DISTRIBUTION
AGREEMENT
PokerTek, Inc.
("PokerTek")
and
Aristocrat International Pty.
Limited and its Affiliates
DISTRIBUTION
AGREEMENT
THIS
AGREEMENT is made on the
24 th day of
November
2008.
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ARISTOCRAT
INTERNATIONAL PTY. LIMITED (ABN 46 000 148 158) of 71
Longueville Road, Lane Cove, New South Wales, Australia, 2066 and
its Affiliates ("Aristocrat")
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POKERTEK,
INC . a North Carolina
corporation with its principal office at 1050 Crews Road, Suite J,
Matthews, NC 28105 ("PokerTek")
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A.
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PokerTek and
Aristocrat (the “Parties”) entered into a Distribution
Agreement on 21 January 2006 (the “Previous
Distribution Agreement”). The Parties have agreed
to revise the terms of the Previous Distribution Agreement, as set
out herein. The Parties agree that the terms and
conditions of this Agreement supersede and replace all terms and
conditions of the Previous Distribution Agreement.
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B.
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PokerTek is the
designer of the Products.
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C.
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Aristocrat
wishes to distribute, market, enter into Customer Agreements, and,
with the written consent of PokerTek, have the option to
manufacture the Product in the Territory.
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D.
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PokerTek has
agreed to grant and Aristocrat accepts, the right to distribute,
market, enter into Customer Agreements, and, with the consent of
PokerTek, to manufacture the Product in the Territory on the terms
of this Agreement.
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E.
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PokerTek has
agreed to grant and Aristocrat accepts, the right to license
PokerTek’s Intellectual Property Rights in the Products to
Customers under the Customer Agreements and to Sub-Distributors
under Sub-Distribution Agreements where appropriate.
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It is agreed
as follows:
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1.
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Definitions
and Interpretation
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1.1 Definitions
The following definitions apply unless the
context requires otherwise:
Affiliates means such corporate entities in the Aristocrat
Group as are signatories to this Agreement. The Parties
agree that further Aristocrat Group companies may become party to
this Agreement upon signature of a Deed of Variation executed by
both Parties.
Agreement means this agreement and attached schedules as
may be amended or updated from time to time between the Parties
under this agreement.
Approval means any licence, permit, consent, agreement,
requirement, approval, authorisation or form of good standing of
any kind required by any Regulator or Gaming Authority whether
relating to all or any Product or this Agreement or the laws of any
country into which the Product will be imported, rented or from
which the Product will be exported.
Aristocrat Group means Aristocrat Leisure Limited and any of its
Related Bodies Corporate.
Aristocrat's Documentation
means written information
drawings, technical, operating and service manuals, diagrams,
drawings, and any other documents created by Aristocrat relating to
or used in connection with the manufacture, distribution, marketing
and sale of the Product and whether produced in a visible form or
stored or recorded in another manner.
Aristocrat's Intellectual Property
Rights means
any and all intellectual and industrial property rights in
Aristocrat's Documentation and contained in Aristocrat's
distribution of the Product throughout the world including
copyright (including future copyright and rights analogous to
copyright), moral rights, inventions (including patents), trade
marks, service marks, designs and circuit layouts whether or not
now existing and whether or not registrable including any right to
apply for the registration of such rights and all renewals and
extensions.
Business
Case Threshold Test in relation to any jurisdiction means a
qualitative evaluation, in the Parties’ mutual discretion and
following Aristocrat’s reasonable and diligent inquiries, of
the key business factors associated with the commercialization or
use of the Product under any future Customer Agreements in that
jurisdiction including, but not limited to, sales potential, profit
potential, costs and market entry, taxation rates, effects on other
jurisdictions, and likelihood of jurisdictional
Approval.
Business
Day means a
weekday on which banks are open for business in the city specified
in the "Address" section of Aristocrat's details in the Party
Information.
Commencement Date means 21 January 2006.
Confidential Information
means all information, data and
materials, whether recorded or embodied in electronic, written or
three dimensional form or otherwise relating to the Product and
Aristocrat's Documentation or PokerTek's Documentation, proposed
new designs or products, existing and prospective clients, sales,
know how, pricing, trade secrets, marketing or promotion plans, the
terms of this Agreement and any other information relating in any
way to the business affairs of Aristocrat or PokerTek, excluding
information that is in the public domain other than as a result of
breach of this Agreement.
