Exhibit 10.01
SOFTWARE SUB LICENSE AGREEMENT
This Software License Agreement
("Agreement") is entered into as of this 18th
day of July, 2005 by and between Golden
Spirit Gaming Ltd., a Delaware
Corporation (the "Licensee") and Arc2
Entertainment Inc. (the "Licensor").
Recitals
A. Licensor has developed
certain online gaming software and licenses to
Licensee the rights to route users to such
software utilized for the operation
of online Casino (the "Software")
B. Licensee desires to
operate an Internet Gaming Operation and desires to
obtain a limited, non-exclusive license to
route users to the Software.
C. Accordingly, Licensor
hereby licenses the rights to route users to
Licensee and Licensee hereby licenses these
rights from Licensor upon the terms
and conditions set forth herein.
D. Licensor provides all
Licensees with access through gateway routing
pages to the Internet Gaming Operation.
E. Licensor wishes to sell
to Licensee a single gateway website which will
direct Internet gamers entering through
such gateway to the Internet Gaming
Operation and accept Licensee's gateway
website customers wagering activities
through the Internet Gaming Operation.
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. 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 Licensor.
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. Software. The suite of software applications
and related materials
specified in detail on Exhibit "A," a copy
of which is attached hereto and
incorporated herein by this reference.
d. Casino Software.
That portion of the
Software that pertains to casino
games.
e. Games. The games found
within the Casino Software.
f. User.
An individual that
utilizes the Software operated by the
Licensee.
g. Website. A website that
serves as the primary portal to the Software.
The URL for the Website is listed in
Schedule B of this Agreement.
h. Internet Gaming
Operation. A
comprehensive term used to describe the
Licensee's complete online gaming business
as set forth under this Agreement.
i. Third Party Affiliate.
Corporations that
maintain working relationships
with Licensor to offer various services to
Licensor's licensees. These services
may include Hardware operation and
maintenance, accounting services, Internet
gaming licensing assistance, marketing,
customer service, and e-commerce. The
decision to utilize the services of any
Third Party Affiliate belongs
exclusively to the Licensee and Licensor
makes no representations regarding
their performance.
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.
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 three (3) months
immediately preceding the loss.
b. 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 sixty
(60) 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 three
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 customers in
connection with any such temporary
disruptions.
c. 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.
6. 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.
b. Force Majeur.
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.
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
gaming illegal. Further, Licensee
shall be solely responsible for determining
which jurisdictions to accept wagers
from and for which jurisdictions to market
to.
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. Confidentiality:
Licensor hereby
acknowledges that in implementing the
Software, Licensee may learn information
which is confidential and proprietary
to Licensor or the residents of facilities
managed by Licensor. Licensee hereby
agrees not to disclose any information
identified by Licensor as confidential or
proprietary.
h. Reverse Engineering:
Licensee shall not
reverse engineer the Software.
Licensee shall not disclose or copy the
Software or Documentation except as
required to use the Software as permitted
under this License.
7. Term and
Termination.
a. Term. 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
unless the Licensee or Licensor serves
written notice of termination or intent
not to renew this Agreement to the
non-terminating party at least sixty (60)
days prior to the end of any then current
term.
b. Licensee Default.
In the
event that Licensee is in default of any
provision of this Agreement and has failed
to cure such default within thirty
(30) days of notice of said default,
Licensor may terminate this Agreement upon
written notice to Licensee effective
immediately.
c. Licensor Default.
In the
event that Licensor is in default of any
provision of this Agreement and has failed
to cure such default within thirty
(30) days of notice of said default,
Licensee may terminate this Agreement upon
written notice to Licensor effective
immediately.
8. Remuneration.
a. Initial Fee.
Licensee shall pay Licensor a one-time, non-refundable
license acquisition fee in the amount of
One Hundred Thousand Dollars
($100,000.00) as the "Initial Fee" in
consideration of Licensor's consent to
enter into this Agreement. Initial Fee
shall be payable as follows:
(1)
$80,000 due upon execution of the Agreement
(2) $20,000 due upon launch of website.
b. Monthly
License Fee.
Licensee shall pay to Licensor an
ongoing monthly fee (the "Monthly License
Fee") based on the following:
Licensee shall pay to Licensor a monthly
amount equivalent to Twenty-Eight (28)
percent of the Net Monthly Revenue.
c. Taxes and other Governmental
Fees. The above noted Monthly License Fee
is exclusive of any taxes, duties, fees,
excises, tariffs or other governmental
fees imposed on any of Licensee's
activities in connection with this Agreement.
Such charges, taxes, duties, fees, excises,
tariffs or governmental fees, if
any, shall be the sole responsibility of
Licensee.
d. Payment of Fees. Any
fees to Licensor for monthly services rendered
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