THIS AGREEMENT is made the 24th day of
January 2005
BETWEEN:
(1) The Poker Channel Ltd., a
company incorporated
under the laws of
England
and Wales
(registered number
_____________) whose registered office is at
located at
________________ ("TPC"); and
(2) ZONE4PLAY Inc. a company incorporated under the laws of the State of
Delaware,
USA, having its
registered offices at 103 Faulk Road Suite 202,
Wilmington, Delaware ("Zone4Play");
(Each, a "Party" and together, the
"Parties").
WHEREAS, TPC is the owner and operator of a television channel providing
interactive games and other content
(including
without limitation poker and
gambling programming, teleshopping and
content for the interactive games service
known as 'The Poker Channel ' (hereinafter: "TPC") provided in the United
Kingdom,
WHEREAS, Zone4Play is the owner of all
rights, title,
and interests in and
to
one or more client and/or client-server
software applications compatible with
mobile wireless platforms , Internet platforms and interactive digital TV
platforms;
WHEREAS, Zone4Play through third parties can provide the service with a
bookmakers' permit and other services
required to provide online and interactive
fixed odds betting opportunities in
connection with such interactive games;
WHEREAS, TPC and its subsidiaries or
associates will provide or procure, inter
alia, a range of infrastructure
and technical
facilities for use in
connection
with the provision of broadcast fixed odds
games and interactive services;
WHEREAS, TPC desires to license
Applications from
Zone4play on a non-exclusive
basis and receive an exclusive customised version of the front end [look
and
feel] for distribution by Operator using one or more of the platforms to
Customers (as herein defined); and
WHEREAS, Zone4Play desires to grant such a non
exclusive license to TPC and to
design Customization Work for TPC; and
NOW THEREFORE, in consideration of the
foregoing premises, and mutual covenants,
promises and agreements herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
with the intention to be legally bound
hereby, the Parties agree as follows:
1. Definitions.
In this
Agreement:
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<PAGE>
1.1 "Application" shall mean,
subject to Clause 2.1, software applications and
any
related Intellectual
Property Rights that
enable Customers to
play,
Multiplayer Poker
and SMS Fixed Odds games (as further defined in
Appendixes
A and B respectively)
that are owned by Zone4Play or for which
Zone4Play
otherwise holds sufficient rights to grant the licenses set
forth herein
1.1 "Customers" shall mean the customer of TPC as further defined in
Appendixes
A & B;
1.2 "Effective Date" shall mean the date on which
this Agreement is signed by
all of the
Parties;
1.3 "Intellectual Property Rights" shall means all
patents, database
rights,
inventions, rights in
designs, copyright,
trade marks,
service marks,
trade
names, domain names, and all other intellectual property rights and
other
rights and forms of protection of a similar nature or effect which
may
subsist, anywhere in the world for the full term of
such rights and
any
extensions or renewals
thereof subsisting
prior to, at or after
the
Effective
Date (whether or not any of these
rights are registered,
and
including
applications and the right to apply for registration of any
such
rights as
registered rights, anywhere in the world);
1.4 "Services" shall mean customer support and
Customer Relation
Management
("CRM"),
infrastructure,
provision of a
merchant account and
e-wallet,
reporting,
design, provision of
the games engine and back office services
to be
provided and/or
procured by Z4P from
any third party in connection
with
the use which is made by the Customers of the Applications and
further
detailed in Appendixes A and B respectively;
1.5 TPC Trademarks" shall mean any trademarks,
service marks,
design marks,
symbols,
logos and/or other
indicia of source owned or used under license
by TPC,
and all goodwill associated therewith.
1.6 "Operator" shall mean The
Poker Channel in the United Kingdom
1.7 "Zone4Play Trademarks" shall mean any
trademarks, service
marks, design
marks,
symbols, logos and/or other indicia of
source owned or used under
license by
Zone4Play, and all goodwill associated therewith.
2. The Parties'
Obligations for Providing the Applications.
2.1 Zone4Play shall develop the Applications in accordance with a
specification and a
timetable (the
"Timetable"), each of
which shall be
agreed in
good faith between the Parties. Zone4Play shall provide at
least
one fully
functioning broadcast game Application of play for fun games
for
launch on
March 7, 2005 and
Application of play for real games for launch
on April
22nd , 2005. Zone4Play
shall customize the
look and feel of the
Applications exclusively for TPC using such of the TPC Trademarks
and such
other
materials (together,
the "TPC Materials") as shall be notified
by
TPC to
Zone4Play from time to time (such customization by Zone4Play
being
referred
to in this Agreement as the "Customization Work"). TPC shall
have
a right of
approval in its sole discretion over the final form of the
Applications
following
completion of
the Customization Work. The
Customization Work is
co-owned by both Parties and neither Party is able
to use it
without the consent of the other.
