EXHIBIT 10.2
PROPRIETARY AND CONFIDENTIAL
SOFTWARE LICENSE AND SERVICES AGREEMENT
DATED AUGUST 6, 2008
PARTIES
1
PLAYTECH
PLAYTECH SOFTWARE LIMITED whose registered office is at
Trident Chambers, Road Town, Tortola, British Virgin
Islands.
2
LICENSEE
ZONE 4 PLAY, INC (company number 850077188) whose
registered office is at 103 Foulk Rd., Wlmington, DE
19803, USA.
WHEREAS,
Playtech has entered into an Intellectual Property and Technology
Purchase Agreement, dated August 6, 2008 with MixTV LTD, according
to which Playtech shall become the owner of certain products for
online and TV based gaming activities, which Licensee has been
licensed to utilize by MixTV LTD since _______; and
WHEREAS,
Licensee has informed Playtech that it owns 50% of a sublicensee,
by
the name of Two Way Gaming Limited, with a valid license to operate
and to sub license online and TV based gaming activities such as
casino, poker, P2P games, bingo and the like ("TWG"); and
WHEREAS,
Licensee desires to acquire a license to provide TWG the right to
utilize and sub license such products for its business, and
Playtech
is willing to grant Licensee such license, on the terms and subject
to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual obligations and
undertakings
contained herein, and subject to the terms hereinafter set forth,
the parties
hereto agree as follows:
1.
DEFINITIONS AND INTERPRETATION
1.1. In this Agreement, the following terms shall have the
following
meanings:
1.1.1. "AGREEMENT" means this Agreement, together with all of its
Schedules.
1.1.2. "APPLICABLE LAW" means all laws of any jurisdiction that are
applicable to this Agreement, to any of the parties hereto or to
any activity of any of the parties hereto, as amended and in
force from time to time, and the rules, regulations, orders,
licenses or permits issued thereunder, including, without
limitation, any rules, regulations, orders, licenses and permits
of any Competent Authority.
1.1.3. "BUSINESS DAY" means any day which is not a Saturday, Sunday
or
a public or bank holiday in the Isle of Man.
1.1.4. "COMMENCEMENT DATE" means the date set out at the beginning
of
this Agreement.
1.1.5. "COMPETENT AUTHORITY" means any governmental, judicial or
regulatory authority having jurisdiction over this Agreement, any
of the parties hereto or any activity of any of the parties
hereto.
1.1.6. "END USER" means a player who participates in the gaming
activities of the Online Gaming System.
1.1.7. "GROUP" means, in respect of a party, the holding company of
that company, together with every subsidiary of that holding
company at the date of this agreement; a company is a
"SUBSIDIARY" of another company, its "HOLDINGS COMPANY", if the
other company (i) holds a majority of voting rights in it; (ii)
is a member of it and has the right to appoint or remove a
majority of its board of directors; or (iii) is a member of it
and controls, pursuant to an agreement with other shareholders or
members, a majority of the voting rights in it or the right to
appoint or remove a majority of its board of directors.
1.1.8. "INTELLECTUAL PROPERTY RIGHTS" means any and all
intellectual
property rights, of all types or nature whatsoever, including,
without limitation, patent, copyright, design rights, trade
marks, data base rights, applications for any of the above, moral
rights, know-how, trade secrets, domain names, URL, trade names
or any other intellectual or industrial property rights (and any
licenses in connection with any of the same), whether or not
registered or capable of registration, and whether subsisting in
any specific country or countries or any other part of the world.
1.1.9. "LICENSE" means the license granted under Section 2 hereof,
subject to the terms and condition herein.
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1.1.10. "LICENSE AND SERVICE FEES" means the payments that Licensee
must pay to Playtech hereunder, as described in SCHEDULE 2
hereto.
1.1.11. "LICENSE TERM" means the period during which the License
hereunder is in full force and effect.
1.1.12. "LICENSED PRODUCTS" means TV and on-line gaming
technologies,
as described in SCHEDULE 1 hereto;
1.1.13. "ONLINE GAMING SYSTEM" means the Licensee's gaming system
and
related services, using the Licensed Products pursuant to the
rights granted, and subject to the conditions set forth, in this
Agreement.
1.1.14. "SPECIFICATIONS" means the specifications of the Licensed
Products, as set out in SCHEDULE 1.
