld.
IV. TERM; TERMINATION
(a) Term
The term of this Agreement shall commence on the Effective Date and
shall continue for a period of five (5) years, unless terminated sooner in
accordance with the provisions of this Section IV. The Parties may renew this
Agreement for a subsequent five-year term (a "Renewal Term") upon mutual written
agreement.
(b) Termination
Either Party may terminate this Agreement during the Term upon ten
(10) days' prior written notice to the other Party if:
(1) The other Party fails to or refuses to pay any amount due
hereunder for more than thirty (30) days after written notice
thereto that an invoice for such amount has been submitted to
such other Party and has not been paid, and such amount is not
being contested in good faith by such other Party.
(2) The other Party materially breaches any provision of this
Agreement applicable to it and fails to cure such breach
within thirty (30) days after its receipt of written notice of
such breach.
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(3) The other Party declares in a sworn writing that a Force
Majeure Event has occurred and the material effects of such
Force Majeure Event continue in existence for more than sixty
(60) days.
(4) The other Party (i) files a voluntary petition in bankruptcy;
(ii) shall have filed against it an involuntary petition in
bankruptcy which is not vacated within thirty (30) days
thereafter; (iii) makes an assignment for the benefit of
creditors; (iv) files a petition or an answer seeking an
arrangement with creditors, or takes advantage of any
insolvency law to protect itself against creditors;
(v) applies for or consents to the appointment of a
receiver or trustee of all or a substantial part of its
assets; or (vi) has entered against it in any court of
competent jurisdiction an order, judgment, or decree
appointing a receiver of all or a substantial part of its
assets, and such order, judgment or decree continues unstayed
and in effect for any period of thirty (30) or more
consecutive days.
In addition, Customer may terminate this Agreement during the Term
upon ten (10) days' prior written notice to SSG if TSRC capriciously or without
good causes refuses to proceed with the Beta Test in accordance with Paragraph
II(c) herein. The Customer may not terminate this Agreement due to Beta Test
delays or stops introduced as a result of review by the Oneida Indian Nation
Gaming Commission or other gaming regulatory body.
V. WARRANTIES; LIMITATION OF LIABILITIES
(a) Warranty for SSG Licensed Software and SSG Service
SSG warrants that all services rendered by it pursuant to this
Agreement shall be performed in a workmanlike manner and that the SSG Licensed
Software shall conform in all material respects to the project description
attached hereto as Schedule B, the Documentation, and any additional
specifications agreed upon in writing by the parties from time to time. SSG
further warrants and represents that (i) the SSG Licensed Software is original
to SSG, (ii) that SSG owns or possess a valid right to use and sublicense any
and all components of the SSG Licensed Software; and (iii) that neither the SSG
Software nor Customer's use of the SSG Licensed Software will infringe any
patent, copyright, trade secret, or other intellectual property right of any
third party or otherwise conflict with the rights of any third party. SSG shall
indemnify Customer, and hold customer harmless, from and against any and all
claims, liabilities, suits, losses, damages, injuries and expenses, including
without limitation reasonable attorneys' fees, that arise from or may be
attributable to (a) any actual or alleged infringement of any patent,
copyright, trade secret or other intellectual property right by the SSG
Licensed Software, except to the extent that such infringement arises solely
from the modification of the SSG Licensed Software by Customer, or (b) any
breach by SSG of its representations and warranties set forth in this Section
V(a) of this Agreement.
(b) Warranty for Customer Software, Service.
Customer warrants that all services rendered by it pursuant to this
Agreement shall be performed in a workmanlike manner and that the Pokermatic
Software shall conform in all material respects to the specifications agreed
upon in writing by the parties from time to time. Customer further warrants and
represents that (i) the Pokermatic Software is original to Customer, (ii) that
Customer owns or possess a valid right to use and sublicense any and all
components of the Pokermatic Software; and (iii) that neither the Pokermatic
Software nor
Page 7 of 19
Customer's use of the Pokermatic Software will infringe any patent, copyright,
trade secret, or other intellectual property right of any third party or
otherwise conflict with the rights of any third party. Customer shall indemnify
SSG, and hold SSG harmless, from and against any and all claims, liabilities,
suits, losses, damages, injuries and expenses, including without limitation
reasonable attorneys' fees, that arise from or may be attributable to (a) any
actual or alleged infringement of any patent, copyright, trade secret or other
intellectual property right by the Pokermatic Software, except to the extent
that such infringement arises solely from the modification of the Pokermatic
Software by SSG, or (b) any breach by Customer of its representations and
watranties set forth in this Section V(b) ofthis Agreement.
