EXHIBIT 10.1
SOFTWARE LICENSE AGREEMENT
This Agreement made as of the 27 day of October, 2006
BETWEEN:
RNG GAMING LTD.
9 Myrtle Street, Douglas, Isle of Man ("GRNG")
AND
GOLDEN PALACE LIMITED
a company organized under the laws of Antigua & Barbuda
("LICENSEE")
WHEREAS
A. GRNG has all the rights in the intellectual property as set forth herein.
B. GRNG is the owner and developer and/or has all rights to license to third
parties the object code version of a computer software application that
allows multiple users to participate in online blackjack games, including
any additions, modifications, alterations, enhancements and upgrades
thereto, and the user interface related thereto (i.e. gaming client), as
well as the Internet gaming server software required to run the foregoing
(i.e. gaming server), as more particularly described in SCHEDULE B (the
"SOFTWARE"); and
C. Licensee desires to obtain a non-transferable, limited license (without the
right to sublicense, except as otherwise provided herein) to use the
Software according to the terms and conditions of this Agreement, and GRNG
has agreed to grant Licensee such license on the terms and conditions of
this Agreement; and
D. GRNG is willing to provide the Software to Licensee subject to the terms
set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
Except as defined elsewhere in this Agreement, terms that are used in this
Agreement are defined in SCHEDULE A.
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2. GRANT OF LICENSE - SUPPORT
2.1. LICENSE. Subject to the terms and conditions of this Agreement, GRNG grants
to Licensee, subject to any restrictions and limitations set forth herein
or in applicable law, a perpetual (subject only to termination in
accordance with the terms set forth herein) non-transferable (except as
provided herein) license to use, perform, present, and operate the Software
for the purpose of displaying, managing and operating Online Gaming,
through itself or through affiliates and "white label" web sites (the
foregoing shall not be deemed to constitute a sublicense) subject to the
terms of this Agreement including the exhibits (the "LICENSED RIGHTS").
Accordingly, all rights granted to Licensee pursuant to this Agreement
shall be deemed to also be granted to any affiliate of Licensee. The
Licensed Rights shall be granted for the duration of the Term. Licensee
shall further have the right to distribute and transmit the gaming client
portion of the Software to Players, and to grant to Players the right to
use the gaming client portion of the Software. GRNG will continue to have
the right to use, modify, upgrade or license the Software, as it desires,
provided that the rights of Licensee hereunder shall not be damaged or
diminished in any way. GRNG shall provide Licensee with standard and
regular modifications, upgrades or enhancements to the Software as agreed
between the Parties from time to time, and shall be obligated to license
all modifications, upgrades or enhancements to the Software to Licensee at
no additional cost to Licensee. For clarity, Licensee will not receive the
source code for the Software, but such source code shall be deposited in
escrow in accordance with the terms set forth herein. In addition, the
Licensed Rights shall extend to any new software applications released by
GRNG during the Term and such new software shall be made available to
Licensee upon the same terms and conditions as set out herein, save and
except that there shall be no Royalty Advance, implementation costs or
technical support costs applicable thereto. Notwithstanding anything else
contained herein, Licensee shall be permitted (without the prior consent of
GRNG) to grant a sublicense of the Licensed Rights to the entity which owns
and operates www.get21.com.