Control for the purposes of this Agreement means the
capacity of one entity to determine the outcome of decisions about
the financial, operating and management policies of another entity
(whether by ownership of securities or partnership or other
ownership interests, by contact or otherwise) and includes any
ability to exert significant influence.
Customer means any person or entity who expresses
an interest in the Product or actually enters into a Customer
Agreement.
Customer
Agreement means the
agreement between Aristocrat and the Customer for the use and
installation of the Product.
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Subject to the
provisions of clause 14.1(b), a breach of the terms of this
Agreement by a Party;
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If either Party
has an insolvency officeholder appointed over its undertaking or
assets or any part thereof, or goes into liquidation (other than
for the purpose of and followed by a solvent reconstruction or
amalgamation) or takes any steps, or has any steps taken against it
or in respect of it, in relation to its winding up, deregistration
or dissolution or is unable to pay its debts as and when they fall
due or stops or suspends or threatens to stop or suspend payment of
all or a class of its debts or enters into or proposes any
composition or arrangement with its creditors or any of them or any
event occurs analogous to the foregoing; or
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a change of
Control in relation to a Party.
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in relation to
a Product any material failure of any item of that Product which
substantially effects its operation or its ability to comply with
the requirements of any applicable Gaming Authority or Regulator;
and
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in relation to
services, the negligent performance of the relevant
services.
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Fee
Schedule means the
fee schedule attached in Schedule 3 to this Agreement.
Gaming
Authority means a
government or governmental body, agency or authority of any kind
with power to approve rights in respect of:
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manufacture,
distribution, import/export, marketing, and sale or use of gaming
machines;
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gaming,
wagering, lotteries or similar activities; or
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the business
activities of a Party.
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Law means any principle at common law or in equity
and any requirement under any legislation, rule, instrument, code
of practice, technical standard, proclamation, ordinance or by law,
present or future, whether State, Commonwealth or
otherwise.
Lease
Fee means the fee
charged by Aristocrat to the Customer pursuant to a Customer
Agreement under the Product Rental Model.
License
Fees means any
license fees payable by Aristocrat to PokerTek pursuant to the Fee
Schedule.
Marks means the trade marks, service marks, logos or
other intellectual property notified to Aristocrat in accordance
with clause 13.
Outright
Purchase Model means
a model where a Product is sold outright to a Customer,
incorporating a perpetual Software
licence. Ownership of the Product (with the
exception of the PokerTek Intellectual Property Rights which are
licensed to the Customer under the Customer Agreement) at all times
transfers to the Customer, pursuant to clause 9.1(b).
Parts means parts and components of the
Products.
Party Information means each Party's address for service set out
in Schedule 1.
PokerTek's Documentation
means written information drawings,
technical, operating and service manuals, diagrams, drawings, and
any other documents created by PokerTek relating to or used in
connection with the Product and whether produced in a visible form
or stored or recorded in another manner.
PokerTek's Intellectual Property
Rights means any and
all intellectual and industrial property rights in the Product, the
Software and PokerTek's Documentation throughout the world
including but not limited to copyright (including future copyright
and rights analogous to copyright), moral rights, inventions
(including patents), trade marks, service marks, designs and
circuit layouts whether or not now existing and whether or not
registrable including any right to apply for the registration of
such rights and all renewals and extensions.
Product means the items listed in the Product Schedule
and any ancillary hardware and software and related products
manufactured, distributed or supplied by PokerTek during the Term
to enhance or work in concert with the items listed in the Product
Schedule. For the avoidance of doubt, PokerTek at all times retains
Intellectual Property Rights in the Software contained in the
Product.
Product
Price means the price
charged by PokerTek to Aristocrat for the sale of the Product,
excluding any License Fees. The Product Price will be
calculated in accordance with the Product Schedule
hereto.
Product
Rental Model means a
model where a Product is leased or rented to a Customer,
incorporating a revocable Software
licence. Ownership of the leased or rented Product
(with the exception of the PokerTek Intellectual Property Rights
which are licensed to Aristocrat under this Agreement) all times
belongs to Aristocrat once the Product Price has been paid to
PokerTek.