(c) No Warranty for Vendor Licensed Software
Customer acknowledges that Customer shall be solely responsible for
obtaining licenses to Vendor Licensed Software. SSG MAKES NO WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE QUALITY, CAPABILITIES,
OPERATIONS, PERFORMANCE OR SUITABILITY OF VENDOR LICENSED SOFTWARE, INCLUDING
THE ABILITY TO INTEGRATE SUCH VENDOR LICENSED SOFTWARE WITH THE SSG LICENSED
SOFTWARE AND/OR HARDWARE. The quality, capabilities, operations, performance and
suitability of such Vendor Licensed Software lie solely with Customer and the
vendor or supplier of such Vendor Licensed Software.
(d) Exclusivity of Warranties
THESE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER WARRANTY OF
QUALITY, WHETHER EXPRESS OR IMPLIED. SSG DOES NOT WARRANT THAT THE SSG LICENSED
SOFTWARE WILL MEET CUSTOMER'S FUTURE OR UNDISCLOSED REQUIREMENTS.
(c) Limitation of Liabilities
EXCEPT FOR THE LIABILITY UNDER THE INDEMNITY SET FORTH IN SECTIONS
V(a) AND V(b) HEREIN, THE LIABILITY OF THE PARTIES TO EACH OTHER FOR ANY REASON
AND UPON ANY CAUSE OF ACTION OR CLAIM SHALL BE LIMITED TO THE ACTIONS NECESSARY
TO MEET THE PERFORMANCE CRITERIA SPECIFIED IN THIS AGREEMENT, OR, AT THE LIABLE
PARTY'S SOLE DISCRETION, TO THE AMOUNT PAID TO THE LIABLE PARTY BY THE OTHER
PARTY HEREUNDER WITH RESPECT TO THE PRODUCT OR SERVICE WHICH IS THE SUBJECT OF
THE APPLICABLE ACTION OR CLAIM. BOTH PARTIES UNDERSTAND AND AGREE THAT THE
REMEDIES, EXCLUSIONS AND LIMITATIONS HEREIN ALLOCATE THE RISKS OF PRODUCT AND
SERVICE NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM
COMMERCIAL CODE AND/OR OTHER APPLICABLE LAWS. THE FEES HEREIN REFLECT, AND ARE
SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL
DAMAGES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT.
Page 8 of 19
VI. CERTAIN SPECIFIC RESPONSIBILITIES
(a) Notice of Hazard
Customer shall promptly notify SSG if it becomes aware of potentially
unsafe conditions or hazardous materials to which SSG's personnel could be
exposed at any Customer Service Location.
(b) No Assignment; Successors and Assigns
Each Party agrees not to assign, or otherwise transfer, this Agreement
or rights under it, delegate its obligations, or resell any product or service,
without the prior written consent of the other Party, except to a successor in
ownership of substantially all of the assets used in the business of SSG or
Customer to which this Agreement relates (whether by purchase of assets or by
merger or other form of consolidation). Any attempt to so assign, transfer,
delegate or resell without such required consent shall be null and void, as well
as a material breach of this Agreement.
(c) Access to Customer Service Location and Remote Access
Customer shall provide SSG with sufficient, timely electronic access
to any Customer Service Location requiring remote Support in order for SSG to
fulfill its obligations under this Agreement. Customer shall provide SSG with
sufficient, timely access to any Customer Service Location requiring on-site
Support in order for SSG to fulfill its obligations under this Agreement.
(d) Support Coordination
The Customer will designate and provide SSG with a primary support
coordinator and alternate support coordinator each of who are authorized to
communicate directly with SSG personnel.