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2.2 Zone4Play shall use its best
endeavors to integrate the Applications and
the
Services and the technical infrastructure used by the Operator to
provide
services to their
Customers, all with
maximizing profits out
of
the
engagement
with the Operator and Products provided either to TPC
and/or to
the Customer.
2.3 Zone4Play shall favorably
consider to offer TPC
any new games it plans or
it
completes development.
2.4 Reports and Materials:
Zone4Play will provide the reports and materials to
TPC
2.5 Zone4Play and TPC shall
discuss in good faith the frequency and content of
reports
Zone4Play will provide.
2.6 Z4P and TPC shall
jointly own the
customer data relating to TPC Customers
under this
Agreement.
2.7 Z4P shall be responsible
for providing the
Services and for procuring the
availability of the necessary testing environment.
2.8 TPC agrees to assess feasibility and economics of launching the
Multiplayer Poker Application. Z4P will make this Application
available to
TPC
throughout the Term of this Agreement and under the same terms of
this
Agreement.
TPC agrees that for
the term of this Agreement the Multiplayer
Poker
Application
provided by Z4P shall be the sole
Poker application
launch on
TPC, further during
such term TPC will assess the launch of the
Application within 12
months of its Launch.
Notwithstanding to the forth
said it is
acknowledged
by TPC that for the
assessment of the
launch of
Multiplayer Poker
Application, Z4P shall
not provide TPC with respect to
such
application any Customization Work, the Multiplayer Poker
Application
and its
look and feel
customize version of
the front end is solely owned
by
Z4P.
2.9 TPC undertakes to launch SMS Fixed Odds and
maintain such on The Poker
Channel
for an average of 3 hours per day over a
period of one year from
Launch.
Thereafter
the Parties
shall review and discuss in good
faith.
This
undertaking
is fundamental to this
agreement and its breach will be
considered
as a material breach of this Agreement. TPC will discuss with
Z4P the
proposed broadcast
hours but it will ultimately have the right to
decide
broadcast hours and to change these when required.
2.10 TPC has the right to re-name the
games and or the Z4P
broadcast zone for
the
purpose of
differentiation, ease
of promotion to Customers and clear
signposting in the schedule.
3. Grant of License for
Distributing Applications.
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3.1 Zone4Play hereby grants to TPC, during the Term, a nonexclusive
license
and the
right to distribute where applicable. For the avoidance of doubt,
TPC shall
(pursuant to Clause 11) own all rights in Customisation Work
and
Zone4Play
shall not have or be
entitled to grant to any third party
any
rights in
the Customisation Work (and Zone4Play is shall entitled to
grant
rights to
third parties in respect of the Applications as they stood
prior
to the
Customisation Work having been carried out).
3.2 TPC hereby grants to
Zone4Play, during the Term, a limited, non-exclusive,
non-transferable
license to use the TPC
Materials solely to the extent
necessary
for Zone4Play to perform its undertakings under this Agreement
including
the Customisation Work pursuant to Clause 2.1.
4. Trademark License.
4.1 Zone4Play grants to TPC, during the Term, a worldwide, nonexclusive,
royalty-free license
to use the Zone4Play
Trademarks in online, print or
other
advertising for the purposes of promoting, selling, licensing, and
distributing the Applications and the Products to Operators and
Customers.
4.2 TPC acknowledges that all right, title and interest in and to the
Zone4Play
Trademarks,
including all goodwill
related thereto, are and
shall
remain owned solely and exclusively by Zone4Play and that
all usage
of the
Zone4Play Trademarks by or on behalf of TPC shall inure to the
benefit of
Zone4Play.
4.3 TPC agrees to comply with any and all usage guidelines provided by
Zone4Play
to TPC with
respect to the Zone4Play Trademarks, and shall
supply,
upon Zone4Play's
written request,
specimens of all
advertising,
marketing
and/or promotional materials in which a Zone4Play Trademark
appears to
Zone4Play for inspection and approval, which approval shall not
be
unreasonably withheld.
4.4 If Zone4Play has not
indicated its approval or rejection of such specimens
within
three (3) business days after receiving such specimens, such
specimens
shall be deemed
approved by Zone4Play. Zone4Play agrees to
provide
TPC a copy of its current trademark usage guidelines promptly
upon
execution
of this Agreement.
4.5 Zone4Play acknowledges that all right, title and interest in and to
the
TPC
Materials (including without limitation the TPC Trademarks),
including
all
goodwill related thereto, are and shall remain owned solely and
exclusively by TPC and
that all usage of the TPC Trademarks by or on
behalf of
Zone4Play shall inure to the benefit of TPC. Zone4Play agrees
to
comply
with any and all usage guidelines provided by TPC to Zone4Play
with
respect
to its use of the TPC Trademarks in the provision of the
Customisation Work.