Product
Schedule means the
Product schedule attached in Schedule 2 to this
Agreement.
Regulator includes a government or a governmental,
semi-governmental or judicial entity or authority. It also includes
a self-regulatory organisation established under statute or the
rules of a stock exchange with power over a Party.
Related
Bodies Corporate means, when used with reference to a Party, any
entity that directly or indirectly Controls or is Controlled by or
is under common Control with that Party.
Restricted Product means a product having electronic terminals at a
physical and traditional poker table, involving two or more players
banked at the table competing against each other for a common prize
pool in a regulated environment. A traditional table
poker game includes, but is not limited to, the game of Texas Hold
‘em.
Securities Purchase Agreement
means the securities purchase
agreements dated on or about the date of this Agreement between
Aristocrat and certain shareholders of PokerTek for the acquisition
by Aristocrat of approximately nine hundred and forty six thousand
eight hundred (946,800) PokerTek shares.
Software means all software programs, data bases and
data-conversion tools as may be necessary from time to time in
order to operate the Products which are licensed by PokerTek to
Aristocrat under this Agreement, including any upgrades or
enhancements thereto to enable Aristocrat to perform its
obligations under this Agreement.
Sub-Distributor means a third party distributor appointed by
Aristocrat to distribute the Product in any jurisdiction pursuant
to clause 4.7(a).
Sub-Distribution Agreement
means the agreement between
Aristocrat and its Distributor for the onward distribution to
Customers.
Term means the period of four (4) years from the
Commencement Date unless terminated or extended in accordance with
the terms of this Agreement.
Territory means the world other than Canada and the United
States, and does not include cruise ships, wherever located. The
Territory may be added to by written amendment to this Agreement in
the sole discretion of the Parties, including the determination as
to whether the grant of distribution rights in such additional
regions shall be exclusive or non-exclusive.
Headings are
for convenience only and do not affect interpretation. The
following rules apply unless the context requires
otherwise.
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(a)
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The singular
includes the plural, and the converse also applies.
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(b)
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If a word or
phrase is defined, its other grammatical forms have a corresponding
meaning.
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(c)
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A reference to
a person includes a corporation, trust, partnership, unincorporated
body or other entity, whether or not it comprises a separate legal
entity.
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(d)
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A reference to
a clause is a reference to a clause of this Agreement.
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(e)
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A reference to
an agreement or document (including a reference to this Agreement)
is to the agreement or document as amended, supplemented, novated
or replaced, except to the extent prohibited by this Agreement or
that other agreement or document.
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(f)
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A reference to
writing includes any method of representing or reproducing words,
figures, drawings or symbols in a visible and tangible
form.
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(g)
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A reference to
a Party to this Agreement or another agreement or document includes
the Party's successors, permitted substitutes and permitted assigns
(and, where applicable, the Party's legal personal
representatives).
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(h)
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A reference to
legislation or to a provision of legislation includes a
modification or re-enactment of it, a legislative provision
substituted for it and a regulation or statutory instrument issued
under it.
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(i)
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A reference to
conduct includes an omission, statement or undertaking, whether or
not in writing.
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(j)
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A reference to
dollars and $ is to the currency of the United States of
America.
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(k)
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A reference to
a right or obligation of any two or more people comprising a single
party confers that right, or imposes that obligation, as the case
may be, on each of them severally and each two or more of them
jointly. A reference to that party is a reference to each of those
people separately (so that, for example, a representation or
warranty by that party is given by each of them
separately).
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(l)
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Mentioning
anything after includes, including, for example, or similar
expressions, does not limit what else might be included.
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(m)
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Nothing in this
Agreement is to be interpreted against a Party solely on the ground
that the Party put forward this Agreement or a relevant part of
it.
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(n)
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A reference to
an amount for which a person is contingently liable includes an
amount that that person may become actually or contingently liable
to pay if a contingency occurs, whether or not that liability
actually arises
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(a)
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Subject to
clause 5.2, PokerTek appoints Aristocrat for the Term and on the
terms of this Agreement, to be its sole and exclusive distributor
of the Product within the Territory and to market and distribute
the Product within the Territory.