(e) Use Limited
Customer shall make no use of the SSG Licensed Software other than for
use with the Pokermatic System for development and use of the Integrated
Product, and Customer shall not copy or disseminate the SSG Licensed Software
other than as set forth herein without SSG's prior written approval. SSG shall
make no use of the Pokermatic Software other than for use with the Pokermatic
System for development and use of the Integrated Product, and SSG shall not copy
or disseminate the Pokermatic Software other than as set forth herein without
Pokermatic' s prior written approval.
(f) Maintenance of Backup Procedures
Customer shall maintain reasonably adequate procedures for the
reconstruction or replacement of lost or altered files, data or programs.
(g) Compliance with Operating Protocols
Customer shall comply with the routine operating protocols specified
in the Documentation or otherwise communicated by SSG in writing from time to
time.
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(h) No Unauthorized Support
Customer shall not permit persons other than authorized
representatives of SSG to provide Support for SSG Licensed Software without the
prior written consent of SSG, provided, however, that SSG's consent will be
deemed to have been granted if SSG is unwilling or unable to provide support
reasonably requested by Customer consistent with this Agreement within fifteen
(15) days of a written request by Customer.
(i) Good Faith
Each Party shall conduct its business, as it relates to this
Agreement, in a commercially reasonable, legal and ethical manner. Each Party
shall regularly and timely keep the other Party informed regarding the informing
Party's business activities as they relate to this Agreement.
VII. RESPECTIVE RIGHTS IN SOFTWARE; EXCLUSIVITY;
CONFIDENTIALITY; NON-SOLICITATION; NO-HIRE
(a) Rights in SSG Licensed Software
Title to and ownership of the SSG Licensed Software and all copies,
partial copies and any and all revisions, enhancements, Updates or modifications
thereto shall remain with SSG. All rights to patents, copyrights, trademarks and
trade secrets contained in the SSG Licensed Software, or any Update thereto,
shall remain with SSG.
(b) Rights in Integrated Product
Title to and ownership of the all remaining elements and components of
the Integrated Product other than the SSG Licensed Software, including without
limitation the Pokermatic Tables and the Pokermatic Software, and any and all
revisions, enhancements, updates or modifications to any of the foregoing, shall
remain with Customer. All rights to patents, copyrights, trademarks and trade
secrets contained in the Integrated Product (excluding the SSG Licensed
Software), or any update thereto, shall remain with Customer.
(c) Indemnification
Customer shall indemnify, defend and hold harmless SSG against any
action, suit, or proceeding, or settlement thereof, to the extent that such
action, suit or proceeding claims that an element of the Pokermatic Software
infringes any patent, copyright, or trade secret of any third party or that any
trademark used with respect to the Pokermatic Software infringes any right of
any third party.
(d) Confidentiality
Both Parties agree to abide by and enforce the Mutual Non-Disclosure
of Confidential Information Agreement executed by both Parties on January 23,
2006.
(e) Non-Solicitation; No-Hire
Each Party agrees not to engage in any attempt to hire, or to engage
as independent contractors, the other Party's employees or currently employed
subcontractors until two (2) years after termination of this Agreement, except
as may otherwise be agreed to in writing by the other
Page 10 of 19
Party. In the event that this provision is breached, the breaching Party agrees
to make whole the non-breaching Party for all reasonable costs and expenses,
including legal fees, which such non-breaching Party incurs in deterring, or in
consequence of, such competitive employment.
VIII. SUPPORT
(a) Scope of Support Services
SSG shall provide the following support services ("Support") for SSG
Licensed Software which is listed in Schedule A hereto at no additional cost to
Customer:
(1) On-demand telephone and e-mail consultation. When a problem
occurs which the Customer reasonably believes is related to
an Error in any SSG Licensed Software, within a reasonable
time (and in no event more than forty-eight (48) hours) after
Customer's initiation of telephonic or e-mail contact, SSG
shall prescribe appropriate problem definition activities and
remedial actions per the terms defined in Schedule A, Section
III ("Support Matrix"). Customer agrees that telephonic
consultation outside of Normal Business Hours shall be
initiated only for business critical or emergency situations
with respect to the SSG Licensed Software;
(2) If an Error persists after implementation of advice furnished
by SSG during telephone or email consultation pursuant to
this Section, SSG shall endeavor to remedy such Error
remotely, if possible. Upon SSG's determination that on-site
maintenance is appropriate, which determination shall not be
unreasonably withheld, SSG shall dispatch within a reasonable
time (and in no event more than three (3) business days) an
appropriate number of SSG representatives to the applicable
Customer Service Location to attempt to remedy the Error.