2.2. RESERVATION OF RIGHTS. Other than the rights explicitly granted herein,
Licensee shall have no other rights, express or implied, in the Software or
any component thereof. Without limiting the generality of the foregoing,
Licensee acknowledges that the Software, including, without limitation, any
updates, upgrades and modifications thereto provided by GRNG, and the
Documentation, is commercially valuable and proprietary to GRNG, and
Licensee agrees and undertakes not to, except as permitted in this
Agreement: (i) use the Software, or part thereof, in a service bureau or
outsourcing arrangement in support of any third-party; (ii) sell, lease,
sublicense or distribute the Software, or part thereof, or otherwise
transfer the Software other than as expressly permitted herein; (iii)
reverse engineer, decompile, disassemble, or otherwise reduce to
human-perceivable form the Software's source code, or part thereof; (iv)
modify, revise, enhance, or alter the Software other than for internal use
purposes in accordance with the terms set forth herein which shall include
modifications required in order to properly install and integrate the
Software with Licensee's technical infrastructure; and (vi) use any backup
or archival copies of the software components within the Software, or allow
any third party to use such copies, for any purpose other than to replace
an original copy in the event of the destruction of such foregoing software
components, if the Software becomes defective, in any other computer system
other than Licensee's, without GRNG's express prior written authorization.
The rights set forth herein may not be pledged, mortgaged or otherwise
encumbered by Licensee in whole or in part, except with the prior written
approval of GRNG, such approval not to be unreasonably withheld.
Notwithstanding the foregoing, nothing set forth herein shall prevent
Licensee from creating or marketing products or services that are
unrelated, or made without reference to, or use the Deliverables (as
defined in Section 2.3 below) ("LICENSEE'S IP"); PROVIDED, HOWEVER, that,
during the course of Licensee's development, formulation and marketing
efforts with respect to Licensee's IP, Licensee does not violate any of the
terms and conditions of this Agreement.
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2.3. DELIVERY OF SOFTWARE AND DOCUMENTATION. Within one hundred (100) days from
the execution of this Agreement, GRNG shall deliver to Licensee in
electronic form (i) a complete copy of the machine executable object code
of the Software (the "EXECUTABLE CODE"); and (ii) Documentation relating to
the Software necessary to run, maintain, support, and troubleshoot the
Software (which, together with the Code shall constitute the Deliverables).
Licensee may make copies of the Documentation for internal purposes only,
and only as necessary to facilitate Licensee's use of the Software subject
to the terms and conditions of this Agreement, and such copies shall remain
GRNG's Confidential Information and Intellectual Property. Licensee shall
have unrestricted `read' access to all Software files and databases. GRNG
shall keep all documentation of Software files, lay-outs and database
schemas up to date throughout the Term, and shall provide same to Licensee
upon request from time to time throughout the Term.
2.4. INTEGRATION & SET-UP Subject to payment as further detailed in SCHEDULE C,
GRNG shall integrate the Software with Licensee's technical infrastructure
in accordance with Licensee's then current Application Programming
Documentation (API). GRNG acknowledges that it has received a current copy
of Licensee's API, and Licensee agrees that it shall provide written notice
to GRNG of any changes thereto. Upon the completion of a successful and
satisfactory integration to Licensee's satisfaction, in its sole
discretion, Licensee shall provide GRNG with written confirmation of its
acceptance of the Software ("ACCEPTANCE").
2.5. ESCROW. Not later than 20 days following Acceptance and following any
upgrades, modifications or enhancements to the Software or new releases of
the Software, GRNG shall deposit the source code of the Software (or
upgrade, modification, enhancement or new release, as the case may be) in
the hands of a reputable escrow agent, in accordance with reasonable terms
to be agreed upon by the parties and such escrow agent. The source code
held in escrow shall include everything required to turn the source code
into a binary/executable code, including but not limited to build scripts
and documentation of environmental requirements such as special compiler
switches, operating systems, etc. Licensee shall automatically and
immediately have the right to have access to, and use such source code (for
the sole permitted use of utilizing the Software pursuant to the terms and
conditions set forth herein, and in accordance with all limitations agreed
to by Licensee pursuant to this Agreement) solely in the event of: (a)
GRNG's bankruptcy (that remains unstayed for a period of greater than 30
days); (b) GRNG's cessation as a going concern; (c) GRNG's demonstrated
inability to repay its debts in the normal course of business or (d) GRNG's
material breach of this Agreement such that Licensee is not able to use the
licensed Software in accordance with the terms of this Agreement. In the
event that any of the foregoing conditions ceases to be in effect, the
source code shall be returned to escrow and Licensee's access to such
source code shall immediately cease (following which Licensee shall certify
that it has returned such source code and that it does not retain any
copies thereof, in any form). Licensee acknowledges that the source code
shall remain, at all times, the confidential and proprietary information of
GRNG and that GRNG shall maintain and shall hold all intellectual property
rights with respect thereto.
