EXHIBIT 10.1
DATED THIS 17TH DAY OF APRIL, 2006
TWO WAY MEDIA LIMITED
- AND -
ZONE 4 PLAY INC.
- AND -
LADBROKES E-GAMING LIMITED
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MASTER SERVICES AGREEMENT
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THIS AGREEMENT is made the 17th day of April, 2006
BETWEEN:
(1) TWO WAY MEDIA LIMITED, a company incorporated in England and Wales, whose
registered office is at 19 Bolsover Street, London W1W 5NA (registered
number 4904168) ("TWTV");
(2) ZONE 4 PLAY INC., a company registered under the laws of Delaware and whose
principal place of business is at 103 Foulk Road, Suite 202, Wilmington,
Delaware 19803 U.S.A ("Z4P"); and
(3) LADBROKES E-GAMING LIMITED, a company incorporated in England and Wales,
whose registered office is at Maple Court, Central Park, Reeds Crescent,
Watford, Hertfordshire WD24 4QQ (registered number 03962991) ("THE
CUSTOMER")
WHEREAS:
A. The Customer wishes to obtain from TWTV and Z4P (together the "SERVICE
PROVIDERS") certain professional services relating to interactive TV
content and technology and the Service Providers wish to provide such
professional services to the Customer.
B. Therefore the parties have agreed to enter into this master services
agreement.
IT IS AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 The following words and expressions shall have the following meanings
unless the context otherwise requires:
'Acceptance means the process as set out in Clause 2.8 for
Test Process' demonstrating acceptance of a Project Deliverable against
the Project Specification;
'Agreement' means each agreement in the form of these terms and
conditions, Schedule 1 and the terms and conditions of the
relevant Statement of Work as further detailed in Clause
2.1 below;
'Associated means a group undertaking (as such term is defined in
Company' sections 258 and 259 of the Companies Act 1985);
'Business Day' means a day (other than a Saturday, Sunday or a bank
holiday) on which banks are open in London for business;
'Change' shall have the meaning set out in Clause 2.5;
'Change Control means the process described in Clause 2.5;
Request'
'Confidential means all technical and non-technical documentation or
Information' information (whether written, oral or in electronic form) of
either party, including information relating to data,
patents, copyrights, trade secrets and proprietary
information, techniques, ideas, principles, concepts,
inventions, know-how and processes, apparatus, equipment,
algorithms, software programs, software source documents
and/or formulae;
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'Customer means, as set out in or as attached to the relevant
Deliverable' Statement of Work, any work product, deliverable, material,
information and/or data which the Customer is to deliver at
its cost to TWTV and/or Z4P to enable the Service Providers
to properly perform Services;
'Event of Force means any cause beyond a party's reasonable control,
Majeure' including Acts of God or the public enemy, riots and
insurrection, war, industrial action, flood, fire, embargos,
judicial or government action and acts of civil or military
authority;
'Intellectual means all intellectual property rights of either party of
Property Rights' any nature whatsoever throughout the world for the full
unexpired period of any such rights and any extensions
and/or renewals thereof and including all and any:
(a) patents, registered trade marks, service marks,
copyright, designs and any and all applications for
registration of any of the same wherever made; and
(b) unregistered trade marks, service marks, designs,
design right and copyright; and
(c) know-how, trade secrets and confidential information
howsoever arising; and
(d) computer software database rights and semi-conductor
topographies
and any right or interest in any of the foregoing;
'Losses' means any liability, damage, expense, loss, claim or cost
(including reasonable fees and expenses of solicitors and
other professionals and specialists);
'Price' means the price payable for Services as set out in the
relevant Statement of Work;
'Project means, as set out in the relevant Statement of Work, any
Deliverable' bespoke work product, deliverable or material, including any
idea, concept, design, format, specification, software
program, hardware, component, documentation, information
and/or data developed, invented and/or prepared by or on
behalf of TWTV and/or Z4P in the course of performing
Services or which result from TWTV's or Z4P's use of a
Customer Deliverable or which are otherwise to be provided
to the Customer hereunder and which may include TWTV
Property and/or Z4P Property;
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'Project Plan' means, as set out in or attached to the relevant Statement
of Work, the project plan and time lines for the relevant
Services to be performed thereunder, including the project
start date, the scheduled completion date and any material
project milestones or assessment points;
'Project means the project specification as described in Section A.2
Specification' of the relevant Statement of Work;
'Purchase Order' means, where applicable, the Customer's purchase order for
Services;
'Service Provider means the TWTV Documentation and the Z4P Documentation;
Documentation'
'Service Provider means the Z4P Property and the TWTV Property;
Property'
'Service Provider means the Z4P Technology and the TWTV Technology;
Technology'
'Services' means, in the case of each relevant Statement of Work, the
services to be performed by the Service Providers as
summarised in the "Services Description" and as more
particularly defined in each of the project stages and
including the development and/or delivery of Project
Deliverables;
'Services means the written services description as set out in Section
Description' A.1 of the relevant Statement of Work;
'Statement shall have the meaning set out in Clause 2.2;
of Work'
'Site' means the place(s) where the Customer requires the Services
to be performed or delivered;
'Sub-Contractor' shall have the meaning set out in Clause 2.12;
'TWTV means any TWTV documentation, manuals or user guides as
Documentation' written in the English language as provided by TWTV to the
Customer in relation to Services, together with all updates
of the same (if any) as provided from time to time;
'TWTV Property' means:-
(a) any work product, deliverable or material, including
any idea, concept, design, format, specification,
software program, component, documentation, information
and/or data;
(b) the TWTV Technology; and/or
(c) any TWTV Documentation;
which is developed, invented, prepared or discovered by or
on behalf of TWTV or is licensed in by TWTV either (i) prior
to the date hereof or (ii) during the term of this Agreement
other than in connection with any Services performed under a
Statement of Work or otherwise under this Agreement;
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'TWTV Technology' means the proprietary technology and software of TWTV in all
electronic forms, including any software program, source
code, object code, tool or module forming part of and/or
supporting the development, functionality and operation of
such technology and software, together with all information
in eye-readable form supporting the same, except that any
TWTV Technology licensed hereunder shall not include any
rights to such source code unless expressly consented to by
TWTV or otherwise set out herein;
'Territory' means the United Kingdom of Great Britain and Northern
Ireland, Eire, the Channel Islands and the Isle of Man; and
'Z4P means any Z4P documentation, manuals or user guides as
Documentation' written in the English language as provided by Z4P to the
Customer in relation to Services, together with all updates
of the same (if any) as provided from time to time;
"Z4P Property" means:-
(a) any work product, deliverable or material, including
any idea, concept, design, format, specification,
software program, component, documentation, information
and/or data;
(b) the Z4P Technology; and/or
(c) any Z4P Documentation;
which is developed, invented, prepared or discovered by or
on behalf of Z4P or is licensed in by Z4P either (i) prior
to the date hereof or (ii) during the term of this Agreement
other than in connection with any Services performed under a
Statement of Work or otherwise under this Agreement;
'Z4P Technology' means the proprietary technology and software of Z4P in all
electronic forms, including any software program, source
code, object code, tool or module forming part of and/or
supporting the development, functionality and operation of
such technology and software, together with all information
in eye-readable form supporting the same, except that any
Z4P Technology licensed hereunder shall not include any
rights to such source code unless expressly consented to by
Z4P or otherwise set out herein.
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1.2 The headings in this Agreement are for convenience only and shall not
affect their interpretation.
1.3 Any references in this Agreement to a statute or a provision of a statute
shall be construed as a reference to that statute or provision as amended,
re-enacted or extended at the relevant time.
1.4 Words in the singular shall include the plural and vice versa. References
to a "person" shall include any individual, firm, unincorporated
association or body corporate.
1.5 References in this Agreement to Clauses and Schedules shall be to clauses
of and the schedules to this Agreement. References in this Agreement to
Parts and Sections shall be to parts and sections of the Schedules. The
Schedules form part of and shall be deemed incorporated in this Agreement.
1.6 In this Agreement any phrase introduced by the terms "including",
"include", "in particular" or any similar expression shall be construed as
illustrative and shall not limit the sense of the words preceding those
terms.
2 SERVICES; STATEMENT OF WORK
2.1 STATEMENT OF WORK: Each Statement of Work shall be a separate contract
incorporating the terms and conditions set out herein and upon execution by
the parties of the relevant Statement of Work this shall be deemed to be
binding and form each agreement. Reference to this Agreement shall mean
collectively these terms and conditions, Schedule 1 and the terms and
conditions of the relevant Statement of Work (and any annexes thereto). In
the event of any conflict or inconsistency between the terms and conditions
of this master services agreement and any Statement of Work, the terms of
the relevant Statement of Work will prevail. Each Statement of Work will
include or describe, without limitation, the following:- (a) Services
Description and Project Specification; (b) Project Plan; (c) Customer
Deliverables (if any); (d) Project Deliverables; (e) Price; (f) any
Acceptance Test Process; (g) any necessary right of use of any Service
Provider Property comprised within or provided as necessary for the use and
operation of a Project Deliverable; and (h) any variation to the terms of
this Agreement. For the avoidance of doubt, the items set forth in each
Statement of Work shall apply only to that particular Statement of Work,
unless such Statement of Work specifically states otherwise. Each party
shall promptly supply the other party with all such information and
assistance as the other party may reasonably request to enable the other
party to exercise its rights and to perform its obligations under the
relevant Statement of Work. Each party shall ensure that all such
information is correct to the best of its knowledge at the time of such
provision. Before the execution of any Statement of Work both parties
shall, unless otherwise agreed in writing, be liable to bear their own
costs in relation to any proposed work.