5.
Royalty/Revenue-Sharing Payments. Revenues arising from the
provision of
the
Applications shall be shared in accordance with the terms specified
in
Appendixes
A and B respectively.
5.1 Within 30 working days of
the end of each month,
Zone4Play shall send TPC
a report
detailing the Net Revenues received from the Applications
during
the
previous calendar
month, any relevant third party Revenue
Share(s)
and, the
split between TPC and
Zone4Play of the remaining Net Revenues in
accordance
with revenue
sharing ratio decided
by the Parties and defined
in
Appendixes A and B respectively.
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<PAGE>
5.2 Zone4Play shall deliver TPC's share of the
remaining Net Revenues to TPC
upon
receipt of an appropriate invoice within 15 days of its
receipt.
6 Promotion,
Publicity and Press Releases.
TPC may, refer, in TPC's online, print or other advertising and promotional
materials, to the fact that Zone4Play's
applications are
accessible through TPC
using Zone4Play Trademarks as permitted in Clause
4 above without
disparaging
Zone4Play, its products, services, or affiliates, but always subject to any
regulatory restrictions.
No Party shall publicize the terms or the existence of this Agreement to any
third party without prior written consent from the other Parties
after their
review and approval of the form and content
of any publicity
release or other
press announcement. Zone4Play shall not imply or state
to any person or entity
that it is sponsored by, funded by, or in
any way associated with TPC other than
as authorized by TPC pursuant to this
Agreement. Similarly,
TPC shall not imply
or state to any person or entity that it is
sponsored by,
funded by, or in
any
way associated with Zone4Play other than as
authorized by Zone4Play pursuant to
this Agreement. This section shall not apply to official filing of reports
Zone4play is compelled to submit to the
regulatory bodies as a public company.
7 Representations
and Warranties.
8.1 By Zone4Play.
Zone4Play
hereby represents,
warrants and
undertakes
to TPC that:
(i)
Zone4Play has the
power and authority to enter into and perform its
obligations according to the terms of this Agreement; (ii)
Zone4Play
has no restrictions
that would
impair its
ability to perform
its
obligations and grant
all rights
contemplated by this
Agreement;
(iii) Zone4Play has
not and will not enter into any agreement that
is inconsistent with
its obligations
hereunder; (iv)
Zone4Play is
the owner or has obtained and currently holds valid and sufficient
rights, including
rights in third party Intellectual Property
Rights, to license the rights granted and/or the services
committed
to TPC herein and that
to the best of its
knowledge TPC's use
and
exploitation (and
any Customer's and/or Operator's use and/or
exploitation) of the
Applications
in the manner agreed
to by this
Agreement shall not
infringe the
Intellectual Property
Rights or
other rights of a third party
8.2 By TPC.
8.2.1 TPC
hereby represents, warrants and undertakes to Zone4Play that
it:
(i) has the power
and authority to enter into and perform its
obligations according
to the terms of this
Agreement; (ii) has
no
restrictions
that would
impair
its ability to perform its
obligations
contemplated by this
Agreement; and (iii)
has not and
will not enter into
any agreement
that is inconsistent with its
obligations hereunder
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<PAGE>
8.3 Disclaimer.
EXCEPT AS
OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE
FOREGOING
WARRANTIES
ARE THE ONLY
WARRANTIES
GIVEN BY EACH
PARTY AND ALL OTHER
WARRANTIES
OR CONDITIONS, WHETHER EXPRESS OR IMPLIED BY STATUTE OR
OTHERWISE,
ARE SPECIFICALLY
EXCLUDED BY THE
PARTIES, INCLUDING
WITHOUT
LIMITATION, IMPLIED
WARRANTIES
OF MERCHANTIBILITY OR FITNESS FOR A
PARTICULAR
PURPOSE.
9. Confidentiality.
9.1 The Parties agree that during the Term there may be a
need to exchange
certain
confidential
or proprietary information. In this Agreement,
"Confidential Information" shall be defined as the terms of this
Agreement
and any
confidential,
trade secret, or other proprietary information
disclosed
by any Party (the
"Disclosing
Party") to another Party (the
"Receiving
Party") under this
Agreement.
Confidential
Information shall
not
include information that (i) is public knowledge at the time of
disclosure, (ii) was known by the Receiving Party before disclosure
by the
Disclosing
Party, or becomes public knowledge or otherwise known to
the
Receiving
Party after such disclosure, other than by breach of the
confidentiality
obligations of this Agreement, or (iii) is independently
developed
by the Receiving Party by persons without access to
Confidential
Information of the Disclosing Party.
9.2 The Receiving Party shall during the Term and following expiry or
termination of this Agreement limit disclosure of Confidential
Information
to such of
its employees
and agents who h