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2.6. USE. Licensee's sole purpose for licensing the Software will be to use it
as part of its offering of Online Gaming.
2.7. OPERATION. Licensee shall be responsible for all aspects of operation of
the Software and Online Gaming service vis-a-vis the Player, including but
not limited to Player registration, Player support, financial services such
as debit, credit and credit card clearance, credit card fraud prevention
and Player collusion fraud prevention.
2.8. SUPPORT. Throughout the Term (as defined in Section 5.2) and in
consideration of the technical support fee to be paid by Licensee to GRNG
as stipulated in SCHEDULE C hereto, GRNG will provide Licensee with support
services, as set out in SCHEDULE D.
2.9. GRNG ENHANCEMENTS. GRNG will have the obligation to license to Licensee any
enhancements, additions or improvements developed by GRNG for the Software,
which and when they become available to GRNG's other licensees, at no
additional cost to Licensee.
2.10. PLAYER SUPPORT. Licensee shall have the sole responsibility to make
available and provide to Players all customer support relating to the
Software (or any part thereof).
2.11. INSTALLATION. GRNG shall assist Licensee in the installation and
configuration of simple network management protocol (SNMP) agents on all
server platforms, including Licensee's database management system. GRNG
shall recommend trigger levels for various metrics that require further
attention by either Licensee or GRNG.
2.12. REQUIRED SERVICE LEVEL. GRNG will provide Licensee with the specifications
for all hardware platforms, operating systems, database management systems
and any other ancillary products and services required to operate the
Software to achieve a satisfactory level of service to eight thousand
(8,000) concurrent logged-in Players. To the extent that Licensee discovers
after launching the Games that additional servers or products are necessary
to achieve a satisfactory level of service at the indicated number(as
determined by the parties, acting reasonably), GRNG will pay fifty percent
(50%) of the cost of the additional platforms, software or servers acquired
by the Licensee in order to achieve the required service level.
2.13. SKINS. GRNG shall develop `skins' of the Software, as requested by
Licensee and to the extent stipulated in SCHEDULE C. With respect to any
skins which Licensee requests after Acceptance of the Software, GRNG shall
develop such skins within fourteen (14) working days of request by
Licensee.
3. RESTRICTIONS ON LICENSED RIGHTS
COMPLIANCE WITH LAWS/EXPORT RESTRICTIONS. Licensee will comply with all
applicable laws, regulations and rules applicable to its use of the
Software, and will not operate or allow the Software to be operated or used
in contravention of applicable laws, rules or regulations. For avoidance of
doubt, Licensee warrants and represents that the Software shall not be used
in the USA and/or offered for use to US residents.
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Furthermore, Licensee warrants and represents that to ensure that Software
is unavailable to US residents, Licensee shall:
o Block any US option of real money registration.
o Block the US player payment method (credit cards and any additional
payment instruments).
o IP block - any player, whose IP, as provided by his ISP, is originated
in the US will be blocked from depositing money.
4. FEES
4.1 FEES. In consideration of the grant of the Licensed Rights, Licensee will
pay to GRNG fees in accordance with SCHEDULE C, including but not limited
to a revenue share ("ROYALTY"). All payments of the Royalty shall be paid
on a monthly basis by wire transfer, to an account designated in writing by
GRNG, and shall be due, for each calendar month within fourteen (14) days
after the end of each such calendar month.
4.2 ROYALTY ADVANCE. Notwithstanding s.4.1, Licensee shall pay to GRNG an
advance on the Royalty ("ROYALTY ADVANCE"), in accordance with SCHEDULE C.