2.2 PROVISION OF SERVICES: The Service Providers will during the term of this
Agreement provide Services to the Customer on a project-by-project basis as
mutually agreed upon between the parties, which agreement shall be
evidenced by the parties' execution of a relevant Statement of Work. Each
party shall perform its obligations hereunder in accordance with the
provisions of this Agreement and the relevant Statement of Work. A
Statement of Work for "initial Services" is attached hereto as Exhibit 1.
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2.3 CANCELLATION OF STATEMENT OF WORK: The Customer may terminate (without
prejudice to the accrued rights and liabilities of either party under the
contract of which such Statement of Work forms part, as described in Clause
2.1 above) a Statement of Work upon giving either of TWTV or Z4P no less
than sixty (60) days' written notice. From the effective date of
termination of the Statement of Work ("CANCELLATION DATE"), the Service
Providers shall cease to be bound to deliver and the Customer shall cease
to be bound to receive delivery of Services to which the terminated
Statement of Work relates. The Customer shall be and remain fully liable to
the Service Providers for (a) all fees and payments due and payable by the
Customer to the Service Providers for any Services rendered up to the
Cancellation Date and any Project Deliverables accepted and/or capable of
acceptance as at the Cancellation Date and (b) an amount equal to fifty per
cent. (50)% of the remaining Development Fees which would have become due
and payable to the Service Providers if the Customer had not cancelled the
Statement of Work and the Service Providers had continued to perform and
had completed the Services as contemplated thereunder. For the avoidance of
any doubt, cancellation of any Statement of Work under this Clause 2.3
shall not affect any other obligations existing under any other Statement
of Work.
2.4 ORDERING SERVICES: The Customer shall order the Services to be performed by
submitting its Purchase Order to the Service Providers within five (5)
business days of the parties signing the relevant Statement of Work. Each
Purchase Order issued shall be binding on the parties and each party shall
be obliged to fulfil its obligations under the Purchase Order in accordance
with this Agreement. The provisions of this Agreement and of the relevant
Statement of Work shall apply to the Services so ordered and the Price
payable, and the terms and conditions on the reverse of any Purchase Order,
or any acknowledgement, invoice or other document shall not apply. Any
Associated Company of the Customer shall be entitled to enjoy the benefit
of this Agreement and any such Associated Company may in place of the
Customer issue Purchase Orders pursuant to this Agreement. Accordingly,
references in this Agreement to the Customer shall be deemed to be to the
Associated Company of the Customer submitting the Purchase Order.
Notwithstanding the foregoing, the Customer shall be and remain fully
liable for the obligations and liabilities of each Associated Company of
the Customer that issues a Purchase Order pursuant to this Agreement as if
the Customer itself had submitted such Purchase Order.
2.5 CHANGE CONTROL REQUEST PROCESS: Each party may, in accordance with the
procedure set out in Schedule 1, submit to the other parties a request for
a change, revision or modification to Services being performed and/or
Project Deliverables being provided under a Statement of Work ("CHANGE") as
a Change Control Request.
2.6 DELIVERY: Without prejudice to Clauses 6 and 7 below and/or any relevant
service level agreement annexed to any Statement of Work, risk of damage to
or loss of any Project Deliverable shall pass to the Customer upon delivery
of the same by the Service Providers.
2.7 TESTING/ACCEPTANCE: At the end of each project stage or as set out in the
relevant Project Plan, the Service Providers shall deliver the relevant
Project Deliverable, where such Project Deliverable is capable of testing,
to the Customer for acceptance testing in accordance with this Clause
("ACCEPTANCE TEST PROCESS"). The Customer shall (without prejudice to any
rights or remedies hereunder), in accordance with the timelines of the
Project Plan, either accept or reject the relevant Project Deliverable. The
Customer shall only be entitled to reject any such Project Deliverable if
it deviates from or fails the specifications (and/or the relevant part of
the Project Specification) set forth in the applicable Statement of Work or
otherwise fails to comply with the terms hereof (except where any such
failure is attributable to an Event of Force Majeure or to any act or
omission of the Customer itself or of its Sub-contractors) and notifies the
Service Providers of such fact in writing fully describing the reason for
such rejection. The Customer shall be deemed to have accepted the relevant
Project Deliverable if the Customer fails to accept or reject this within
the applicable testing period set out in the Project Plan. Once a Project
Deliverable is agreed and signed-off by the Customer, the Service Providers
will commence work on the next project stage (as set out in the relevant
Project Plan). In the event that the Customer rejects the relevant Project
Deliverable in accordance with the above, the Service Providers shall
promptly modify the relevant Project Deliverable so that it conforms with
the relevant specification and/or the relevant part of the Project
Specification and submit the same for repeat testing by the Customer in
accordance with this Clause 2.7. If the relevant Project Deliverable fails
the acceptance tests on more than three occasions the Customer shall be
entitled to terminate this Agreement immediately on notice. In the event of
such termination, the Service Providers shall promptly refund all monies
already paid by the Customer hereunder in respect of the relevant Statement
of Work.
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2.8 CUSTOMER'S DELAY: The Customer acknowledges that in order for the Service
Providers to perform their obligations hereunder and in a timely manner the
Customer must in a timely manner deliver the Customer Deliverables in
accordance with and/or perform its obligations under the Project Plan. The
Service Providers shall not have any liability to the Customer for any
failure to perform the Services or any delay to performing the Services to
the extent that such failure or delay was caused by either (a) the
Customer's failure to deliver any Customer Deliverable in accordance with
the Project Plan, (b) any defect in and/or any failure of a Customer
Deliverable following delivery of the same, and/or (c) the Customer's
failure to perform its obligations under the Project Plan, and for each day
of delay where but for the Customer's failure such delay would not have
occurred an additional day will be added to the applicable project stage of
the Project Plan.
2.9 NON-EXCLUSIVITY: This Agreement is on a non-exclusive basis, therefore,
subject at all times to Clauses 5.4 and 10.1 and (in the case of the
Statement of Work set out in Exhibit 1) subject to paragraph I of Exhibit
1, nothing in this Agreement shall preclude any of the Service Providers
from entering into such an agreement with any other third party and using
their technology, Intellectual Property Rights, information and general
knowledge, skills and experience.
2.10 PERSONNEL: Each party shall appoint and maintain (a) a project manager who
shall have authority to take all necessary decisions concerning the project
time lines and the technical performance and delivery of Project
Deliverables, and (b) an account manager to manage the implementation of
this Agreement and the ongoing commercial relationship. Each party shall
provide sufficient numbers of suitably skilled, experienced and competent
persons to perform its respective obligations hereunder.
2.11 SITE ATTENDANCE: If it is agreed between the parties that authorised
personnel of the Service Providers will be required to attend at a Site for
the purposes of enabling the Service Providers to properly perform
Services, the Customer shall provide the authorised personnel of the
Service Providers with all necessary access to such Site (provided that the
Customer may refuse to admit, or may order the removal of, any personnel of
the Service Providers who in the reasonable opinion of the Customer is or
are not fit to be present at any Site). The Service Providers shall take
reasonable care to ensure that, in properly performing Services at a Site
that the Service Providers' personnel do not interfere with the operations
of the Customer or its Sub-Contractors unless specifically directed to do
so by an authorised representative of the Customer or a Sub-Contractor. If
it is necessary for the Service Providers to remove or disconnect any
existing equipment or systems at a Site in order to enable the Service
Providers to properly perform their obligations hereunder, the Customer
shall provide the Service Providers with or procure the provision of all
such assistance or supervision as is necessary to facilitate and ensure the
safe removal or disconnection of the same.
2.12 SUB-CONTRACTORS: The Service Providers shall, to the extent called for
under the relevant Statement of Work or as the Customer may reasonably
request, be required to coordinate with the agents, contractors,
sub-contractors or consultants of the Customer, including, without
limitation, services providers, systems integrators and project managers
(collectively, "SUB-CONTRACTORS"). The Service Providers will take
reasonable instructions from a Sub-Contractor and act upon these as if such
instructions came from the Customer itself. The Customer shall be and
remain liable for any instructions of or any acts or omissions of a
Sub-Contractor. For the avoidance of doubt, no Sub-Contractor shall have
authority to execute any Change Control Request without evidence of the
Customer's express written permission to do so. The Customer will ensure
that any Sub-Contractor is party to non-disclosure or confidentiality
agreements in connection with the Sub-Contractor's involvement in any
Services.
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2.13 REPORTING: The Service Providers shall maintain all relevant reports,
records and other documents relating to the performance of the Services and
shall, if so requested by the Customer at its own expense and on reasonable
written notice, provide the Customer with copies of such reports, records
and other documents twice in every twelve (12) month period during the term
of this Agreement and once in the twelve (12) month period following the
expiry of the term of this Agreement.
3 PAYMENT
3.1 PRICE: The Price for Services shall be as set out in the relevant Statement
of Work.
3.2 INVOICES:
3.2.1 Invoices shall be due for payment within thirty (30) days of the date
of receipt unless expressly stated otherwise in the relevant Statement
of Work. Except as expressly provided otherwise all sums due to be
paid to the Service Providers by the Customer shall be payable to the
credit of TWTV at:-
NAME OF ACCOUNT: Two Way Media Limited t/a Two Way TV
NAME AND ADDRESS OF BANK: Royal Bank of Scotland, London City
Commercial Centre, 7th Floor, 280
Bishopsgate, London EC2M 4RB
ACCOUNT NUMBER: 21988963
SORT CODE: 15-10-00
SWIFT CODE: RBOSGB2L
IBAN No.: GB44RBOS15100021988963
or, at such other bank account as designated in writing by the Service
Providers to the Customer from time to time. Z4P acknowledges that
payment by the Customer to TWTV shall constitute a valid discharge in
full of its payment obligations to the Service Providers and that Z4P
shall look solely to TWTV for sums due to it hereunder.
