SOFTWARE LICENSE
AGREEMENT
This Software License Agreement
("Agreement") is entered into as of this ______
day of _______________ 2005 by and between Fortuna UK a a to-be-formed UK
Corporation (the "Licensee") located at 7 College Mansions, Winchester
Ave.
London, England, NW67TYand Mobile Gaming Now, Inc., a British Columbia
corporation (the "Licensor") located at #1505-409 Granville Street, United
Kingdom Building, Vancouver, BC, Canada, V6C 1T2.
RECITALS
A. Licensor licenses certain computer software utilized for the operation
of Internet and Wireless gaming services (the "Software").
B. Licensee desires to operate an Internet / Mobile Gaming Operation and
desires
to obtain a limited license to utilize the Software.
C. Accordingly, Licensor hereby licenses the Software to Licensee and
Licensee
hereby licenses the Software from Licensor upon the terms
and
conditions
set forth herein.
AGREEMENT
In consideration of the foregoing and following terms, covenants,
promises,
premises and conditions, and for other good and valuable
consideration, the
sufficiency, adequacy and receipt of which are
hereby acknowledged, the parties
hereby agree as follows:
1. RECITALS.
Recitals are a material part of this Agreement.
2.
DEFINITIONS. For
purposes of this Agreement, the following terms
shall have
the following meanings:
a. Authorized
Client Provider: "Authorized Client Provider"
shall mean
a person who has, by virtue of a Client Provider
Authorization issued
by the Commission, been authorized to conduct
interactive gaming
and interactive gaming
related activities within or
from the Territories.
b. Confidential
Information.
"Confidential
Information"
shall
mean, without
limitation,
material, information,
documents, software,
plans, strategies,
customer and vendor lists, marketing
information,
studies and
other information owned, licensed,
developed or otherwise
proprietary in
nature in the
possession of Licensor, Licensee or their
agents, respectively,
which is not generally available to or used
by
others or the utility or value of which is not generally known
or
recognized as a standard practice, whether or not the underlying
details
are in the public domain.
c. Games. "Games" shall mean Texas Holdem Poker. (Games are
subject to
change)
d. Hardware.
"Hardware"
shall mean all the necessary computers,
servers, routers,
cabling, monitors,
hard drives, back-up systems, and
other equipment,
as required to
properly store, distribute and run the
Software. Provision
and maintenance of all Hardware shall
be the sole
responsibility of
the Licensee.
e. Interactive
Gaming License. "Interactive Gaming License"
shall mean
a license issued by the Kahnawake Gaming Commission
for
hosting at certified
premises for the purpose of conducting interactive
gaming or interactive gaming related
activities wholly situated within
the Mohawk
Territory of Kahnawake.
f. Internet
/ Mobile Gaming Operation. A comprehensive term used
to describe the
Licensee's complete online gaming business as set forth
under this
Agreement.
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g. MGN Mobile Gaming Platform." MGN Mobile Gaming Platform
software "
shall mean a stand alone, turn-key gaming system that
facilitates the
playing, administration and management of games of
chance or skill online or on a mobile handset.
h. Software.As
described in Schedule A which includes all
software
and related application as well as any
data that the Licensor
agreed on in the terms of this agreement. And will use the language
that
is selected
on Schedule A. Any
additional request from the Licensee on
the software development, new games or new marketing systems must
have a
separate agreement
and quote for development.
i. User. An individual that utilizes the Software operated by
the Licensee.
j. Website.
A wireless interface website created by the Licensor
- if so desired by the
Licensee - that serves as the Licensee's primary
portal to the
Software. The URL for the Website is listed in Schedule B
of this Agreement.
3. SOFTWARE
LICENSE. Licensor hereby licenses to Licensee the
Software on the terms
and conditions contained herein for the period of
this Agreement.
Such Software License is granted on a
non-exclusive,
non-transferable, non-assignable basis. See Schedules A through H.
Other
schedules may
be attached.
Schedule A
- General Description of Software
Schedule B
- Schedule of Hardware, Software and Support Fees
Schedule C
- Fees
Schedule D
- Security
Schedule E
- Customer Support
Schedule F
- Pricing and Revenue Model
Schedule G
- Transaction Processing
Schedule H -
Kahnawake Interactive Gaming License / Forms B, C and
D
4.