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(b)
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If any
Regulator withdraws, suspends or fails to approve any of the
Product, this Agreement will continue to apply to the remaining
Product for the remainder of the approved jurisdictions in the
Territory.
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(a)
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This Agreement
commences on the Commencement Date and will continue for the Term
unless terminated in accordance with this Agreement.
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(b)
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On the expiry
of the Term, this Agreement will continue for an additional nine
(9) year term, subject to mutual agreement. Thereafter,
the Agreement will continue month to month until terminated by
either Party on the giving of one (1) month's written notice to the
other or until terminated in accordance with this
Agreement.
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(a)
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must, at its
own expense use reasonable endeavours to promote and enter into
Customer Agreements for the Products in the Territory, it being
understood that failure to promote the Products consistent with the
level of promotion and support Aristocrat provides for its own
products shall constitute less than reasonable
endeavours;
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(b)
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may manufacture
or procure the manufacture of the Products ordered by Customers
under Customer Agreements for the Products, and in such
circumstances Aristocrat must advise PokerTek of the cost of
production for each Product, install, set up and test any Products
supplied to Customers in the Territory in a proper and efficient
manner for the benefit of Customers if requested by a Customer.
Aristocrat and PokerTek will work together to identify the most
efficient and highest quality manufacturer(s), with the selection
of the manufacturer(s) being subject to the approval of both
Parties. PokerTek shall have the right to pre-approve such
arrangements on a case-by-case basis, such approval not to be
unreasonably withheld.
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The previous
paragraph notwithstanding, Aristocrat agrees that it shall provide
PokerTek at least twelve (12) months notice prior to entering into
any manufacturing relationship, such that PokerTek does not make
supply chain commitments based on Aristocrat sales forecasts,
followed by Aristocrat choosing to enter into a manufacturing
relationship.
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(c)
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must, at its
own expense where agreed with the Customer, provide Customers who
have acquired the Product with an after sale repair and maintenance
service in respect of any Products in the Territory during the
Term; and must maintain a sufficient number of trained post-sales
repair engineers necessary to repair and maintain Products supplied
by Aristocrat under a Customer Agreement in a timely and orderly
manner. Aristocrat may provide, or may appoint an agent
to provide, training to the Customer’s own technicians in
order that the Customer may perform after-sale repair and
maintenance directly.
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(d)
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agrees to pay
PokerTek the Product Price and any License Fees as set forth in
this Agreement. Aristocrat shall furnish PokerTek, along
with each payment made to PokerTek as required by this Agreement, a
list of Customers, and any other information as the Parties may
agree from time to time. During the term of this Agreement, and for
one (1) year thereafter, PokerTek may, upon reasonable request and
notice to Aristocrat, audit Aristocrat's records relating to
Customer Agreements and costs and receipts associated therewith.
Such an audit shall not require documents dating back further than
5 years, and shall be conducted during normal business hours at a
time and place acceptable to both Parties. Such audit will be
conducted at PokerTek's expense, unless the audit reveals that
Aristocrat has underpaid fees by more than five percent (5%) of the
fees actually paid to PokerTek, in which case Aristocrat shall in
addition to the deficiency, also pay PokerTek's reasonable costs of
conducting the audit. PokerTek shall not be entitled to perform
such audits more than once every twelve (12) months.
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Nothing in this
Agreement:
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(a)
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gives either
Party the power to bind the other to any contract or arrangement of
any kind;
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(b)
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will constitute
or create a partnership, agency, employment or joint venture
relationship between Aristocrat and PokerTek;
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(c)
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will prevent
Aristocrat from manufacturing, selling, promoting, distributing or
entering into any other commercial arrangements in relation to
products:
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which is not a
Restricted Product; or
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which have been
developed or were in development by Aristocrat prior to the date of
signature of this Agreement; or
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which are
subsequently added to this Agreement pursuant to clause
5.1(b),
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except that
during the Term and for a period of two (2) years thereafter,
subject always to clause 4.2(c)(ii), neither Aristocrat, nor any of
its Affiliates or Related Bodies Corporate, will manufacture, sell,
promote or distribute any Restricted Product which competes
directly with the Product.
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The Parties
agree that the non-compete provisions set out in paragraph (c)
above will not apply in the event Aristocrat
terminates pursuant to clause 8.3(a), or this Agreement
becomes non-exclusive in nature pursuant to clause 5.2.