3.2.2 Upon receipt of funds from Customer, TWTV shall inform Z4P of the
amount due to Z4P under the Statement of Work and within five (5) days
of receiving an invoice for said amount from Z4P, shall deliver to Z4P
any sums due to Z4P as per the Statement of Work.
3.3 INTEREST: Interest will accrue on late payments at the rate of two per
cent. (2%) per annum above the base rate of HSBC bank or the maximum rate
permitted by law, whichever is less, and from the due date of such overdue
amount until the date of the payment in full, whether before or after any
judgment. Any such interest shall accrue and be calculated on a daily
basis.
3.4 AUDIT RIGHTS: The Customer shall have the right at its own expense to
appoint an independent auditor to inspect or audit the Service Providers'
records and accounts for the purpose of verifying any invoice of the
Service Providers calculated on a "time and materials" basis, once in every
twelve (12) month period during the term of this Agreement and once in the
twelve (12) month period following the expiry of the term of this
Agreement, and on not less than thirty (30) days' prior written notice to
the Service Providers and subject always to such independent auditor
signing a confidentiality agreement with the Service Providers on terms
reasonably acceptable to the Service Providers.
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4 TERM & TERMINATION
4.1 TERM: Following signature of this master services agreement and signature
of the relevant Statement of Work, the term of this Agreement shall be as
set out in the relevant Statement of Work, unless it is terminated earlier
pursuant to this Agreement.
4.2 TERMINATION FOR CAUSE:
4.2.1 The Customer may terminate this Agreement immediately upon written
notice to the Service Providers at any time if any of the Service
Providers is in breach of any material obligation under this Agreement
or is in persistent breach of any obligation under this Agreement and
where such breach is capable of remedy fails to remedy such breach
within thirty (30) days of written notice to remedy the same.
4.2.2 Each Service Provider (with the prior written consent of the other
Service Provider, which consent the Customer shall not be obliged to
verify) may terminate this Agreement immediately upon written notice
to the Customer at any time if the Customer is in breach of any
material obligation under this Agreement or is in persistent breach of
any obligation under this Agreement and where such breach is capable
of remedy fails to remedy such breach within thirty (30) days of
written notice to remedy the same, such notice stating that failure to
remedy the breach may give rise to termination under this Clause
4.2.2.
4.3 TERMINATION FOR INSOLVENCY: Each Service Provider (with the prior written
consent of the other Service Provider, which consent the Customer shall not
be obliged to verify) or the Customer may terminate this Agreement
immediately upon written notice to the other parties at any time if one of
the other parties becomes insolvent or becomes the subject of a winding up
order (of any type) or an administration order, or has an administrative
receiver appointed (including under the Law of Property Act), or compounds
with its creditors, enters into a company voluntary arrangement or scheme
of arrangement.
4.4 CONSEQUENCES OF TERMINATION: In the event of expiry or termination of this
Agreement howsoever arising (a) all fees and payments due and payable by
the Customer to the Service Providers for Services up to the date of expiry
or termination of this Agreement shall become immediately due and payable,
(b) except as otherwise expressly provided for under a Statement of Work
and/or under Clause 5.4, all rights and licences granted hereunder shall
cease at the date of expiry or termination of this Agreement, and (c) each
party shall within thirty (30) days of the date of expiry or termination of
this Agreement return to the other parties all of the other parties'
Confidential Information together with any copies made thereof, including
copies in all forms, partial and incomplete, on any types of media and in
any computer memory, and (if requested in writing) certify to the other
parties in writing that it has strictly complied with this obligation and
has not retained any copies of the other parties' Confidential Information.
Each party's further rights and obligations shall cease immediately on
termination of this Agreement, but termination does not affect each party's
accrued rights and obligations as at the date of termination and save that
Clauses 1, 2.1, 2.13, 3.3, 4.4, 5, 6, 7, 9, 10.1, 10.2, 10.3, 10.5, 10.6,
10.7, 10.8, 10.9, 10.11, 10.12, 10.13, 10.15, 10.16, 10.17, 10.18 and such
other Clauses and/or Exhibits and/or Annexes of this Agreement as are
necessary for the interpretation and enforcement hereof shall survive any
termination or expiry of this Agreement.
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4.5 TERMINATION BY ONE SERVICE PROVIDER: Where one Service Provider terminates
this Agreement the other Parties may either terminate this Agreement on
thirty (30) days' prior written notice to the other or otherwise agree to
continue the Agreement provided that the remaining Service Provider shall
take on the future liabilities and obligations of the terminating Service
Provider and procure any rights necessary from the terminating Service
Provider which are necessary to enable the continued use by the Customer of
all Project Deliverables.
5 INTELLECTUAL PROPERTY RIGHTS
5.1 TWTV'S PROPRIETARY RIGHTS: All rights of ownership, title, interest or
otherwise in the Intellectual Property Rights of TWTV in any TWTV Property
(including any TWTV Property comprised within or provided as part of any
Project Deliverable) are expressly reserved by TWTV and shall vest in and
remain the sole and absolute property of TWTV and its licensors. The
Customer expressly acknowledges TWTV's ownership, title, interest or
otherwise in the Intellectual Property Rights in the TWTV Property. The
Customer agrees to hereby immediately assign to TWTV by way of future
assignment, the Customer's entire right and interest which the Customer
acquires (if any) in any TWTV Property or where such right or interest
cannot be assigned grant to TWTV a royalty free licence in perpetuity to
the same and the Customer will at TWTV's expense execute any documents in
connection therewith that TWTV may reasonably request.
5.2 Z4P'S PROPRIETARY RIGHTS: All rights of ownership, title, interest or
otherwise in the Intellectual Property Rights of Z4P in any Z4P Property
(including any Z4P Property comprised within or provided as part of any
Project Deliverable) are expressly reserved by Z4P and shall vest in and
remain the sole and absolute property of Z4P and its licensors. The
Customer expressly acknowledges Z4P's ownership, title, interest or
otherwise in the Intellectual Property Rights in the Z4P Property. The
Customer agrees to hereby immediately assign to Z4P by way of future
assignment, the Customer's entire right and interest which the Customer
acquires (if any) in any Z4P Property or where such right or interest
cannot be assigned grant to Z4P a royalty free licence in perpetuity to the
same, and the Customer will at Z4P's expense execute any documents in
connection therewith that Z4P may reasonably request.
5.3 CUSTOMER'S PROPRIETARY RIGHTS: All rights of ownership, title, interest or
otherwise in the Intellectual Property Rights of the Customer in the
Customer Deliverables are expressly reserved by the Customer and shall vest
in and remain the sole and absolute property of the Customer and its
licensors. The Service Providers expressly acknowledge the Customer's
ownership, title, interest or otherwise in the Intellectual Property Rights
in the Customer Deliverables. The Service Providers hereby assign to the
Customer, their entire right and interest which they acquire (if any) in
any Customer Deliverables or where such right or interest cannot by
applicable law be assigned grant to the Customer a royalty free licence in
perpetuity to the same and the Service Providers will execute any documents
in connection therewith that the Customer may reasonably request. The
Customer hereby grants to the Service Providers a non-exclusive licence
during the Term to use the Customer Deliverables only to the extent
necessary to enable the Service Providers to fulfil their obligations under
this Agreement.
5.4 PROJECT DELIVERABLES: Notwithstanding any other provision of this
Agreement, but subject always to the Service Providers' proprietary rights
pursuant to Clauses 5.1 and 5.2 above the ownership of all Intellectual
Property Rights in each Project Deliverable shall vest in and remain the
sole and absolute property of the Customer.
5.4.1 Each of the Service Providers hereby assigns to the Customer with
full title guarantee all legal and beneficial rights, title and
interest in each Project Deliverable (excluding any Z4P Property
and/or TWTV Property comprised therein) and all compiled executable
code and underlying source code comprised in each Project Deliverable,
so far as the same may by law be assigned, and the Intellectual
Property Rights in and in relation to the same (and the full,
exclusive, unfettered world-wide rights to use the same for any
purpose).
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5.4.2 For the avoidance of doubt, each of the Service Providers and the
Customer agree that they may not use the rights granted pursuant to
5.4.1 above without the other parties' prior written consent which
shall not be unreasonably withheld, delayed or conditioned. In the
event that Customer wishes to utilise the Project Deliverables
otherwise than in combination with the Z4P Property and/or TWTV
Property and the Service Providers do not wish to contribute a share
of the costs of integrating a replacement for the Z4P Property and/or
TWTV Property within the Project Deliverables (such costs to be
negotiated and reasonably allocated between the parties in good
faith), the Service Providers undertake to provide such consent
without delay.
5.4.3 The Service Providers grant to the Customer a non-exclusive licence
for the Term of the relevant Statement of Work to use any TWTV
Property and/or Z4P Property related to and/or comprised in the
Project Deliverables (or which are otherwise necessary for the use
and/or exploitation by the Customer of any Project Deliverable) in the
Territory, solely for the purposes contemplated in the relevant
Statement of Work.
5.4.4 Subject to paragraph I of Exhibit 1, the Customer grants to the
Service Providers a perpetual non-exclusive licence to use any source
code in the Project Deliverables for other applications it creates or
develops in the future.
5.4.5 For the avoidance of doubt the Customer shall be able to utilise the
Project Deliverables in the course of making the Applications
available on the Sky Platform.