The Royalty Advance shall be applied towards the Royalty otherwise due and
payable in accordance with s.4.1 herein, and no Royalty shall be payable by
Licensee until the Royalty Advance has been fully applied.
4.3 ROYALTY ADJUSTMENT. Notwithstanding anything else contained herein, it is
understood and agreed that the Software is being licensed by Licensee on a
`most favoured licensee' basis. Accordingly, if, at the end of any calendar
year during the Term, it is determined that one or more licensees of GRNG
have paid an effective average royalty over such calendar year which is
less than the Royalty percentage paid by Licensee (the "Lowest Royalty
Percentage"), Licensee shall be entitled to an adjustment ("Adjustment") of
the Royalty paid for such calendar year equal to the difference between the
Royalty paid by Licensee and the royalty which would have been payable by
Licensee at the Lowest Royalty Percentage. The Adjustment shall be payable
by way of set-off against future Royalties owing for the ensuing calendar
year or, upon termination of the Agreement, by way of immediate payment by
GRNG to Licensee. Throughout the Term, GRNG shall provide to Licensee all
information, documentation and records required for Licensee to confirm
whether an Adjustment is required.
4.4 TAXES. Licensee is solely responsible for payment of any applicable taxes
assessed upon and payable by Licensee (including sales or use taxes,
intangible taxes, and property taxes) resulting from its acceptance of this
license or from its possession and use of the Software.
4.5 LATE PAYMENTS. Failure to pay any amount in accordance with this Agreement,
on the due date, will be subject to a late charge of 1.0% per month (12%
per year), or the maximum lawful rate, whichever is less, compounded
monthly, until paid in full.
4.6 OTHER EXPENSES RELATED TO USE OF SOFTWARE. Licensee will be solely
responsible for all costs arising out of or in connection with its use of
the Software (including without limitation payment processing, payment
fraud, collusion prevention, Player service, marketing and chat and
Blackjack room management).
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4.7 REPORTS. Together with each payment of Royalties, Licensee shall submit to
GRNG a Royalty report in a form mutually agreed by the parties which shall
be certified by an authorized representative of Licensee and shall state
the breakdown of the Rake.
4.8 RECORDS. It is agreed by the parties hereto that all computations relating
to determination of the amounts of Royalties due and payable pursuant to
this Agreement shall be made in accordance with internationally recognized
and generally accepted accounting principles.
4.9 AUDIT. During the Term of this Agreement and for one (1) year after
termination of this Agreement, GRNG shall be entitled to audit books and
records of Licensee which pertain to this Agreement at any time, but no
more than once a year, for the sole purpose of confirming the accuracy of
payments due hereunder. Any such audit shall be performed upon no less then
5 days' prior written notice, and during normal business hours and at
GRNG's expense by recognized regional or national accounting firms with a
presence in the UK; provided, however, if such audit reveals an
underpayment of five percent (5%) or more of the amount that should have
been paid to GRNG for the period audited, then Licensee shall bear the
reasonable expense of such audit in addition to the deficiency. In the
event of any underpayment of Royalties, Licensee shall promptly remit to
GRNG all amounts due. In the event of any overpayment of Royalties, GRNG
shall promptly remit to Licensee the amount of such overpayment. All
individuals or entities participating in the audit pursuant to this Section
shall execute a confidentiality agreement, which shall be reasonably
approved by Licensee.
5. TERM & TERMINATION
5.1 INITIAL TERM. The initial term of this Agreement shall be four (4) years
commencing on the Effective Date and terminating 4 years later, unless or
until otherwise terminated pursuant to the terms set forth herein (the
"Initial Term").
5.2 RENEWAL TERMS. This Agreement shall automatically renew for successive
renewal terms of one (1) year each ("Renewal Terms"), unless Licensee in
its sole discretion gives written notice, not less than one hundred twenty
(120) days prior to the end of the then-current term, of its intention to
terminate this Agreement at the end of the then-current term. The Initial
Term and any Renewal Terms shall be referred to as the "Term".