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Aristocrat
will, at its own expense and in its sole discretion:
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(a)
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investigate
distribution opportunities in the Territory, visit Customers and
potential Customers to increase the distribution of the
Product;
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(b)
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submit a
written report at the end of every 6 month period to PokerTek
showing
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details of
Product distribution and forecasts and suggestions concerning
the
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Products and
activities of competitors within the Territory;
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(c)
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develop and
carry on satisfactory promotional programmes to the extent these
are permitted within the local jurisdiction, including mailing
list, advertising and participation in trade, professional and
other meetings, exhibitions and fairs; and
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(d)
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train its sales
force to sell the Products effectively.
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Aristocrat must
ensure that each Customer who is supplied with a Product enters
into and is bound by a Customer Agreement which contains terms
which are consistent with Product recall provisions and regulatory
and compliance obligations under this Agreement that materially
conform to an agreed format for Customer Agreements, subject to
local jurisdictional requirements. PokerTek shall have
the opportunity to approve any material deviations from the agreed
format, such approval not to be unreasonably withheld.
Aristocrat must
advise PokerTek of any claims or complaints concerning the Products
and, if requested by PokerTek, forward a written report setting out
all its knowledge concerning any claim or complaint.
Subject to the
relevant jurisdiction meeting a Business Case Threshold Test,
Aristocrat must at its own cost apply for and use reasonable
endeavours to obtain and maintain such Approvals as are required to
allow Aristocrat to fulfil its obligations under this Agreement. In
the event Aristocrat or, where relevant, the Sub-Distributor for
that Territory fails to obtain and maintain such Approvals in a
particular jurisdiction in a mutually agreed timeframe, Aristocrat
agrees that PokerTek may facilitate sales in such jurisdictions
through any other means in its discretion, including but not
limited to direct sales or the appointment of an alternative
distributor, without prejudice to Aristocrat’s rights to
continue to seek such Approvals and if successful, continue to
operate in such jurisdictions on a non-exclusive basis.
However, the
previous paragraph notwithstanding, in the event that Aristocrat
has failed to obtain and maintain such Approvals and where PokerTek
has elected to proceed directly or with a second source, Aristocrat
agrees that it shall not engage with customers or potential
customers in such country or jurisdiction without PokerTek’s
prior consent, which shall not be unreasonably withheld.
Aristocrat may,
at its own expense:
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Appoint, upon
PokerTek’s prior written consent, not to be unreasonably
withheld, a third party Sub-Distributor to distribute the Products
in any jurisdiction in the Territory, provided the Sub-Distributor
agrees to lease/sell to the Customer on terms materially in
accordance with the terms of Aristocrat’s standard Customer
Agreements and provided the terms upon which the Distributor is
appointed are agreed by Aristocrat and PokerTek in
writing;
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Offer a free
trial period to Customers of up to 90 days, provided this is
clearly documented in the Customer Agreement; and
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In its sole
discretion, elect to re-deploy (i.e. lease or
sell) Products to new Customers upon the expiry of
Customer Rental Agreements, with Licence Fees payable to PokerTek
to be calculated at 50% of revenue received from Customers,
assuming the initial cost of the Product has been recouped by
Aristocrat. Should this not be the case, apportionment
will be as agreed by the Parties from time to time, until
recoupment has occurred. Aristocrat shall be entitled to
deduct the cost of Product refurbishment from any licence fees
payable to PokerTek
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5.1
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Right to
vary the Products
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PokerTek may
vary the Product Schedule at any time either by:
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(a)
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other than in
respect of PokerPro, deleting a specified product or class of
products from the Product Schedule if PokerTek ceases to
manufacture that product or class of products, provided always that
PokerTek give Aristocrat reasonable prior written notice of any
cessation of such manufacture. PokerTek shall however
provide Aristocrat with quarterly R&D roadmap reviews, in a
forum to be agreed by the Parties, in order to facilitate maximum
visibility for Aristocrat of the PokerTek R&D
schedule; or
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(b)
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other than in
relation to Products which are ancillary to Products already listed
in the Product Schedule, the addition to the Product Schedule of a
further product or class of Products, subject to PokerTek obtaining
Aristocrat’s prior agreement in writing, such agreement not
to be unreasonably withheld.