5.5 INTENTIONALLY DELETED.
5.6 LICENCE OF CUSTOMER DELIVERABLES: All licences in respect of any Customer
Deliverables which the parties agree that the Service Providers will
require for use and operation of delivering the relevant corresponding
Project Deliverable shall be as set forth in the relevant Statement of Work
5.7 RESTRICTIONS ON LICENCE: Where any party grants to another party a licence
under this Agreement in any of their respective property, the licensee
shall not except as expressly set forth in this Agreement or with the prior
written consent of the licensing party:
5.7.1 exceed the scope of the rights and licence granted;
5.7.2 reverse engineer, decompile, disassemble (in each case save as
permitted by applicable law) or otherwise attempt to learn the source
code, structure, algorithms or ideas underlying the software in any
licensed property;
5.7.3 combine all or any part of the licensed property with any other third
party system or technology;
5.7.4 modify, translate or create derivatives based on the licensed
property;
5.7.5 remove any copyright, trademark, patent or other proprietary notices
which appears on the licensed property or any copies thereof.
Notwithstanding the foregoing, the parties acknowledge and agree that
the only branding and/or trade marks that shall be displayed on the
Applications (as defined in Exhibit 1) shall be those of Ladbrokes;
11
5.7.6 use or exploit the licensed property outside the Territory save that
the Service Providers acknowledge that although the Applications (as
defined in Exhibit 1) are intended to be made available on the Sky
Platform by satellite for reception in the Territory, such broadcasts
may be capable of reception outside the Territory due to the inherent
capability of satellites to beam down signals which are not confined
to territorial boundaries ("OVERSPILL"). The Service Providers further
acknowledge that the rights herein granted to the Customer include the
right to make available the Applications by satellite which may cause
Overspill. The Service Providers agree that the occurrence of
Overspill shall not constitute a breach of this Agreement; and
5.7.7 use the trademarks or branding of the other save as expressly set out
in this Agreement.
6 WARRANTIES
6.1 SERVICE PROVIDERS WARRANTIES: each of the Service Providers warrants that:
6.1.1 it has full power and authority to enter into this Agreement;
6.1.2 the performance of the Services and the Project Deliverables will
comply with all applicable laws, regulations, orders and decrees in
the Territory;
6.1.3 the Project Deliverables (excluding any Customer Deliverables or any
items or components thereof comprised within or forming part of any
Project Deliverable) shall not infringe any third party Intellectual
Property Rights in the Territory;
6.1.4 the Project Deliverables will, if operated and maintained by the
Service Providers on behalf of the Customer or if operated and
maintained by or on behalf of the Customer in accordance with the
Service Providers' reasonable instructions, comply with and operate
and perform in accordance with the Project Specification;
6.1.5 all of the Project Deliverables will be delivered in a timely manner;
6.1.6 notwithstanding Clause 6.1.6 below, it will not (and the Project
Deliverables will not) do anything to undermine or damage or prejudice
any other service or channel distributed upon the relevant set top box
e.g. upon Telewest or upon Sky, and/or the relevant systems e.g. cable
or satellite (including without limitation any electronic programme
guide);
6.1.7 it shall in the event that the Project Deliverables have, or are
likely to have, a prejudicial effect on the relevant set top box or
any part of the relevant systems or any other service or channel
distributed upon the relevant systems, forthwith upon becoming aware
of the same, notify Customer of such issue with the Project
Deliverables and shall promptly take such actions as are necessary to
correct such prejudicial effect and prevent the same recurring;
6.1.8 that no element of the Services shall contain or include any virus,
worm or other harmful or contaminating element;
6.1.9 it shall perform its obligations hereunder using all due skill and
care and in accordance with professional industry standards applicable
from time to time; and
6.1.10 ensure the Project Deliverables are compatible with Ladbrokes'
systems and Sky's systems at the time of delivery of the Project
Deliverables.
12
6.2 CUSTOMER WARRANTIES: The Customer warrants that:
6.2.1 it has the full power and authority to enter into this Agreement;
6.2.2 it will comply with all applicable laws, regulations, orders and
decrees in the Territory in relation to the use or exploitation of any
Project Deliverable; and
6.2.3 the Customer Deliverables or their use and exploitation as
contemplated by the relevant Statement of Work shall not infringe any
third party Intellectual Property Rights in the Territory.
6.3 THIRD PARTY CLAIMS: In the event of any actual third party claim of any
kind whatsoever against a party to this Agreement relating to a warranty
given by another party, the party in receipt of such third party claim
shall promptly notify the warrantor in writing of the third party claim of
which it has notice together with reasonable written detail of the basis of
and the facts surrounding such third party claim, shall make no admissions
without the warrantor's consent, and at the warrantor's request and expense
allow the warrantor to conduct and/or settle all negotiations and
litigation and give the warrantor all reasonable assistance. The costs
incurred or recovered in any negotiations or litigation resulting from the
third party claim shall be for warrantor's account. If any of the Services
and/or Project Deliverables are discovered to be effectively infringing the
rights, including the Intellectual Property Rights, of any third party in
the Territory (excluding any infringement resulting from a Customer
Deliverable or the performance of any Customer obligation by or on behalf
of the Customer), the Service Providers shall without prejudice to the
Customer's other rights and remedies at no extra cost to the Customer
either procure all such rights and licences as required to enable them to
continue to perform the Services and/or the Customer to use and exploit the
Project Deliverables, or the Service Providers shall modify or replace the
Services and/or Project Deliverables so affected so that these become
non-infringing.
6.4 It is acknowledged that in order for some of the obligations of each of the
parties to be carried out fully and in a timely manner pursuant to this
Agreement the other parties must comply with their corresponding
obligations contained herein and:
6.4.1 the Service Providers shall have no liability to the Customer for any
failure to perform an obligation to the extent that it is occasioned
solely by the Customer's failure to comply with such corresponding
obligation; and
6.4.2 Customer shall have no liability to the Service Providers for any
failure to perform an obligation to the extent that it is occasioned
solely by the Service Providers' failure to comply with such
corresponding obligation.
7 INDEMNIFICATION
7.1 INDEMNIFICATION BY THE SERVICE PROVIDERS: the Service Providers shall
jointly and severally (but not each) indemnify the Customer in full:
7.1.1 up to a maximum aggregate sum of (pound)250,000 (two hundred and
fifty thousand pounds) per Statement of Work against all Losses
suffered or incurred by the Customer as a result of or in connection
with any claim arising out of a breach of any of the warranties at
Clauses 6.1 (excluding the warranties at Clauses 6.1.6, 6.1.7
and/or 6.1.8). In the event that the maximum aggregate sum of
(pound)250,000 is recovered by the Customer from one of the Service
Providers, the Customer shall not be able to receive any further
indemnification from the other Service Provider; and
13
7.1.2 up to a maximum aggregate sum of (pound)1,000,000 (one million
pounds) per Statement of Work against all Losses suffered or incurred
by the Customer as a result of or in connection with any claim arising
out of a breach of any of the warranties at Clauses 6.1.6, 6.1.7,
6.1.8 and 6.1.10. In the event that the maximum aggregate sum of
(pound)1,000,000 is recovered by the Customer from one of the Service
Providers, the Customer shall not be able to receive any further
indemnification from the other Service Provider but the Customer shall
be entitled forthwith to terminate this Agreement by notice to in
writing to the Service Providers.
7.2 INDEMNIFICATION BY THE CUSTOMER: the Customer shall indemnify the Service
Providers in full up to a maximum aggregate sum of (pound)250,000 (two
hundred and fifty thousand pounds) per Statement of Work against all Losses
suffered or incurred by any of the Service Providers as a result of or in
connection with any claim arising out of a breach of any of the warranties
at Clauses 6.2.
7.3 IPR INDEMNITY: notwithstanding Clause 9, the Service Providers shall
jointly and severally (but not each) defend, indemnify and keep indemnified
the Customer and any Associated Company of the Customer and hold them
harmless forthwith on demand up to a maximum aggregate sum of
(pound)3,000,000 (three million pounds) per Statement of Work against all
Losses suffered by the Customer and/or any Associated Company of the
Customer in respect of any claim, demand or action for infringement or
alleged infringement of any Intellectual Property Rights relating to any
Project Deliverable or any part thereof (or the use and/or exploitation
thereof by the Customer and/or any Associated Company of the Customer) made
by any third party. In the event of any such Claim the Customer shall:
7.3.1 notify the Service Providers in writing of any such claim; and
7.3.2 give the Service Providers (at the Service Providers' own cost)
conduct of the defence of such claim and all related settlement
negotiations; and
7.3.3 provide the Service Providers with reasonable assistance,
information, and authority necessary to act in accordance with Clause
7.3.2, all out-of-pocket expenses incurred by the Customer and/or any
Associated Company of the Customer in providing such assistance,
information and authority to be reimbursed by the Service Providers.
7.4 ADDITIONAL INDEMNITY: notwithstanding Clause 9, the Service Providers
shall jointly and severally (but not each) defend, indemnify and keep
indemnified the Customer and any Associated Company of the Customer and
hold them harmless forthwith on demand up to a maximum aggregate sum of
(pound)3,000,000 (three million pounds) per Statement of Work against all
Losses suffered by the Customer and/or any Associated Company of the
Customer as a result of or in connection with any claim by Sky Interactive
Limited against Ladbrokes or any Associated Company in respect of any
Project Deliverable(s) causing or seeking to cause any change to any flash
memory, NVRAM or system memory in any 'set top box'.
8 INSURANCE
REQUIRED INSURANCE: The Service Providers shall at their own cost and in
respect of their insurable obligations under this Agreement effect and
maintain with reputable and established insurers such insurance to cover
such obligations as would be maintained by a reasonably prudent person
without unusual or onerous conditions or excesses.
9 LIMITATION OF LIABILITY
9.1 Subject always to any limitation of liability set out under Indemnification
in Clause 7 above and/or as otherwise set forth in an applicable Statement
of Work, to the extent permitted by law, the total liability of each party
to the other parties arising out of or in connection with this Agreement
shall not exceed a maximum aggregate of (pound)1,000,000 (one million
pounds) in respect of all Losses in relation to all incidents or claims.