5.3 TERMINATION. This Agreement may be terminated only: (i) by Licensee, upon
providing no less than six (6) months' prior written notice to the other
party; (ii) by either party in the event the other party has committed a
material breach including but not limited to payment of any amounts due
pursuant to SCHEDULE C, infringement of Intellectual Property or breach of
confidentiality obligations of Licensee set forth in this Agreement, all
provided that such breach has not been cured within 30 days after written
notice thereof has been delivered by the non-breaching party to the
breaching party; (ii) by Licensee, upon material breach of GRNG of this
Agreement such that Licensee is not able to use the licensed Software in
accordance with the terms of this Agreement; or (iii) by mutual written
agreement of the parties.
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5.4 NO TERMINATION LIABILITY. In the event of termination by either party in
accordance with any of the provisions of this Agreement, neither party
shall be liable to the other, as a result of such termination, for
compensation, reimbursement or damages on account of the loss of
prospective profits or anticipated sales or on account of expenditures,
inventory, investments, leases or commitments in connection with the
business or goodwill of either party.
5.5 CONSEQUENCES OF TERMINATION. Upon termination of this Agreement, the
license granted to Licensee in this Agreement shall terminate and Licensee
shall immediately discontinue all further use of the Software promotion,
marketing or sale, leasing, licensing or any other distribution of the
Software. Without limiting the generality of the foregoing, upon
termination Licensee shall (i) promptly (within 5 days) return to GRNG any
tangible property representing disclosed Confidential Information divulged
by GRNG and all copies thereof; and (ii) immediately erase/delete any such
Confidential Information held by it in electronic form, and certify as to
such return and/or destruction. Notwithstanding the aforementioned,
Licensee may continue, to provide maintenance and support services to its
existing users.
5.6 TERMINATION FOLLOWING BREACH OF CONFIDENTIALITY. If Licensee breaches
Section 12.8, GRNG may terminate the Licensed Rights and this Agreement
with immediate effect, by giving Licensee written notice of the breach.
5.7 INSOLVENCY/BANKRUPTCY. Either party hereto may terminate this Agreement
with immediate effect, by providing the other party with written notice, if
the other party has experienced an event of Insolvency.
5.8 NON-EXCLUSIVE REMEDIES. The remedies set forth in this Section 5 are
non-exclusive and any waiver of any of such rights and remedies shall not
constitute a waiver of any other rights or remedies that either party may
hold.
6. INTELLECTUAL PROPERTY OWNERSHIP
6.1 SOFTWARE. GRNG DOES NOT SELL OR TRANSFER TITLE IN THE SOFTWARE, OR ANY PART
THEREOF, TO LICENSEE, OR ANY THIRD PARTY. Other than the Licensed Rights
and as further set forth herein, Licensee acquires no rights whatsoever in
connection with the Software and the Documentation. Licensee shall not
assert any claim of ownership of, or any claim to the Software or
Intellectual Property of GRNG by reason of Licensee's use thereof or
otherwise and shall not challenge or allow any party to challenge the
validity of the Software or Intellectual Property or GRNG's ownership of
the Software or Intellectual Property. It is expressly agreed that the
ownership of all right, title and interest in the Software and any copies
thereof, as well as any updates or new releases thereto, and any
Intellectual Property associated therewith, is and shall remain vested
solely in GRNG and shall be owned solely and exclusively by GRNG. Nothing
in this Agreement shall constitute a waiver of GRNG's Intellectual Property
Rights under any law, or be in any way construed or interpreted as such.