(3) Notice of each available suite of enhancements or
modifications to any SSG Licensed Software (each, an
"Update"), which Update shall be furnished to Customer upon
Customer's election as provided in this Paragraph; provided,
however, that if SSG reasonably advises Customer that an
Update is required in order for SSG to comply with
representations and/or warranties made by SSG under this
Agreement, Customer shall not unreasonably withhold such
consent. Customer agrees that should it elect to obtain an
Update, it shall notify SSG in writing within sixty (60) days
of SSG's notice of such Update's availability, upon which SSG
shall, within a reasonable time, furnish such Update in such
form as SSG shall decide in its reasonable discretion;
(4) Such other support services as Customer shall request and SSG
shall agree to provide, in its sole discretion, as set forth
in a written supplement or addendum to this Agreement.
(5) Notwithstanding anything herein to the contrary, to the
extent that the combination of the SSG Licensed Software and
the Pokermatic System requires SSG to make substantial
changes to the SSG Licensed Software that require SSG to
commit significant manpower to making such changes, the
services provided in connection with making such changes
shall not be "Support" as defined in this
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Section, but rather shall be treated as "Additional Services,"
as that term is defined below.
(b) Additional Services
To the extent that Customer requests, and SSG agrees to provide,
support services in addition to those set forth in Section VIII(a), including
services pertaining to the development of custom enhancements specifically
requested by Customer, (hereinafter "Additional Services"), SSG shall be
compensated for the Additional Services at a mutually agreeable, commercially
reasonable rate.
(c) Expense Reimbursement
In the event on-site Support is furnished for service or maintenance
for problems or concerns other than Errors, Customer shall reimburse SSG for all
reasonable and customary travel and living expenses that it may incur. In the
event on-site Support is furnished to correct an Error, SSG shall be responsible
for all reasonable and customary travel and living expense, together with any
other fees incurred.
(d) Subcontracting; Assignment
Except as permitted in this Agreement, and excluding current SSG
subcontractors, no part of this Agreement or the Support to be provided
hereunder shall be subcontracted or assigned by SSG without Customer's prior
written consent, which shall not be unreasonably withheld. If Customer consents
to a subcontract or assignment or if a subcontract or assignment is otherwise
permitted under this Agreement, SSG shall ensure that any such subcontract or
assignment incorporates all of the terms and conditions hereof.
IX. MARKETING
Each party shall use reasonable efforts to develop and implement an
effective marketing strategy. The use of either SSG Licensed Software or SSG's
name or Customer's Pokermatic System or Customer's name shall be at the written
approval and discretion of both SSG and Customer. The specific marketing rights
and constraints regarding the two products shall be negotiated by SSG and
Customer.
Upon SSG review and approval of Pokermatic's business plan including
its 2-year marketing plan, SSG will provide space for Pokermatic product display
at SSG's Booth at G2E in 2006. SSG will also use reasonable efforts to provide
assistance in marketing the Pokermatic System to the Native American gaming
community.
X. GENERAL
(a) This Agreement (including the Schedules and Exhibits hereto)
represents the entire understanding and agreement between the Parties with
respect to the subject matter hereof, and supersedes all other prior oral or
written communications, negotiations, understandings, representations (if any)
made by and between the Parties (except the agreement referred to in Section
VII(d) herein).
Page 12 of 19
(b ) All of the terms and provisions of this Agreement, whether so
expressed or not, shall be binding upon, inure to the benefit of, and be
enforceable by the Parties and their respective legal representatives,
successors and permitted assigns.
( c) If any part of this Agreement or any other agreement entered into
pursuant hereto is contrary to, prohibited or deemed invalid under applicable
law or regulation, such provision shall be prohibited or invalid, but the
remainder hereof shall not be invalidated thereby and shall be given full force
and effect so far as possible.
