IP RIGHTS
TRANSFER AGREEMENT
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INTELLECTUAL PROPERTY RIGHTS
TRANSFER AGREEMENT
Octavian
International Limited
hereinafter
referred to as " Octavian "
319, 28
th October Street
hereinafter
referred to as " Ziria "
25 Ayias Zonis
Str Suite 167
hereinafter
referred to as " HB "
Austrian
Gaming Industries GmbH
hereinafter
referred to as " AGI "
as
follows:
IP RIGHTS TRANSFER
AGREEMENT
Octavian,
Ziria, HB and AGI (together the " Parties ") mutually
declare and agree that:
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Octavian
asserted to be the sole owner of all present and future local,
foreign or international patents, trade marks, service marks, trade
names, design rights, database rights, copyrights (including
copyright in software), rights in inventions and topography rights
whether or not registered, including all applications and rights to
apply for registration (hereinafter referred to as " IP
Rights ") in all products listed in Annex A (these
products and any part thereof hereinafter referred to as the "
Products ");
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Octavian
asserted to be the owner of all IP Rights in and to hold ownership
title to all materials related to the Products (these materials and
any part thereof hereinafter referred to as the " Materials and
this shall include Software Materials ") as far as necessary to
perform those IP-Rights in the Products;
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“Software Materials”
means the Source and Object codes
for (i) all current and future modifications and updates to version
3.70 the Advanced Gaming Engine, including version 4.00 and all and
any subsequent versions. (ii) all software embedded within the
Products as are necessary to be delivered or deposited to comply
with this Agreement and (iii) any necessary software documentation
to perform the IP-Rights in the Products under this
Agreement.
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they have
entered into a second loan agreement dated the same date as this
Agreement (hereinafter referred to as the " Loan
Agreement ");
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when entering
into the Loan Agreement, the Parties intended that all the IP
Rights of Octavian in the Products and Materials are transferred to
AGI under the Condition as set forth in Article 1 of this
Intellectual Property Rights Transfer Agreement (the "
Agreement ");
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the Parties now
want to confirm this conditional full transfer of IP Rights in the
Products and Materials in writing.
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NOW, THEREFORE,
THE PARTIES AGREE AS FOLLOWS:
The transfer of
IP Rights in the Products and Materials pursuant to Article 2
of this Agreement shall be conditional upon an Event of Default (as
defined in the Loan Agreement) having occurred (hereinafter
referred to as the " Condition ").
Article
2 Full
Transfer of all Rights in the Products
The Parties
hereby confirm and agree that all IP Rights and the ownership of
Octavian in the Products and Materials are transferred to AGI upon
AGI giving notice that (i) the Condition has been fulfilled; (ii)
the IP Rights in the Products and Materials will be fully
transferred to AGI 5 Business Days after receipt of the notice by
Octavian (in accordance with the notice provisions of this
Agreement); and (iii) setting out the details required pursuant to
Article 5 below (the " Transfer Notice ").
IP RIGHTS TRANSFER
AGREEMENT
This transfer
shall be without limitation with regard to content, duration and
area (territory), including possible extensions of the duration of
copyright, including the right to identify itself as producer of
the Products and including the right to possible new exploitation
methods and rights, and – insofar as the transfer of the full
IP Rights in the Products and Materials under any jurisdiction may
not be possible – accordingly, with regard to content,
duration and area (territory) unlimited, exclusive, transferable
and irrevocable rights of use and/or rights to utilize the IP
Rights in the Products and Materials are granted to AGI. Therefore,
AGI shall have acquired the exclusive unlimited right in and/or
right to utilize the IP Rights in the Products and Materials.
Octavian hereby irrevocably confirms that AGI is entitled without
restrictions and irrevocably to all the IP Rights in the Products.