14
9.2 NO INDIRECT OR CONSEQUENTIAL LOSS: No party shall be liable to the other
parties, (as the case may be) to the other parties' sub-licensees nor any
other person, in contract, tort (including negligence and breach of
statutory duty) or otherwise for any indirect or consequential loss or
damage (including but not limited to loss of profits, anticipated savings
or business opportunities) arising out of or in connection with this
Agreement, even if such loss was reasonably authorized or if that party had
been advised of the possibility of the other incurring the same.
9.3 Nothing in this Agreement shall exclude or limit any party's liability for
any loss or damage, to the extent that such liability cannot under any
applicable law be excluded or limited, including without limitation (i)
liability for death or personal injury caused by a party's negligence and
(ii) liability for fraud.
9.4 For the avoidance of any doubt this Clause 9 does not apply to Clauses
7.2 and 7.4 above.
10 GENERAL
10.1 CONFIDENTIALITY:
10.1.1 Each party shall during this Agreement and after its termination use
all reasonable endeavours to keep confidential (and to ensure that its
employees, agents and sub-contractors shall keep confidential) any
information relating to this Agreement and the matters to which it
relates or any information obtained in the course of dealing between
them and shall not use (other than in the manner contemplated by this
Agreement) or disclose such information except to the other parties
and to their professional advisers or with the prior written consent
of the other parties, or in accordance with and solely to the extent
of an order of a court or regulatory body of competent jurisdiction or
in compliance with professional obligations.
10.1.2 The covenants set out in this Clause 10 shall cease to be binding
on a party hereto in relation to a particular item, as soon as that
item of confidential information becomes public knowledge, otherwise
than by reason of any breach of this Clause by that party.
10.2 NON-SOLICITATION OF EMPLOYEES: During the term of this Agreement and for a
period of six (6) months thereafter no party shall on its own behalf or on
behalf of any person directly or indirectly entice or endeavour to entice
away from the other parties any employee who was at any time during the
term of this Agreement directly involved in performing that party's
obligations hereunder.
10.3 DATA PROTECTION: Each party shall comply with the provisions of the Data
Protection Act 1998 (the "ACT") and shall ensure that it is properly
registered under the Act for such processing of personal data (as defined
in the Act) as may be required in the performance of this Agreement. Where
as part of any Services, the Service Providers process personal data on
behalf of the Customer the Service Providers shall neither acquire any
right or interest in such personal data and, subject to the Act (a) act
only on instructions from the Customer in relation to such processing, and
(b) take appropriate technical and organisational measures against
unauthorised or unlawful processing of personal data and against accidental
loss or destruction of or damage to personal data. This obligation shall
include but not be limited to the Service Providers agreeing to keep all
personal data confidential and separately from any records to information
relating to any provision of content by it to other distributors of
enhanced television interactive services and any data relating thereto, and
to take appropriate technical and organisational measures against
unauthorised or unlawful processing of personal data and against accidental
loss or destruction of, or damage to, personal data. The Service Providers
shall not in any way use or disclose any personal data unless expressly
authorised to do so by Customer in writing and shall only use or disclose
such personal data in such authorised manner unless in the circumstances
where the Service Providers are obliged to disclose any data by law. For
the avoidance of doubt, the Service Providers agree that they will not use
customers' data obtained hereto to direct market or otherwise promote its
products or services or allow third parties to do so or transfer any such
data to third parties.
15
10.4 EXPORT TO USA & CANADA: Regardless of any disclosure made by the Customer
to the Service Providers of the ultimate destination of the Project
Deliverables or any part thereof, the Customer undertakes not to export,
either directly or indirectly, all or any part of the Project Deliverables
without having first obtained clearance or a licence to re-export from the
USA and/or Canadian Governments or any other government applicable to this
Agreement as required under their respective re-export regulations.
10.5 FORCE MAJEURE: No party shall be deemed in default or liable for any loss
or damage resulting from delays in performance or from failure to perform
or comply with the terms of this Agreement to the extent that such delays
or failure are directly due to an Event of Force Majeure, provided that the
affected party uses all reasonable endeavours to overcome or remedy its
inability to perform as promptly as possible. If any party is affected by
an Event of Force Majeure it shall at the earliest possible moment give
written notice thereof to the other parties, specifying the relevant events
or circumstances and the delay or default likely to be caused thereby or
resulting therefrom, and for so long as such party is affected shall
provide regular reports on the likely duration and effect of the same, and
on the progress of work to overcome or remedy its inability to perform. If
a party's failure to fully perform as a result of the Event of Force
Majeure shall continue for more than thirty (30) consecutive days the
non-affected parties shall be entitled to give notice terminating this
Agreement with immediate effect without any party having any further
obligation or liability to the others.
10.6 RELATIONSHIP OF PARTIES: The parties acknowledge that the Service Providers
are independent contractors and that the Service Providers' employees are
not employees of the Customer. Nothing in this Agreement shall be construed
as creating a partnership between the parties or as authorising either
party to act as agent for the other. No party shall pledge the credit of or
make any promises on behalf of the others unless the same shall have been
expressly authorised in writing by the other parties.
10.7 CONTRACT RIGHTS OF THIRD PARTIES: The parties agree that save as is
expressly stated in relation to Associated Companies of each party, the
Contracts (Rights of Third Parties) Act 1999 shall not apply to this
Agreement provided that the parties may vary the provisions of this
Agreement without requiring the consent of any of Associated Companies, and
if any party becomes entitled to rescind or terminate the Agreement it may
do so without the consent of any Associated Company.
10.8 CORRUPT GIFTS AND PAYMENTS: No party shall offer or give or agree to give
any person employed by or connected with the other parties any gift or
consideration of any kind as an inducement or reward for doing or
forbearing to do or for having done or forborne to do any act in relation
to this Agreement, or for showing or forbearing to show favour or disfavour
to any person in relation to this Agreement.
10.9 ASSIGNMENT: Each party may assign any of its rights and obligations under
this Agreement to an Associated Company. Otherwise, no party may assign,
novate or otherwise transfer the Agreement, whether in whole or in part, or
any of its rights or obligations hereunder, to any third party without the
prior consent in writing of the other parties, such consent not to be
unreasonably withheld or delayed.
16
10.10 NOTICES: Any notice to be given by one party to the others shall be in
writing and sent by prepaid recorded delivery or registered post to the
address of the relevant party or by facsimile transmission to the facsimile
number of the relevant parties, in each case as set out below. Notices
shall be deemed to have been received by the addressee within three (3)
business days of posting in the case of notices sent by post and within one
(1) business day in respect of notices sent by facsimile transmission
subject to receipt by the sender of a transmission report indicating that
all pages of the notice have been transmitted to the correct facsimile
number. Each party may, by notice, designate a different address and/or
facsimile number for the receipt of notices under this Clause.
TWTV's address for service of notices from the date of this Agreement is as
follows:-
F.A.O THE CHIEF EXECUTIVE OFFICER;
Two Way Media Limited
19 Bolsover Street
London W1W 5NA
Fax: +44 (0)20 665 4401
With a copy to Head of Legal
Fax: +44 (0)20 665 4401
Z4P's address for service of notices from the date of this Agreement is as
follows:-
F.A.O THE CHIEF EXECUTIVE OFFICER;
Zone4Play Ltd
Kyriat Atitidim, Bldg 2
Tel Aviv 61580, Israel
Fax: + 972 (3) 647 27 22
Copy to: Idan Miller
Fax: + 972 (3) 647 27 22
The Customer's address for service of notices from the date of this
Agreement is as follows:
F.A.O Commercial Director
Ladbrokes E-gaming Limited
Imperial House
Imperial Drive
Rayners Lane
Harrow
Middlesex
HA2 7JW
Fax: 020 8866 3189
10.11 PUBLICITY: Except as otherwise expressly provided for in the relevant
Statement of Work, the parties shall use reasonable endeavours to agree and
release a press release describing the subject matter (but not the terms)
of this Agreement and the relationship of the parties immediately prior to
the launch of the Services. Otherwise, save to the extent required by law,
no party shall disclose the existence or terms of the Agreement or any
other aspect of the relationship between the parties without the other
parties' prior written consent.
17
10.12 WAIVER: If any party grants any extension of time or indulgence in respect
of any breach of any term of this Agreement, or fails at any time to insist
upon or enforce any right remedy or power by another, then this shall not
be deemed a waiver of any part of or all of this Agreement.
10.13 SEVERABILITY: If any provision of this Agreement shall be held to be void
or unenforceable in whole or in part, this Agreement shall continue in
force in relation to the unaffected provisions, and the parties will, to
the extent permitted by law, use all reasonable endeavours in good faith to
re-negotiate the provision held to be void and unenforceable to achieve the
same objects.
10.14 DISPUTES: In the event of any material dispute or difference which arises
between the parties hereto in connection with or arising out of this
Agreement and which is not capable of proper resolution between the
parties' respective account managers, any party may request in writing that
the parties' respective chief executive officers or equivalent meet in good
faith within ten (10) business bays in an attempt to resolve the dispute
without recourse to legal proceedings. If the dispute or difference is not
reasonably resolved to the mutual satisfaction of the parties as a result
of such meeting, any party may (at such meeting or within ten (10) business
days from its conclusion) propose to the other in writing that structured
negotiations be entered into with the assistance of a neutral advisor or
mediator (hereinafter referred to as the "NEUTRAL ADVISOR") to be appointed
on terms of reference to be agreed between the parties with the aim of
resolving the dispute or difference. Nothing in this Clause 10.14 shall
prevent either party from commencing litigation at any time.
10.15 ENTIRE AGREEMENT: This Agreement, together with any schedules, exhibits or
appendices attached hereto, constitutes the entire agreement between the
parties concerning the subject matter of this Agreement and supersedes all
previous arrangements, commitments, understandings and agreements between
the parties concerning the subject matter hereof. Nothing in this Clause
shall act to exclude or limit either party's liability to the other with
respect to fraudulent misrepresentations.