(d) The failure or delay of any Party at any time to require
performance by another Party of any provision of this Agreement, even if known,
shall not affect the right of such Party to require performance of that
provision or to exercise any right, power or remedy hereunder, and any waiver by
any Party of any breach of any provision of this Agreement shall not be
construed as a waiver of any continuing or succeeding breach of such provision,
a waiver of the provision itself, or a waiver of any right, power or remedy
under this Agreement.
(e) No notice to or demand on any Party in any case shall, of itself,
entitle such Party to any other or further notice or demand in similar or other
circumstances.
(f) Following installation and completion of the Beta Test at TSRC,
should TSRC desire to continue to operate the Pokermatic System, with or without
the SSG Licensed Software, pricing of production system and other pertinent
terms and conditions will be negotiated by the relevant parties.
(g) The terms of this Agreement may be modified only by written
agreement of both Parties, duly signed by persons authorized to sign agreements
on behalf of the Customer and SSG.
(h) All notices, demands, requests or consents required or permitted
under this Agreement shall be in writing and shall be hand delivered, sent by
facsimile, or mailed certified return receipt requested to the respective
parties at the following addresses, as the same may be changed by notice to the
other Party:
If to SSG:
Standing Stone Gaming LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Vice President
If to Customer:
Pokermatic, Inc.
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇,▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, President
Page 13 of 19
Any notice required or permitted to be given by the provisions of this
Agreement will be conclusively deemed to have been received on the day it is
delivered to that party by confirmed facsimile, by U.S. Mail with acknowledgment
of receipt, or by any commercial courier providing equivalent acknowledgment of
receipt.
(i) SSG and Customer are independent contractors, and no agency,
partnership, joint venture, employer-employee or other similar relationship is
intended or created by this Agreement.
a) In the event of any dispute with regard to the interpretation of
this Agreement or the respective rights and obligations of the Parties, other
than those for which injunctive relief is appropriate, and as a condition
precedent to any legal action being commenced by either Party, the officers of
the parties shall in good faith attempt to resolve the Parties' differences. If
the dispute is not then resolved within ten (10) business days, either Party may
submit the matter to arbitration in accordance with the provisions of applicable
state law, as from time to time amended. Arbitration proceedings, including the
selection of an arbitrator, shall be conducted pursuant to the then extant
rules, regulations and procedures of the American Arbitration Association. Prior
written notice of application by either Party for arbitration shall be given to
the other at least ten (10) days before submission of the application to said
Association's office nearest the Party bringing the dispute. The arbitrator
shall hear the Parties and their evidence. The decision of the arbitrator shall
be binding and conclusive, and where applicable, judgment upon the award or
decision of the arbitrator may be entered in any court of competent
jurisdiction. The Parties further agree that any process or notice of motion or
other application to a court of competent jurisdiction may be served by
registered mail or by personal service; provided a reasonable time for
appearance is allowed. The costs and expenses of each arbitration hereunder and
their apportionment between the Parties shall be determined by the arbitrator in
his award or decision. No arbitrable dispute shall be deemed to have arisen
under this Agreement prior to the expiration of the period often (10) days after
the date of the giving of written notice by the Party asserting the existence of
the dispute together with a description thereof sufficient for an understanding
thereof.
(k) This Agreement and performance hereunder shall be governed by the
laws of the State of New York without regard to its conflict of law provisions.
No action, regardless of form, arising out of this Agreement shall be brought by
either party more than one (1) year after such cause of action shall have
accrued.
(l) The following provisions of this Agreement shall survive its
cancellation, termination or expiration:II(b); V; VII; VIII(a); X.
(continued on the next page)
Page 14 of 19
IN WITNESS WHEREOF, the Parties hereto executed this Agreement as of the
Effective Date.
STANDING STONE GAMING, LLC POKERMATIC, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------ ---------------------------
Authorized Signature Authorized Signature
Name: ▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------ ---------------------------
Title: Manager and COO Title: President
------------------------ ---------------------------
Date: March 31, 2006 Date: 4/7/06
------------------------ ---------------------------
Page 15 of 19
License and Support
Name and Address of Customer: Date: March 31, 2006
Pokermatic, Inc.