AGI is therefore in particular exclusively entitled to the use of
the IP Rights in the Products and Materials by itself or any third
party, true to original or processed by any existing or future
possible method, worldwide and without time limitations, for any
purpose, in particular to – irrespective of method and
quantity – copy, distribute copies, further develop and
change, disseminate, lease, send, perform, make available to the
public and/or to transfer or grant these rights entirely or in part
to third parties and/or grant (sub-)licences.
The provision
of this paragraph are subject only to any rights of use granted to
third parties by Octavian in the ordinary course of business (being
distributing and selling the Products and other gaming products to
distributors to distribute said Products or other gaming products
and end users to use said Products and other gaming products as end
user, hereinafter “Octavian´s
Business”.
AGI and
Octavian acknowledge that AGI has the benefit of the First Transfer
Agreement (as defined in the Loan Agreement) in relation to the AGE
3.70 IP Rights (as defined in the Loan Agreement)
There is no
obligation of use by AGI but it is intended that AGI uses
reasonable efforts to exploit the IP Rights in the Products and
Materials transferred to it during the Protected Period pursuant to
Article 5. AGI shall not be obliged to affix any reference to
the author of the Products.
Article
3 Transfer
of Rights in the Products, Materials and Software
Materials
AGI, Octavian
and NCC Escrow International Limited, acting as escrow agent
(the " Escrow Agent ") entered into an escrow agreement
on 30 October 2008 (the " Escrow Agreement ") and pursuant
to the Escrow Agreement, Octavian hereby confirms
to AGI that it shall place in escrow, the AGE Modifications (as
defined in the Loan Agreement) promptly upon the same being
finalised.
IP RIGHTS TRANSFER
AGREEMENT
Upon dispatch
of the Transfer Notice in accordance with Article 2, AGI shall be
entitled to immediately notify the Escrow Agent in writing that the
Condition has been fulfilled and notice has been given to Octavian
that the IP Rights in the Products and Materials, including
Software Materials will be transferred on the date set out in the
Transfer Notice.
Upon receipt of
such notice, the Escrow Agent shall hand over the Software
Materials to AGI without undue delay in order to transfer the
Software Materials to AGI.
Upon transfer
of the IP Rights in the Products and the Materials, including
Software Materials to AGI, AGI shall be entitled to use the IP
Rights in the Materials including Software Materials as far as
necessary to perform the IP-Rights in the Products.
Article
4 Compensation
for the Transfer of Rights and Materials
The transfer of
the IP Rights in the Products and Materials hereunder shall become
valid upon fulfilment of the Condition and service on the Transfer
Notice in accordance with Article 2 and shall occur on the date set
out in the Transfer Notice. It serves as security for the full
settlement of claims by AGI out of or in connection with the Loan
Agreement and this Agreement.
Octavian
therefore has no claim for any compensation, regardless of the
value of the transferred rights today or in the future. Any right
for rescission of this Agreement or any claim for invalidation or
avoidance or adjustment of this Agreement including without
limitation for reasons of error, change of circumstances,
frustration of contract or on the basis of leasio enormis
(Sec 934 ABGB) shall be excluded.
Article
5 Protected
Period
This Article 5
shall apply in the event that the IP Rights in the Products and
Materials are transferred to AGI in accordance with Article 2
(other than where such transfer occurs as a result of an Event of
Default under clause 6.1.2 of the Loan Agreement). In the Transfer
Notice, AGI shall set out the amount of the Loan (plus all accrued
but unpaid interest thereon) which is outstanding in accordance
with the Loan Agreement at the date that the transfer occurs in
accordance with Article 2.
For a period of
12 months following the transfer of the IP Rights in the Products
and Materials pursuant to Article 2 (the " Protected
Period "), it is intended that AGI uses reasonable efforts to
exploit the IP Rights in the Products and Materials transferred to
it provided always that for the Protected Period, AGI shall not
transfer, licence, assign, pledge or otherwise grant rights to any
person in respect of the IP Rights in the Products and Materials,
other than in the ordinary course of business, which, for the
avoidance of doubt and without limitation shall include. the right
also within the Protection Period for AGI to license the
IP Righ