10.16 VARIATION: This Agreement, or any part of it, may only be varied, amended
or modified by written agreement of each of the parties.
10.17 LAW AND JURISDICTION: This Agreement shall be subject to and construed and
interpreted in accordance with the laws of England and Wales and shall be
subject to the exclusive jurisdiction of the Courts of England.
10.18 JOINT AND SEVERAL LIABILITY: All representations, warranties,
undertakings, covenants, agreements and obligations made, given or entered
into in this Agreement by the Service Providers are made, given or entered
into jointly and severally by each of the persons comprised in the Service
Providers.
IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement to be
entered into on the day and year first before written.
SIGNED by )
duly authorized for and on behalf of ) /s/ Jean de Fougerolles
TWO WAY MEDIA LIMITED )
18
SIGNED by )
duly authorized for and on behalf of ) /s/ Shimon Citron
ZONE 4 PLAY INC. )
SIGNED by )
duly authorized for and on behalf of ) /s/ David Briggs
LADBROKES E-GAMING )
LIMITED )
19
SCHEDULE 1
CHANGE CONTROL REQUEST PROCESS
1. Each party may, in accordance with the procedure set out below in this
Schedule 1, submit to the others a request for a Change to the agreed form
of any Services or Project Deliverables as a Change Control Request.
2. The parties hereby agree that a Change Control Request signed by the
parties shall constitute a formal amendment to the Statement of Work. In
the event of any conflict or inconsistency between a Change Control Request
and a Statement of Work, the terms of the relevant Change Control Request
will prevail. No verbal agreement will have any effect until a Change
Authorization is signed by each of the parties' respective project
managers.
3. Each Change Control Request shall clearly identify in writing (a) the
detail of the proposed Change, (b) the party's project manager requesting
the Change, (c) the date of the request, and (d) all other matters material
to the requested Change.
4. In the case of a Change Control Request submitted by the Customer, the
Service Providers shall at no cost to the Customer incorporate such Change
Control Request, save that the Service Providers may refuse to incorporate
such Change Control Request on reasonable commercial grounds. The Service
Providers shall not refuse any such Change Control Request where the
relevant change is (in the reasonable opinion of the Service Providers,
acting in good faith) of a minor nature and shall implement such Change at
no cost to the Customer. If the Service Providers agree to incorporate such
Change Control Request, the Service Providers shall within ten (10)
business days of the date of its receipt respond in writing to the Customer
with: (a) an estimated timetable to carry out the Change; (b) a
specification of the Change; (c) detail of any additional deliverables,
documentation or training which will need to be provided; and (d) the
impact (if any) on any other matters that are the subject of the relevant
Statement of Work. In the event that the Service Providers do not agree to
incorporate such Change Control Request on reasonable commercial grounds,
the Customer may request the Service Providers to undertake the Change
Control Request as an additional piece of work chargeable on a time and
materials basis (on the basis of the current published rate card of the
relevant Service Provider) or at a fixed rate as agreed between the parties
at that time.
5. In the case of a Change Control Request submitted by the Service Providers,
the Service Providers shall include a cost estimate and timetable for
implementing the relevant Change.
6. Further to either the Service Providers' written response pursuant to a
Change Control Request submitted by the Customer or a Change Control
Request submitted by the Service Providers, the Customer shall within five
(5) business days respond in writing to the Service Providers and either:
(a) approve the Change Control Request and arrange for a copy of the
approved Change Control Request to be signed by or on behalf of the
Customer and returned to the Service Providers; (b) request from the
Service Providers further additional information in the form of a revised
Change Control Request and cost estimate; or (c) notify the Service
Providers of the Customer's rejection of the Change Control Request.
20
7. Upon approval of any Change Control Request, the Customer will (unless such
Change is deemed to be of a minor nature pursuant to paragraph 4 above, in
which case the Service Providers shall bear the cost of implementing such
Change) prepare a Purchase Order for the agreed cost of the Change or for
the aggregate of such number of Changes as shall have been approved (if
more than one) as applicable.
8. All preparation of Change Control Requests by one party shall be without
charge to the other parties. In the event of any conflicts or
inconsistency, the terms of a Change Control Request will prevail over
those of the Statement of Work.
NO VERBAL AGREEMENT TO IMPLEMENT A CHANGE WILL HAVE ANY EFFECT UNTIL A CHANGE
CONTROL REQUEST IS SIGNED BY THE PARTIES UNDER THE PROCESS SET OUT IN THIS
SCHEDULE 1.
21
EXHIBIT 1
STATEMENT OF WORK
(REF: TWTV/Z4P/LADBROKES/SOW/MSA-2005/001)
SERVICES
FOR
SOFTWARE APPLICATION DEVELOPMENT WORK: ROULETTE INTERACTIVE GAMES
BETWEEN:
TWO WAY MEDIA LIMITED, a company incorporated in England and Wales, whose
registered office is at 19 Bolsover Street, London W1W 5NA (registered number
4904168) ("TWTV");
ZONE 4 PLAY INC., a company registered under the laws of Delaware and whose
principal place of business is at 103 Foulk Road, Suite 202, Wilmington,
Delaware 19803 U.S.A ("Z4P", together with TWTV the "SERVICE PROVIDERS"); and
LADBROKES E-GAMING LIMITED, a company incorporated in England and Wales, whose
registered office is at Maple Court, Central Park, Reeds Crescent, Watford,
Hertfordshire WD24 4QQ (registered number 03962991) (the "Customer")
This Statement of Work incorporates the terms and conditions already agreed
between the parties in the document entitled Master Services Agreement agreed on
even date (the "MASTER SERVICES AGREEMENT") and together are referred to as the
"Agreement".
For the purposes of this Statement of Work, the following words and expressions
shall have the following meanings unless the context otherwise requires:
'Application' shall have the meaning set out in Section A.1.
'Commencement means the date of signature of this Statement of Work.
Date'
'Development Fee' shall have the meaning given to it in Section E.1.1.
'Game Engine' means the server-side roulette game engine developed
by the third party Orbis Limited and used under
licence by the Customer.
'Reference Platform' means a Sky Platform specific build of the OpenTV
middleware.
'Revenue Report' shall have the meaning given to it in Section E.1.5.2
'Revenue Share' shall have the meaning given to it in Section E.1.4.
'Sky' means BSkyB Limited.
'Sky Platform' means the digital television networks in the Territory
owned and/or operated by BSkyB Ltd and its Associated
Companies deploying the Reference Platform.
22
'Term' shall have the meaning given to it in section H.
'Territory' means the United Kingdom of Great Britain and Northern
Ireland, Eire, the Channel Islands and the Isle of
Man.
A. SERVICES DESCRIPTION & PROJECT SPECIFICATION
1. Under this Statement of Work, and based on the Project Specification the
Service Providers shall develop and test (for the purposes of this
Statement of Work, the "SERVICES") set top box ("STB") software
applications of the full screen single player roulette game, the three
quarter screen single player roulette game and the multiplayer roulette
game ("THE APPLICATIONS") to be made available by the Customer via the Sky
Platform. The parties hereto acknowledge that the terms of this Statement
of Work have been written with reference to such testing and development
and otherwise the Services being initially performed for the distribution
of the Applications over the Sky Platform and that the provision of the
Services are subject always to any limitation imposed by Sky on the
Reference Platform.
2. The following documents shall unless otherwise agreed in writing between
the parties constitute the Project Specification and define the Customer's
requirements for the Services to be performed hereunder by the Service
Providers:-
2.1 the section A.1 of this Statement of Work; and
2.2 the Project Plan to be subsequently agreed in writing between the parties
(provided that if the parties, acting reasonably and in good faith, fail to
so agree, Ladbrokes shall be entitled to stipulate a reasonable Project
Plan); and
2.3 the document entitled "Ladbrokes Roulette Service: 1 Player Version" dated
20th December 2005 to be subsequently agreed in writing between the parties
(provided that if the parties, acting reasonably and in good faith, fail to
so agree, Ladbrokes shall be entitled to stipulate a reasonable
specification). The specification for the 3/4 screen and multiplayer
versions of the Applications shall be produced by TWTV as soon as
reasonably practicable and subsequently agreed in writing between the
parties (provided that if the parties, acting reasonably and in good faith,
fail to so agree, Ladbrokes shall be entitled to stipulate a reasonable
specification) (which together with the specification for the 1 player
version referred to above shall comprise the "SPECIFICATION DOCUMENTS").
(together the "PROJECT SPECIFICATION").
B. DELIVERABLES
1. CUSTOMER DELIVERABLES.
1.1 The Customer Deliverables as described in this Section B.1 shall comprise
of all of the Customer Deliverables as contemplated by Section 2.1(c) of
the Agreement.
1.2 The Customer shall at its sole cost and in accordance with the time lines
set out in the Project Plan provide or procure the provision to the Service
Providers of the "Customer Deliverables", these being:-
1.2.1 The application program interface to the Game Engine and all
supporting documentation, together with the right and licence to allow
the Service Providers to develop code for operation with the Game
Engine in accordance with this Statement of Work.
23
1.2.2 Access to a development environment version of the Game Engine via
the internet to enable the Service Providers to develop and test the
integration code.
1.2.3 All necessary commercial arrangements with the third party provider
of the Game Engine to allow the Service Providers to undertake the
Services under this Statement of Work.
1.2.4 All commercial arrangements with Sky for the purposes of enabling
live deployment of the Applications and any pre-deployment testing
required to be under taken by SSSL.
1.2.5 Access to Sky signing tools/digital keys or a facility which can sign
OpenTV applications within one hour for over-air testing and broadcast
during the period between 09.30 and 18.00 on business days. Outside of
those hours the Customer shall use all reasonable endeavours to comply
with this Clause 1.2.5.