Licensee shall retain sole right, title and interest to Licensee's IP, and
nothing in this Agreement shall constitute a waiver of Licensee's
Intellectual Property Rights in and to Licensee's IP, under any law, or be
in any way construed or interpreted as such. GRNG shall not assert any
claim of ownership of any rights with respect to Licensee's IP and shall
not challenge the validity of Licensee's IP or Licensee's ownership
thereof. Notwithstanding the above, any derivative works made pursuant to
the request or specifications of Licensee by either party hereto
(hereinafter: "Derivative Works") shall be jointly owned by the parties and
no party shall act with respect to Derivative Works without the prior
written consent of the other party.
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6.2 FURTHER ASSURANCES. At GRNG's reasonable request and sole expense, Licensee
shall cooperate with and provide reasonable assistance to GRNG (including,
without limitation, execution and delivery of affidavits, declarations,
oaths, samples, exhibits, specimens and any other documentation) in order
to protect GRNG's Intellectual Property rights to which Licensee has access
via the exercise of the Licensed Rights.
7. REPRESENTATIONS AND WARRANTIES
7.1 REPRESENTATIONS AND WARRANTIES OF GRNG. GRNG warrants that: (i) it has full
power and authority to execute and deliver this Agreement and to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement, and the performance
by Licensee of its obligations hereunder, and the consummation of the
transactions contemplated hereunder, have been duly authorized by GRNG.
This Agreement, upon execution and delivery by Licensee and GRNG, will
constitute the legal, valid and binding obligations of GRNG, enforceable
against GRNG in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, or similar laws affecting
creditors' rights generally or by general principles of equity; (ii) it is
authorized to enter into this Agreement, and that it is authorized to grant
the rights contemplated to be granted in this Agreement to Licensee; (iii)
the Software and Documentation do not infringe on any copyright, patent or
other proprietary rights (including trade secrets) of any third party; (iv)
the Software will be free from material errors and will operate
substantially in accordance with the related Documentation; and (v) GRNG
will have tested the Software using virus-checking methods and quality
assurance procedures that are utilized by similar operators within its
industry. In the event that GRNG fails to correct any non conformance of
the Software or to replace the non-conforming Licensed Software within a
reasonable period of time which shall not exceed a period of thirty (30)
days, Licensee may elect, at its option, to terminate the Agreement. In
such a case GRNG's sole obligation will refund to Licensee to all fees
previously paid to GRNG by Licensee. OTHER THAN THE WARRANTIES SET FORTH
ABOVE GRNG DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. It is acknowledged that the foregoing
shall not in any way derogate from GRNG's support obligations as set out in
SCHEDULE D.
7.2 REPRESENTATIONS AND WARRANTIES OF LICENSEE. Licensee has full power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement, and the performance
by Licensee of its obligations hereunder, and the consummation of the
transactions contemplated hereunder, have been duly authorized by Licensee.
This Agreement, upon execution and delivery by Licensee and GRNG, will
constitute the legal, valid and binding obligations of Licensee,
enforceable against Licensee in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, or
similar laws affecting creditors' rights generally or by general principles
of equity.
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8. INDEMNIFICATION AND LIMITATION OF LIABILITY
8.1 BY LICENSEE. Licensee agrees to defend, indemnify and hold harmless GRNG,
its affiliates, and its and their stockholders, directors, officers,
employees, and assignees and shall pay all finally adjudicated losses,
damages, fees, expenses or costs (including reasonable attorney's fees)
(individually a "Loss" or collectively "Losses") as and when such Losses
are suffered, arising out of or relating to third party claims or demands
arising out of: (i) any material breach of a representation or warranty of
Licensee in this Agreement; or (ii) Licensee's use of the Software
(including use in combination with other software, hardware or equipment
(the "Combination") where such Combination is a basis for the claim) where
the Software itself is not the basis for the claim. GRNG shall promptly
notify Licensee of any third party claim, demand, suit or proceeding, and
Licensee will defend and continue the defense of the third party claim,
demand, suit or proceeding at Licensee's expense. GRNG agrees to provide
reasonable cooperation to Licensee at Licensee's expense, in the defense or
settlement of any third party claim, demand, suit or proceeding. If
Licensee fails to undertake and continue such defense, GRNG shall have the
right (but not the obligation) to make and continue such defense as it
considers appropriate, and the reasonable expenses and costs thereof,
including but not limited to attorneys' fees, out-of-pocket costs and the
costs of an appeal and bond thereof, together with the amounts of any
judgment rendered against GRNG shall be paid by Licensee upon demand,
provided the claim is indemnifiable by Licensee as provided herein. Nothing
herein shall prevent GRNG from defending, if it so desires in its own
discretion, any third party claim, demand, suit or proceeding at its own
expense through its own counsel, notwithstanding that the defense thereof
may have been undertaken by Licensee.