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ Agreement No.:
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
ATTN: ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, President
Primary Support Coordinator:
Mr. ▇▇▇▇ ▇▇▇▇▇▇▇, CTO
Alternate Support Coordinator
▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, President
I. LICENSED SOFTWARE SUBJECT TO SUPPORT
---------------------------------------------------------------------------
SSG Licensed Software Annual Fee
---------------------------------------------------------------------------
Oneida Il(R) Transaction Center -- Lite (OII Lite) N/A
---------------------------------------------------------------------------
User Interface Applications Included
---------------------------------------------------------------------------
Cashier Stations (CAS) Included
---------------------------------------------------------------------------
Palm Cashier (PCAS) Included
---------------------------------------------------------------------------
Customer Service Stations (CSS, TMAS) Included
---------------------------------------------------------------------------
System Administration & Management Station (▇▇▇) Included
---------------------------------------------------------------------------
Transaction Server Included
---------------------------------------------------------------------------
Transaction Processor (TXP) Included
---------------------------------------------------------------------------
Transaction Archiver (TXA) Included
---------------------------------------------------------------------------
Trailer Applications (TL) Included
---------------------------------------------------------------------------
Front End Processor (FEP) Included
---------------------------------------------------------------------------
Database (DBS) Included
---------------------------------------------------------------------------
II. SPECIFIED OPERATING ENVIRONMENT
The following operating environments are required for the SSG Licensed Software:
▇▇▇▇▇▇ ▇▇ TM Lightweight Transaction Center (OII Lite). The OII Lite
server applications identified above (TXP, TXA, TL, FEP, DBS) require
the Red Hat Linux Enterprise Server v.1.0.0 or later operating system.
OII Lite requires an IBM X225 eServer or Dell Power Edge 1850 server
with at least 2 GB of RAM, 150 GB RAID configured hard drive storage,
Network Interface Card (NIC), 24X CD-RW/DVD drive, Keyboard, and
Mouse.
Page 16 of 19
OII Lite User Interface Applications (UIA). The Oil Lite UIA point of
sale programs identified above (CAS, RCAS, CSS, TMAS, ▇▇▇) require the
Windows 2000 or XP operating system and are intended to run on
Intel-based, Windows PC platforms with a minimum of Intel P4 2.4 GHz
processor, 512MB RAM, 40 GB harddrive storage, NIC, CD-R drive,
keyboard, mouse and a 17" ELO Touchs screen Monitor.
Palm Cashier application (PCAS). The PCAS application requires Palm OS
V4.1. and is intended to run on a Symbol SPT1846 wireless (802.11b)
handheld computer configured with 8MB RAM and an Symbol MSR 3000
Magnetic Stripe Reader.
UPS. It is recommended that the OII Lite Server and UIA point-of-sale
components utilize an Uninterruptible Power Supply (UPS) such as APC
SmartUPS (SU700NET) to insure graceful shutdown in the event of an
extended power failure at the client location.
III. SUPPORT MATRIX
Support Acknowledgment Response
Category Definition Time 1 Time 2
--------------------------------------------------------------------------------------------------------------
Business System stops due to product or Within Two Hours Within Four Hours
Critical I feature failure or data
Emergency corruption, frequently
requiring a software patch.
--------------------------------------------------------------------------------------------------------------
Serious Feature/product failure, Within Four Business Hours Within One Business Day
inconvenient workaround exists,
normally requiring a patch.
--------------------------------------------------------------------------------------------------------------
Minor Minor impact. Feature/ product Within Four Business Hours Within Two Business Days
failure, convenient workaround
exists.
--------------------------------------------------------------------------------------------------------------
1. Acknowledgement time refers to the length of time within which SSG
designated personnel will contact the Customer initiating the
telephonic or email support request to inform them that they have
received and acknowledged the request for support.
2. Response time refers to the length of time within which SSG designated
personnel will respond to the telephonic or email support request with
appropriate problem definition activities and remedial actions.
Page 17 of 19
Schedule B
Project Description
The integrated product will consist of one or more Pokermatic video
poker tables, Pokermatic game controller/server(s), and one or more poker game
management stations connected via ethernet to an SSG ▇▇▇▇▇▇ ▇▇ TM (OII)
account-based cashless gaming server and one or more PCs hosting user interface
Point-of-Sale (PO5) applications and devices.