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5.2
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Right to
Revoke Aristocrat’s Exclusivity
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PokerTek shall
have the option to revoke Aristocrat’s exclusive status as
distributor of the Products:
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should
Aristocrat fail to install a minimum of one hundred (100) units of
the Product by 1 January 2009. In such circumstances
PokerTek will have the right, but not the obligation, to pursue
second source distributors where it reasonably considers it is
appropriate to do so;
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should
Aristocrat fail to install a minimum of two hundred (200) units of
the Product by 1 January 2010. In such circumstances PokerTek will
have the right, but not the obligation, to pursue second source
distributors where it reasonably considers it is appropriate to do
so;
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where PokerTek
considers in its reasonable discretion that Aristocrat is failing
to comply with its obligations under clauses 4.1(a) and 4.6 of this
Agreement in any individual country or jurisdiction. In
such circumstances, PokerTek must first provide written notice to
Aristocrat, detailing its concerns and the remedial action
required. In the event Aristocrat fails to perform the
remedial action within 90 days from receipt of the written notice
to PokerTek’s reasonable satisfaction, PokerTek may then
elect to pursue second source distributors in that country or
jurisdiction. In the event that PokerTek so elects, Aristocrat
agrees that it shall not engage with customers or potential
customers in such country or jurisdiction without PokerTek’s
prior consent, which shall not be unreasonably withheld.
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Where the
Parties otherwise agree in writing to revert to a non-exclusive
status in any particular jurisdiction.
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but for the
avoidance of doubt, Aristocrat reserves the right to distribute the
Product on a non-exclusive basis in any such jurisdiction, provided
that PokerTek does not revoke such right pursuant to the terms of
this Agreement.
PokerTek will at its own
expense:
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Until such time
as an alternative manufacturer is identified in accordance with
clause 4.1(b), manufacture or procure the manufacture of the
Products on the following terms:
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PokerTek must
ensure that the quality of Products is sufficient and fit for the
use to which they will be put by Aristocrat and must use reasonable
commercial efforts to ensure and procure that Aristocrat is
entitled to the full benefit of the manufacturer’s warranties
and indemnities in respect of all parts. In the absence
of agreement to the contrary, PokerTek must use reasonable
commercial efforts to ensure that all Products must comply and
conform in all respects with:
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all Approval
and certification requirements relating to the Product necessary or
agreed to be desirable under applicable international
law;
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all applicable
Australian Standards which are relevant to the Product or otherwise
the Australian standards agreed between the Parties;
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all EU
Directives which have been notified to PokerTek.
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PokerTek
warrants that it has used reasonable commercial efforts to ensure
that all Products at the time of delivery are free from defects in
design, materials or workmanship and will be manufactured to fully
comply with the requirements set out in sub-clause i)
above.
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PokerTek will
provide a 6 month warranty against faulty or defective Products
and/or Parts from the date of delivery to Aristocrat of the
Products and/or Parts. In the event Aristocrat or the
Customer identifies a faulty or defective Product or Part during
the warranty period, PokerTek agrees to provide a replacement as
soon as reasonably possible.
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PokerTek must
maintain effective quality control procedures to ensure early
warning, corrective action notification and follow up, including if
necessary obtaining products from alternative sources;
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In the event
any Product or consignment of Product does not meet the
requirements set out in sub-clause i) above:
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PokerTek must
promptly, upon demand by Aristocrat, reimburse Aristocrat for any
amount paid by Aristocrat and for the actual and reasonable costs
and expenses incurred in arranging the return of the
Products;
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PokerTek must
bear all costs involved in or arising in relation to modifying and
reworking the Product to comply with the requirements set out in
sub-clause i) above;
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Where a Product
is updated, modified or produced in a new version, PokerTek must
provide Aristocrat with all information and documentation,
including technical data, specifications, manuals and software
documentation relating to the Product;
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where
Aristocrat considers that any Product or Part is unsatisfactory,
defective, of inferior quality or workmanship, Aristocrat may,
without prejudice to any other right or remedy available to
Aristocrat, reject those Products by notice in writing to PokerTek
setting forth in reasonable detai
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