1.2.6 Text copy for the terms and conditions sections of the Applications.
1.2.7 Access, physically or remotely as required, to Customer's hosting
facilities to enable integration of the Applications.
1.2.8 Any logos, trade marks or branding, in a usable format, that the
Customer stipulates are to be used in the Applications from time to
time.
2. PROJECT DELIVERABLES.
2.1 The Project Deliverables as described in this Section B.2 shall comprise
all of the Project Deliverables as contemplated by Section 2.1(d) of the
Agreement.
2.2 The Service Providers shall in accordance with the time lines set out in
the Project Plan provide or procure the provision of the "Project
Deliverables", these being:-
2.2.1 The Applications, to be branded pursuant to Section B.1.2.9 above, in
accordance with the Customer's instructions from time to time and
which shall include, in the manner stipulated by Ladbrokes from time
to time, the terms and conditions referred to in Section B.1.2.7 in
the form of compiled executable OpenTV applications. The Applications
to be fully tested by the Service Providers and meet SSSL guidelines
and to comply with the Specification Documents. The Applications shall
be installed and configured by the Service Providers on the hardware
described in paragraph B.2.2.5 below.
2.2.2 The necessary server-side software in the form of compiled executable
programs known as the "Zonemas servers" (the "ZONEMAS SERVERS") that
enable communication between the Applications and the Game Engine.
Such deliverables comprising of the compiled executable software
programmes only. The Zonemas Servers shall be installed and configured
by the Service Providers on the hardware described in paragraph
B.2.2.5 below.
2.2.3 Any bespoke software code for integration of the Applications and the
Zonemas Servers with the Game Engine. Such code shall be installed,
integrated and configured by the Service Providers.
2.2.4 Any necessary documentation for supporting and operating the
Applications.
2.2.5 All hardware necessary to run the Zonemas Servers and the
Applications and make them available for use by end users of the Sky
Platform, as more particularly set out in the specification attached
at Annex B of this Statement of Work. The parties shall agree in good
faith appropriate support and maintenance responsibilities for the
hardware. The Customer shall have the option to purchase such hardware
on termination or expiry of this Agreement at such price as the
parties agree in good faith (but which shall be no greater than the
price paid by the Service Providers for such hardware).
24
C. GENERAL
1. The provision of these Services and each party's obligations hereunder
shall be governed by the terms and conditions of the Agreement and the
terms and conditions of this Statement of Work. In the event of any
conflict or dispute between the terms and conditions of the Master Services
Agreement and the terms and conditions of this Statement of Work, the terms
and conditions of this Statement of Work shall prevail except where
explicitly provided for.
2. The Customer shall be responsible for providing or procuring the provision
at its cost of all necessary third party licences, permissions, hardware,
software, bandwidth, test channels and connectivity as necessary to enable
the Customer to perform their obligations as contemplated by this Statement
of Work.
3. The Service Providers shall be responsible for providing or procuring the
provision at their cost of all necessary third party licences, permissions,
hardware and software as necessary to enable the Service Providers to
perform their obligations as contemplated by this Statement of Work. The
Service Providers shall support and maintain the Project Deliverables as
the Customer may reasonably require from time to time and the parties shall
otherwise comply with the service level agreement set out in Annex A
hereto.
4. Any Changes requested by the Customer to this Statement of Work (including,
without limitation, any component of or deliverable comprised within the
Project Specification) will be dealt with through the Change Control
Request process as set out at Clause 2.5 and Schedule 1 of the Agreement.
5. The Customer understands that the Game Engine may require bug-fixes in
order for the Service Providers to fulfil their obligations under this
Statement of Work and undertakes that it will use all reasonable endeavours
to fix (or have fixed) such bugs once notified of such requirements by the
Service Providers. In the event that such bug fixes to the Game Engine
delay timely delivery of the Project Deliverables, the Customer shall not
hold the Service Providers liable in any way for such delays. In the event
that such bug fixes to the Game Engine are not available in a timely manner
and the Service Providers are not able to provide an alternative solution,
or a fix to the Game Engine, such work will not be considered as part of
the Services for which the fixed Development Fee is payable, but will be
dealt with through the Change Control Request process.
6. The parties shall agree appropriate credits for the Service Providers to
appear solely within the 'Help' section of the Applications before they are
launched.
D. PROJECT STAGES
The performance of each party's obligations hereunder shall be undertaken
strictly in accordance with the Project Plan, unless otherwise agreed
between the parties separately in writing or as a result of a Change
Control Request.
E. PRICE & PAYMENT TERMS
1. DEVELOPMENT FEE AND REVENUE SHARE
1.1 The Service Providers shall perform the Services in consideration for the
payment by Customer to the Service Providers of:
25
1.1.1 the fixed fee of (pound)30,000 (the "DEVELOPMENT FEE"), comprising
(pound)15,000 in respect of TWTV and (pound)15,000 in respect of Z4P;
and
1.1.2 revenue shares as more particularly described in Section E.1.4 below
(the "REVENUE SHARE").
1.2 The Development Fee and Revenue Share includes all fees and expenses
payable by the Customer to the Service Providers under this Statement of
Work for the Project Deliverables.
1.3 The Customer, at the date of signature of this Statement of Work, shall
provide the Service Providers with a valid purchase order for the full
Development Fee, which the Service Providers shall invoice against as
follows:-
1.3.1 immediately in respect of fifty per cent (50%) of the Development
Fee;
1.3.2 a further fifty per cent (50%) of the Development Fee on launch of
the Applications for access by end users on the Sky Platform.
1.4 The Customer shall within 10 Business Days of the end of each calendar
month send (including by way of e-mail) to TWTV a statement setting out Net
Revenue and all deductions used in calculating Net Revenue (as defined in
paragraph 1.4B below) in respect of such calendar month and the Revenue
Share (as defined below). The Service Providers shall, within 10 Business
Days of receipt of such statement, issue an appropriate invoice to the
Customer and, subject to paragraph 1.4A below, the Customer shall make
payment to the Service Providers in accordance with Clause 3 of the
Agreement. The Service Providers (together) shall be entitled to the
following revenue shares for each of the Applications (provided that for
the purposes of this Section E.1.4, the full screen single player roulette
game and the three-quarter screen single player roulette game shall be
treated as a single Application) (the "REVENUE SHARE"):
30% of the first (pound)500,000 of cumulative Net Revenues during the
Term for each of the Applications;
25% of the next (pound)250,000 of cumulative Net Revenues during the
Term for each of the Applications;
20% of the next (pound)250,000 of cumulative Net Revenues during the
Term for each of the Applications;
15% of the next (pound)250,000 of cumulative Net Revenues during the
Term for each of the Applications; and
10% of cumulative Net Revenues thereafter during the Term for each of
the Applications.
1.4A If Net Revenue in respect of any calendar month is a negative amount, an
amount equal to that negative amount shall be carried forward and deducted
from Net Revenue (prior to any sharing of Net Revenue in accordance with
paragraph 1.4 above) for the subsequent calendar month. If such a deduction
results in (or increases) a negative Net Revenue for such subsequent month,
an amount equal to such negative amount shall be carried forward and
deducted from Net Revenue (prior to any sharing of Net Revenue in
accordance with paragraph 1.4 above) for the subsequent calendar month and
so on until such time as Net Revenue in a calendar month (after any such
deduction) is a positive amount. For the avoidance of doubt, where Net
Revenue (whether before or after any deduction made pursuant to this
paragraph 1.4A) is a negative amount, no Revenue Share shall be payable to
the Service Providers.
1.4B Where "NET REVENUE" shall mean the gross revenues from the stakes placed
using the Applications less the following deductions (and any irrecoverable
VAT on each thereof):
(a) gross profit tax paid to HMRC and/or any other betting duties or taxes
(including reasonable provisions in respect thereof) and/or other
statutory deductions or payments to licensing authorities in respect
of such gross revenues as notified by the Customer to the Service
Providers from time to time;
26
(b) winnings and returned stakes paid to end users;
(c) 25% of 'gross win' less gross profit tax (which percentage the parties
acknowledge is payable to SSSL);
(d) broadcast bandwidth cost of (pound)120,000 per Mb/s per year, or the
rate actually paid by the Customer if it is any lower;
(e) PoP On Line re-charge of 1p per connection;
(f) any charges or revenue share payable to Sky Interactive (being 15% of
'gross win' less gross profit tax or 25% of 'gross win' less gross
profit tax in respect of bets placed via the AtTheRaces channel);
(g) transactions which are reversed by instruction from the card-holder's
bank (commonly referred to as charge backs) and/or which are otherwise
ultimately not received by the Customer and/or which are otherwise
attributed to fraud;
(h) charges levied by electronic payment and/or credit card organisations
in respect of such monies received, such charges to be capped at 4.5%
of Net Revenue; and
(i) the cost of any 'free bets' or 'free chips' provided to users as a
promotional or marketing activity and which are used as stakes on the
Applications.
1.5 All DEVELOPMENT FEES and REVENUE SHARE shall be paid by the Customer to
TWTV. TWTV shall split such monies between the Service Providers on a
50/50% basis.
1.5.1 TWTV shall receive all DEVELOPMENT FEES and REVENUE SHARE from
Customer as per Clause 3.2.1 of the Agreement.
1.5.2 TWTV shall issue Z4P with a report detailing the total sum of Net
Revenues generated by the Customer, the total Net Revenues received by
TWTV and Z4P's share of the Net Revenues (the "REVENUE REPORT")
1.5.3 Immediately upon receipt of the Revenue Report, Z4P shall issue TWTV
with an invoice for Z4P's share of the Net Revenues, to be paid to Z4P
within five (5) days of the receipt of such invoice by TWTV.