The OII server will manage and process gaming transactions for player
account creation and account deposits, account withdrawals, funds transfer from
a player's account to the player on the Pokermatic system to support chip buyin,
funds transfer from a player on the Pokermatic system to the player's account on
the OII server to support chip cashout. The OII server will also generate
financial reports related to player account activity and gaming transactions.
The user interface POS components of the product will consist of one
or more Windows PCs configured with color touchscreen, keyboard, mouse,
keyboard-mounted magnetic card swipe, magnetic card printer/encoder, receipt
printer, license or image scanner, and a combined magnetic card reader and PIN
pad for establishing and entering PINs during account creation and cashiering
transactions. The POS registration application will provide "user friendly"
operator functionality to allow player account creation including personal
information entry, image capture, PIN setting, and printing of the player's
account card for use on the integrated product. The POS cashiering application
will allow the player to deposit funds on his/her account for transfer and use
at the poker game as well as allow the player to withdraw funds from his account
at the conclusion of play. The player should also be able to use his/her card to
add additional money to his account during play.
Page 18 of 19
Schedule C
Hardware
The following table identifies the anticipated computer equipment and devices
required for the SSG Licensed Software portion of the Integrated Product for a
single site with up to 10 tables. Specific equipment types and model may change
due to availability or cost considerations.
-------------------------------------------------------------------------------
Item Use Quantity
-------------------------------------------------------------------------------
Dell Optiplex w/ELO touch screen Registration/Cashier 1
-------------------------------------------------------------------------------
Magtek Intellipin Registration/Cashier 1
-------------------------------------------------------------------------------
Mini-Card Swipe Registration/Cashier 1
-------------------------------------------------------------------------------
Eltron Card Printer Registration/Cashier 1
-------------------------------------------------------------------------------
License/ID Scanner (ScanShell 800) Registration/Cashier 1
-------------------------------------------------------------------------------
Receipt Printer (Epson TM-T90) Registration/Cashier 1
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Dell PowerEdge 1850 Account Server 1
-------------------------------------------------------------------------------
UPS for PowerEdge Account Server 1
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Netgear 16-port Switch Network 1
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Laser Printing Reporting 1
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Wireless AP (optional) Remote Cashier 1
-------------------------------------------------------------------------------
Palm Handheld Terminal (optional) Remote Cashier 1
-------------------------------------------------------------------------------
Wireless Thermal Printer (optional) Remote Cashier 1
-------------------------------------------------------------------------------
The estimated cost for the above-identified hardware is approximately $10,000 -
$14,000 for each site.
Page 19 of 19
Lightning Poker/Standing Stone Gaming -- 1/5/07
Overview: Lightning Poker "LP" and Standing Stone Gaming "SSG" are interested in
redoing an agreement by which LP would own the ▇▇▇▇▇▇ ▇▇ Lite product including
all software, including the wireless chip runner and player tracking "OII Lite".
LP would be restricted from utilizing or marketing the OII Lite for purposes
other than as part of its automated gaming table systems. LP would compensate
SSG as part of this agreement.
Projections: Lightning Poker projects to lease 200 automated gaming tables
across 67 casinos over the next 3 years, with an estimate of 100 of the tables
and 33 casinos utilizing the OII Lite. Under the current LP/SSG agreement,
this would generate approximately $845,000 for SSG.
Lightning Poker recognizes the value that SSG and Turning Stone has provided to
Lightning Poker and want to make it clear that we value this partnership and
will continue to work to improving it and expanding it where it makes sense. As
such we make the following proposal which we believe recognizes not just the
projected value proposition, but also provide SSG/TS the opportunity to benefit
from the upside of Lightning Poker.
Proposed New Deal Points:
* SSG sell the software to the OII Lite to LP
* LP would be restricted from marketing the OII Lite except as part of
its automated gaming table systems
* LP to compensate SSG in the following manner;
* Provide the three (3) Lightning Poker Tables free of charge to Turning
Stone Casino ($435,000 in value)
* Provide $410,000 in LP stock to SSG
We truly appreciate your consideration of this and look forward to working
towards a mutually beneficial new agreement.