8.2 BY GRNG. GRNG agrees to defend, indemnify and hold harmless Licensee, its
affiliates, and its and their stockholders, directors, officers, employees,
and assignees and shall pay all finally adjudicated Losses as and when such
Losses are suffered, arising out of or relating to third party claims or
demands arising out of: (i) any material breach of a representation or
warranty of GRNG in this Agreement; or (ii) alleging that the use of any
part of the Software by Licensee, as granted to Licensee in this Agreement,
infringes upon the rights of that third party to any part of the Software.
Licensee shall promptly notify GRNG of any such claim, demand, suit or
proceeding, and GRNG will defend and continue the defense of such third
party claim, demand, suit or proceeding at GRNG's expense. Licensee agrees
to provide reasonable cooperation to GRNG, at GRNG's expense, in the
defense or settlement of any such third party claim, demand, suit or
proceeding. If GRNG fails to undertake and continue such defense, Licensee
shall have the right (but not the obligation) to make and continue such
defense as it considers appropriate, and the reasonable expenses and costs
thereof, including but not limited to attorneys' fees, out-of-pocket costs
and the costs of an appeal and bond thereof, together with the amounts of
any judgment rendered against Licensee shall be paid by GRNG, provided the
claim is indemnifiable by GRNG as provided herein. Nothing herein shall
prevent Licensee from defending, if it so desires in its own discretion,
any such third party claim, demand, suit or proceeding at its own expense
through its own counsel, notwithstanding that the defense thereof may have
been undertaken by GRNG. In addition to the Indemnification obligations set
forth above, if the Software becomes the subject of a claim as set forth in
this Section 8.2, GRNG shall, at its discretion: (i) obtain a license from
such third party for the benefit of Licensee; (ii) replace or modify the
Software ("Replacement Software") so it is no longer the subject of a claim
so long as such Replacement Software performs substantially the same
functions as the Software; or (iii) if neither of the foregoing is
commercially feasible, terminate this Agreement and deliver to Licensee the
License Fee paid by Licensee to GRNG during a period of 1 year prior to the
event that gave rise to the claim.
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8.3 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES FOR LOST PROFITS,
INTERRUPTION OF BUSINESS, LOSS OF TECHNOLOGY OR LOST DATA, HOWEVER ARISING,
OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SUCH PARTY
IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHETHER UNDER THEORIES OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN
IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Moreover, Licensee hereby undertakes to adopt all reasonable measures to
limit the impact of any error or defect in the Software or any components
or Derivatives Works thereof (by, among other things, backing up data,
adopting procedures to identify and correct errors, replace any lost or
damaged media and reconstruct data). IN THE EVENT THAT, NOTWITHSTANDING THE
TERMS OF THIS SECTION, GRNG IS FOUND LIABLE FOR DAMAGES BASED ON ANY CLAIM,
FOR ANY CAUSE OF ACTION UNDER THIS AGREEMENT. ITS TOTAL LIABILITY UNDER
SUCH CLAIM SHALL NOT EXCEED THE ROYALTY PAYMENTS MADE BY LICENSEE TO GRNG
HEREUNDER DURING THE PERIOD OF TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE
EVENT THAT GAVE RISE TO SUCH CLAIM
9. TRADEMARKS AND LOGOS
This Agreement in no way confers upon either party the right to use,
without such party's written consent, in any fashion the other party's
name, trade name(s), trademarks or logos, or trade on the goodwill of the
other.