1.2. In this Agreement, unless otherwise specified, any reference
to:
1.2.1. a statute or statutory provision includes a reference to the
statute or statutory provision as modified or re-enacted, or
both, from time to time, and to any subordinate legislation made
under it;
1.2.2. sections, schedules and/or parties is to sections of and
schedules and/or parties to this Agreement, respectively;
1.2.3. a document is a reference to the document as from time to
time
supplemented, modified or amended;
1.2.4. the singular includes the plural and vice versa, and the
masculine includes the feminine and the neuter genders and vice
versa;
1.2.5. a person includes natural persons, firms, partnerships,
companies, corporations, associations, organizations,
governments, states, governmental or state agencies, foundations
and trusts (in each case whether or not having separate legal
personality); and
1.2.6. writing includes fax transmission, but excludes email, SMS
and
similar means of communication.
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1.3. In this Agreement, any phrase introduced by the words INCLUDE,
INCLUDING, INCLUDES and SUCH AS are to be construed as
illustrative,
and shall not limit the sense of the words preceding those words.
1.4. The schedules form an integral part of this Agreement. In the
event of
any conflict or inconsistency between this Agreement, excluding the
Schedules, and any of the Schedules, the provisions of this
Agreement,
excluding the Schedules, shall prevail.
1.5. The division of this Agreement to Sections and sub-Sections,
and the
headings used in this Agreement, are for convenience only, and
shall
not affect the interpretation of this Agreement.
2.
GRANT OF LICENSE; RESERVATION OF RIGHTS
2.1. Subject to the terms of this Agreement, including payment of
all
License and Service Fees, Playtech grants to Licensee, and Licensee
hereby accepts the right to sublicense to TWG a limited, personal
and
non-transferable, non-exclusive, license to be used in the
Territory
only (the "LICENSE"), valid only during the License Term, to use
the
Licensed Products.
For purposes hereof, "TERRITORY" means every jurisdiction in which
gambling is authorized and regulated, provided that Licensee holds
a
valid license to operate the Licensed Products in such
jurisdiction.
2.2. Licensee hereby acknowledges and agrees that Playtech owns
solely and
exclusively, or is duly licensed to use, any and all right, title
and
interest in and to the Licensed Products, including any other
modification, enhancement, adaptation, translation or other change
of
or addition to the Licensed Products, even if developed by Playtech
based on ideas, suggestions, specifications, demands or proposals
by
Licensee, End Users of Licensee, or any other third party. Licensee
irrevocably assigns to Playtech, and shall procure an identical
assignment from any End Users, all right, title, and interest it or
its End Users may have or may acquire in and to all such rights,
including, without limitation, patent, copyright, trademark, trade
secret or know how. Licensee shall procure an identical agreement
from
its End Users, to sign and deliver to Playtech such other documents
as
Playtech considers desirable to evidence or effect the assignment
of
all of the aforesaid rights to Playtech and Playtech's ownership of
such rights. Licensee shall not, directly or indirectly, attempt to
invalidate for any reason whatsoever, or assert, or assist the
assertion by others, that the rights, title or interest in the
Licensed Products belong to any third party other than Playtech, or
that they infringe the Intellectual Property Rights of others.
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2.3. Playtech reserves any and all rights not expressly granted in
Section
2.1 above, including, without limitation, any and all rights to the
source code of the Licensed Products, modification rights,
translation
rights, rental rights or any other rights. Further, nothing in this
Agreement shall be construed to confer any rights upon Licensee or
any
third party by implication, estoppel, or otherwise as to any
Intellectual Property Rights of Playtech, except as specifically
stated in Section 2.1 above. Without limiting the generality of the
aforesaid, except as expressly permitted by this Agreement, or
specifically authorized in writing and in advance by Playtech,
Licensee shall not, nor permit others to:
2.3.1. use, copy, modify, create derivative works from or
distribute
the Licensed Products, any part of it, or any copy, adaptation,
transcription, or merged portion of it;
2.3.2. decode, reverse engineer, disassemble, decompile or
otherwise
translate or convert the Licensed Products or any part of it;
2.3.3. transfer, loan, lease, assign, rent, or otherwise sublicense
the Licensed Products;
2.3.4. remove any copyright, proprietary or similar notices from
the
Licensed Products (or any copies of it);
2.3.5. operate the Licensed Products or any part of it for the
benefit
of or on behalf of any third party, including by way of
application service provider services, internet service provider
services, timesharing arrangements, outsourcing services or
bureau services; or
2.4. Notwithstanding Section 2.1, TWG may sublicense the right to
use the
Licensed Products, to approved third parties which are (i) detailed
in
Schedule 3; or (ii) for whom Licensee shall receive in advance
Playtech's written consent; ("APPROVED SUBLICENSEES"), provided
that:
2.4.1. the Approved Sublicensees shall be entitled to use the
Licensed
Products solely for the benefit of Licensee, and only to the
extent that Licensee itself is entitled to use the Licensed
Products;
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2.4.2. The Approved Sublicensees shall undertake in writing,
towards
Licensee and