INDEMNIFICATION.
a. Limitation
on Indemnification. Except as otherwise provided
herein, Licensee
acknowledges and
agrees that neither Licensor nor its
agents, nor
any of their respective members, shareholders,
vendors,
suppliers, directors,
officers, employees or representatives
(collectively the
"Licensor Parties") will be liable to the Licensee or
any of the Licensee's customers for any special, indirect,
consequential,
punitive or exemplary damages, or damages for lost
profits or
savings, in connection
with this Agreement, its performance
or breach.
If despite the foregoing limitations, any of
the Licensor
Parties should
become liable to Licensee or any other person (a
"Claimant"), the
maximum aggregate liability of the Licensor
Parties
shall be limited to the lesser of the actual amount
of loss or damage
suffered by
Claimant or the sum of Licensee's fees payable by the
Licensee to Licensor within the two (2) months immediately
preceding the
loss.
b. Activities
of Licensor. Licensor shall indemnify, defend and
save harmless
Licensee and its members, shareholders, vendors,
suppliers, directors,
officers, employees, agents, contractors,
representatives,
parent company,
and subsidiaries (together, the
"Licensee Indemnified
Parties") from and against all damages,
losses,
costs and expenses (including actual legal fees and
costs), fines and
liabilities incurred
by or awarded asserted or claimed
against any of
the Licensee
Indemnified Parties by any third party, including, without
limitation, any
licensing or government agency who licenses, regulates,
or otherwise
governs the licensing or use of Internet gambling in
connection with
the Licensor's activities under this Agreement,
including claims
brought by a person using or relying upon
any advice
given or publication produced and distributed by the Licensor.
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c. Activities
of Licensee. Licensee shall indemnify, defend and
save harmless
Licensor and its members, shareholders, vendors,
suppliers, directors,
officers, employees, agents, contractors,
representatives,
parent company,
and subsidiaries (together, the
"Indemnified Parties")
from and against all
damages, losses, costs and
expenses (including
actual legal fees and costs), fines and liabilities
incurred by
or awarded asserted or claimed against any of the
Indemnified Parties
by any third party,
including, without limitation,
any licensing or government agency who licenses, regulates, or
otherwise
governs the licensing or use of Internet gambling in connection
with the
Licensee's activities
under this Agreement, including claims brought by
a person using or
relying upon any advice given or publication produced
and distributed
by the Licensee.
5.
DISRUPTIONS.
a. Defects.
Licensor will use reasonable efforts to guarantee
the long term quality and integrity of the
Software. However, Licensor
can not guarantee that the Software is error-free. Licensee
acknowledges
hereby that such
complete freedom of programming errors is unattainable
within the
software industry. If the Software fails to
substantially
conform to
its defined specifications, Licensee may report defects
("Defects") to
Licensor in writing. Within ninety (90) days of
such
written notice,
although with
reasonable efforts to minimize such time
period, Licensor
shall, at its option, complete one of the
following:
(1) substantially
correct such Defects provided that the
Software has
not been altered or reconfigured in any manner by Licensee or its
agents, or
(2) replace such
portion of the Software or entire Software
so long as the replacement remains within the
noted specifications of
the Software. If
Licensor fails to substantially correct Defects within
sixty (60)
days of written notice
by Licensee, then as Licensee's sole
remedy Licensee
may terminate this Agreement with respect to such
release of the
Software. In the event that Licensee elects to terminate
the Agreement,
Licensee may recover fees paid to Licensor in accordance
with the Agreement up to a maximum amount equivalent to the fees
paid to
Licensor by
Licensee during the two months prior to termination.
b. Temporary
Disruptions.
Licensee acknowledges that from time
to time, as a result of numerous reasons, including, without
limitation,
Hardware failure, Software failure, Software maintenance, Software
bugs,
Software upgrades,
supplier failures, or
acts of God, the services and
product performance
provided under this Agreement by Licensor may
be
temporarily disrupted.
Licensee acknowledges and agrees that neither
Licensor, its agents nor any Licensor Parties will be liable to
Licensee
or any of Licensee's customers or Licensee Parties for any
special,
indirect,
consequential,
punitive or exemplary damages, or damages for
loss of profits or savings, or any other damages, costs or
expenses
incurred by
Licensee, Licensee
Parties or Licensee Users in connection
with any such temporary disruptions.
6. GOVERNMENT
ISSUES.
Licensor shall
not be held liable for any damages of any kind
that result from any
government or quasi-government legislation, policy
or action.