1.6 Any changes requested by the Customer to this Statement of Work (including
any component of or deliverable comprised within the Project Specification)
or any other additional work outside the scope of this Statement of Work
will be dealt with through the Change Control Request process set out in
Schedule 1.
2. AUDIT RIGHTS IN RELATION TO DEDUCTIONS
The Service Providers shall have the right at their own expense to appoint
an independent auditor to inspect or audit the Customer's records and
accounts for the purpose of verifying the Net Revenue and any deductions
made by the Customer in accordance with paragraph E.1.4 above during the
period not exceeding 12 months from the date the audit commences, such
audit to be undertaken no more than once in every twelve (12) month period
during the Term and once in the twelve (12) month period following the
expiry of the Term, and on not less than thirty (30) days' prior written
notice to the Customer and subject always to such independent auditor
signing a confidentiality agreement with the Customer on terms reasonably
acceptable to the Customer.
3. PAYMENT TERMS
3.1 All invoices submitted by the Service Providers to the Customer shall be
payable on thirty (30) days terms.
3.2. The fees set out above in this section E fall under the definition of
"Price" as per the Agreement.
27
3.3 All sums payable under this Agreement are exclusive of and subject to Value
Added Tax and any other duties and/or taxes which may become due and
payable from time to time.
F. INTENTIONALLY DELETED
G. INTENTIONALLY DELETED
H. TERM
1. This Statement of Work shall be for a period from the date of signature of
this Statement of Work for a period of five (5) years ("TERM") and shall
continue automatically for further periods of one (1) year unless and until
terminated by either party on ninety (90) days' prior written notice to
take effect no earlier than the end of the 5th year.
2. Without prejudice to the obligations of the Service Providers under the
service level agreement set out in Annex A the warranty set out in Clause
6.1.4 shall only apply to each Application under this Statement of Work
for the duration of the following warranty period: from the time that the
relevant Application is launched until the end of a period of nine (9)
months following the time when the Customer stops making available the
relevant Application.
I. UNDERTAKING
The Service Providers (together or separately) undertake not to develop
and/or provide (and/or assist any third party to develop and/or provide) to
any third party any roulette game which is identical or substantially
similar to the look and feel of any version of the roulette game to be
developed by the Service Providers for the Customer pursuant to this
Agreement For the avoidance of doubt and subject to the foregoing, the
Customer acknowledges that the Service Providers shall be free to create
and develop other software versions of the casino game commonly known as
"roulette" for other third parties
IN WITNESS WHEREOF, the parties have caused this Statement of Work to be
executed by persons duly authorized as of the date stated below.
Date: April 17, 2006
Customer TWTV
By: /s/ David Briggs By: /s/ Jean de Fougerolles
- --------------------------- ---------------------------
Name: David Briggs Name: Jean de Fougerolles
Title: Maneging Director Title: Chief Executive Officer
Z4P
By: /s/ Shimon Citron
---------------------------
Name: Shimon Citron
Title: Chief Executive Officer
28
ANNEX A
SERVICE LEVEL AGREEMENT
A. FAULT ESCALATION:
Should either the Service Providers or Customer's staff have any technical
queries with the Service or have a need to advise each other of any
platform related issues (including Faults), all calls and/or emails (as
appropriate) should be directed to the persons listed below in the first
instance.
1.1 TWTV
INITIAL CONTACT POINT
---------------------
NAME POSITION TELEPHONE EMAIL
---- -------- --------- -----
Customer Helpdesk Customer Helpdesk 020 7665 4434 ladbrokessupport@twowaytv.co.uk
FIRST ESCALATION
----------------
NAME POSITION DIRECT LINE OTHER
---- -------- ----------- -----
Ben Tyson-Norrman DTV/IT Manager +44 (0) 7976 230429 ben@twowaytv.com
ZONE 4 PLAY
-----------
Gili Levy VP - R&D +972 3 647 1884 gil@zone4play.com
1.2 Customer
INITIAL CONTACT POINT (DURING BUSINESS HOURS)
---------------------------------------------
NAME POSITION DIRECT LINE OTHER
---- -------- ----------- -----
Technical issues: Senior Project 020 8515 5262 reena.parmar@ladbrokes.co.uk
Reena Parmar Manager (mobile: 07855 275737)
Commercial issues: Product Development 020 8515 5299 robert.davenport@ladbrokes.co.uk
Rob Davenport Manager (mobile 07977 036042)
FIRST ESCALATION (OUTSIDE BUSINESS HOURS)
-----------------------------------------
NAME POSITION DIRECT LINE OTHER
---- -------- ----------- -----
Technical issues: Infrastructure 07855 275 754 daniel.matlock@ladbrokes.co.uk
Daniel Matlock Administrator
Technical issues, Senior Project 020 8515 5262 reena.parmar@ladbrokes.co.uk
alternative contact: Manager (mobile: 07855 275737)
Reena Parmar
Commercial issues: Product Development 020 8515 5299 robert.davenport@ladbrokes.co.uk
Rob Davenport Manager (mobile 07977 036042)
29
B. SUPPORT
1. SUPPORT:
1.1 The Service Providers will provide the Customer with Support for the Term
of this Agreement. Support will comprise the correction of Faults. In this
Service Level Agreement, references to any "FAULT" shall mean a complete or
partial failure or function degradation of all or any part of any Project
Deliverable which constitutes non-compliance with the Project Specification
and/or which significantly adversely impacts on an end user's experience of
the Applications as made available from time to time on the Sky Platform
which is solely caused by the Project Deliverable's non-compliance.
1.2 The Service Providers offer direct maintenance and Fault Resolution
services for faults in its own hardware platform and software, and support
to resolve any issues that there may be with third party systems or
services ("EXTERNAL FAULT"). Customer recognises that the Service Providers
are not in a position of direct control over third party systems and
therefore cannot be responsible for or guarantee Resolution of any External
Fault.
2. HELPDESK
The Customer will be able to use the numbers and/or e-mail addresses set
out in A.1.2 above (the "CUSTOMER HELPDESK") to contact personnel at the
Service Providers to report Faults 24 hours a day, 365 days a year and to
order services or make enquiries and obtain other technical support during
Business Hours on Business Days. Such personnel shall be suitably trained
and the Service Providers shall ensure that the Customer Helpdesk is
staffed by an appropriate number of staff at all times during the Term.
3. FAULT REPORTING AND FAULT REPAIR
3.1 The Customer will report Faults in the Service via the Customer Helpdesk.
3.2 Prior to making a Fault report or support call, the Customer must use
reasonable diagnostic testing to determine that, to the reasonable belief
of the Customer, it is the Service and/or any Project Deliverables which is
responsible for the Fault and not any External Fault, other associated
system or connectivity. The Customer shall not be liable to the Service
Providers for any losses, costs and/or expenses if the Service Providers
subsequently discovers that the Fault is caused by any system or
connectivity other than the Service and/or any Project Deliverable provided
that the Customer uses the reasonable diagnostic testing referred to above.
3.3 Where the Customer reports a Fault in the Service and/or any of the Project
Deliverables or makes a request for assistance, an initial assessment will
be undertaken by TWTV, a Fault reference provided and a priority level
discussed and agreed with the Customer.
3.4 Progress updates will be provided by the Service Providers in writing or by
telephone to the Customer:-
3.4.1 on a regular basis during Business Hours;
3.4.2 on resolution of the Fault; and
3.4.3 on any change of anticipated resolution target time.
30
4. SERVICE RESTORATION
Each of the priorities has the associated target clearance time set out
below. The Service Providers shall use best endeavours to Resolve Faults in
accordance with such target times.
SERVICE LEVEL TARGET FOR RESOLUTION IMPACT OF FAULT
------------- --------------------- ---------------
Priority 1 Faults 99% Resolution within 4 The Service and/or any Project
hours of reporting of Deliverables is not operational
Fault to TWTV or is inaccessible to end users
of the Sky Platform;
Priority 2 Faults 99% Resolution by the end Service is degraded, and/or
of the next Business Day there is a marked reduction in
after reporting of Fault time to access the Service
to TWTV and/or any Project Deliverables
and/or a problem causing
significant reduction in
functionality
Priority 3 Faults 95% Resolution within 5 The Service and/or any Project
Business Days of reporting Deliverable is experiencing
of Fault to TWTV minor problems but is
functioning substantially.
Without prejudice to the foregoing, the Service Providers shall, in any event,
ensure that:
o all Priority 1 Faults are Resolved within 24 hours of the relevant
Fault being reported;
o all Priority 2 Faults are Resolved within 2 Business Days of the
relevant Fault being reported; and
o all Priority 3 Faults are Resolved within 10 Business Days of the
relevant Fault being reported.
For the purposes of this Service Level Agreement above "RESOLUTION" shall mean
providing either:
(a) a fix for the Fault; or
(b) a workaround to the Fault, provided that such workaround does not
significantly adversely impact on the end user experience of the Sky
Platform who use the Applications from time to time and further
provided that such workaround does not result in any costs or expenses
for the Customer; or
(c) a plan agreed with the Customer in good faith with reasonable
timelines, bearing in mind the priority of the Fault, and impacts to
fix the Fault which Fault the Service Providers shall fix within the
timeline specified in such plan.
And "RESOLVE" and "RESOLVED" shall be construed accordingly.
5. PLANNED MAINTENANCE
The Service Providers may schedule maintenance of the Service where
necessary to avoid Faults. Where possible such maintenance will be
scheduled to take place during low usage periods. Before undertaking any
such maintenance TWTV will give the Customer as much notice as possible,
and whenever practicable will agree with the Customer when the Services
will be suspended. In any event, TWTV shall not conduct maintenance in
excess of 12 hours in aggregate during any calendar month.
31