7. CONDITIONS
OF LICENSE.
a. Ownership
of Software. All right, title and interest in and
to the Software, and any copies and/or derivatives thereof and
all
documentation, code
-- and logic, which
describes and/or composes such
software or
any such derivatives shall remain the sole
and exclusive
property of Licensor
or its agents, as the case may be, pursuant to the
terms of Licensor's agreement with its agents, if any, and
Licensee
shall not edit,
reverse engineer, copy, emulate, create derivatives of,
compile or decompile or otherwise edit, tamper or modify the
Software in
any way. In the event of any such editing, reverse engineering,
copying,
emulation, creation of
derivative, compilation, decompilation, editing,
tampering or
modification
of the Software by
Licensee, Licensee shall
unconditionally assign and transfer any intellectual property
created by
any such non-permitted act to Licensor.
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b. Force Majeure. Except as otherwise specifically provided
herein, Licensor and
its agents shall not be responsible for failure of
performance of
this Agreement due to causes beyond their control,
including, without
limitation, work
stoppages, communications outages,
fires, civil
unrest, riots, rebellions, acts of God and similar
occurrences.
c. Software
Format. The Software format shall remain standard as
determined in
Licensor's
sole discretion.
d. Non-Exclusive
Agreement.
Subject only to the right of first
refusal set
out in sub-paragraph
12. b.1 hereof, Licensee acknowledges
that this is a non-exclusive agreement and that Licensor will enter
into
further licensing
agreements with an undefined number of other parties,
and that Licensor may
continue any and all such competitive and related
activities without
any liability to Licensee hereunder.
e. Compliance
with Applicable Law. Licensee shall be responsible
for ensuring that Licensee, and any of its Associates, are
operating the
Software in
compliance
with any and all
applicable state, provincial,
national,
and international laws. Licensee shall bear the sole
responsibility of determining which jurisdictions have declared
Internet
and or mobile gaming illegal. Further, Licensee shall be solely
responsible for
determining
which jurisdictions to
accept wagers from
and for which jurisdictions to market to.
As such, Licensee shall stay
abreast of the
legality of online gaming in jurisdictions from which it
accepts wagers.
f. Money-Laundering. Licensor has a zero-tolerance policy for
money-laundering activities with respect to the use and operation
of the
Software and
Licensee hereby
represents and warrants that it will take
all actions
as necessary to ensure
that no money-laundering activities
occur through
Licensee's,
and Licensee's
Associates, operation of the
Software.
g. User Bonus Restrictions. Licensee shall be solely responsible
for any bonuses,
incentives, comps, or free game credits given to Users
by Licensee.
h. User Loyalty Programs. Licensee shall be solely responsible
for any costs
associated with operating any player loyalty or incentive
programs. Such costs
may include, but not be limited to, redemptions by
Users for any prizes or rewards.
8. TERM
AND TERMINATION.
a. Term. Subject only to subparagraphs 8. c. and d.hereof, this
Agreement shall
commence and be deemed effective on the date when fully
executed (the
"Effective Date").
This Agreement shall remain in effect
for a period of three (3) years from the Effective Date (the
"Term") and
shall be automatically
renewed indefinitely for additional one (1) year
terms.
b. In the event Licensor completes the sale of its business
interests and/or
shares to a third
party,and pursuant to the provision
of the Assignment paragraph 8 (g), Licensee will have the option
to
continue to be
licensed by the Licensor's successor organization and/or
receive a complete copy and full working version of the
Licensor's
Software and
systems as defined in Schedule A at a price to be
determined by an outside valuator. By acquiring the Software and
systems
defined in Schedule A,
Licensee will be permitted to operate as a stand
alone business
without further obligations to Licensor.
c. Licensee
Default. In the event that Licensee is in default of
any provision
of this Agreement and has failed to cure
such default,
Licensor may
--- terminate this Agreement upon written notice to
Licensee
effective immediately.
d. Party Default. This Agreement may be terminated forthwith at
any time by either party upon written notice to the other party:-
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(a) if the other party commits a material breach of this
Agreement and if such breach is curable, fails to cure the
breach
within thirty
(30) days of receiving
notice of such breach from
the non-breaching
party;
(b) if a distress or execution is levied upon or against any of
the chattels
or property of the
other party and the same is not
paid within
seven (7) days of the levying of the same;
(c) if a resolution is passed for the winding-up of the other
party, or a petition for the liquidation of
the other party is
presented, or
an event analogous to the foregoing occurs
(otherwise than
for the purpose of reconstruction or
amalgamation) in
any jurisdiction where the other party is
resident, or the other
party has a receiver or an administrative
receiver appointed;
or
(d) if the other party shall cease or threaten to cease to
carry
on its business.
e. Any n