10. REGULATORY COMPLIANCE
Licensee represents that it maintains a compliance program to reasonably
protect and preserve its name, reputation, integrity, and goodwill and to
monitor compliance with the requirements established by gaming regulatory
authorities in various jurisdictions around the world.
11. ASSIGNMENT
Neither party shall have the right to assign this Agreement without the
prior written consent of the other party, which consent shall not be
unreasonably withheld or delayed; provided, however, that either party may
assign this Agreement to persons or entities controlling, controlled by, or
under common control with the assignor, affiliates of assignor or
successors-in-interest or successors-in-title of assignor with thirty (30)
days prior written notice to the non-assigning party (and provided that
such parties assume all of the obligations set forth herein, in writing),
and in the event of a merger, consolidation or acquisition of all or
substantially all of the assets or business of such party (provided such
successor company assumes in writing, all of the obligations set forth
herein). This Agreement shall be binding upon and inure to the benefit of
the successors and the permitted assigns of the respective parties hereto.
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12. GENERAL
12.1 US DOLLARS. All payment references in this Agreement are to U.S. Dollars.
12.2 ENTIRE AGREEMENT. This Agreement, including its preamble, the Schedules
attached hereto and incorporated herein by this reference, contain the
entire agreement between the parties hereto with respect to the subject
matter hereof and supersede any previous understandings or agreements,
whether written or oral, in respect of such subject matter. This Agreement
may not be amended orally, but may be amended only by a written instrument
signed by the parties hereto.
12.3 REQUIRED APPROVALS. The parties hereto shall obtain all necessary licenses,
permits and approvals of this Agreement required by the any governmental
agency, regulatory or gaming board or authority prior to the exercise of
the Licensed Rights hereunder.
12.4 NO WAIVER. A breach of a provision hereof shall not be considered to have
been waived or consented to unless such waiver or consent is in writing and
signed by the party claimed to have so waived or consented. Any waiver or
consent by a party of a breach of a provision hereof by any other party
shall not constitute a waiver or consent of any other breach of a provision
hereof.
12.5 RELATIONSHIP. The parties shall operate and shall be considered solely as
independent contractors. Neither of the parties shall act or represent or
hold itself out as having authority to act as an agent or partner of the
other party, or in any way bind or commit the other party to any
obligations. Any such act will create a separate liability in the party so
acting to any and all third parties affected thereby. The rights, duties,
obligations and liabilities of the parties shall be several and not joint
or collective, and nothing contained in this Agreement shall be construed
as creating a partnership, employment relationship, joint venture, agency,
trust or other association of any kind, each party being individually
responsible only for its obligations as set forth in this Agreement.
12.6 SEVERABILITY. Should any provision of this Agreement or in an attached
schedules or Exhibits be held by a competent body to be illegal, invalid or
unenforceable, such unenforceability or invalidity shall not affect the
enforceability or validity of the remaining portions of the Agreement and
such unenforceable or invalid portion(s) shall be severable from the
remainder of the Agreement.
12.7 FURTHER ASSURANCES. Both parties agree to execute such other documents and
take all such actions as the parties determine are reasonable to effect the
terms of this Agreement.
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12.8 CONFIDENTIALITY.
12.8.1 DUTIES OF CONFIDENTIALITY. Each party hereto agrees: (i) to hold
Confidential Information of the other party in the strictest
confidence and protect such Confidential Information to the same
extent and by the same means it uses to protect the confidentiality of
its own proprietary or confidential information that it does not wish
to disclose, but in any event, at least to a reasonable extent and by
reasonable means; (ii) not to make use of or reproduce Confidential
Information (other than as permitted hereunder or to perform its
obligations hereunder); (iii) to disclose the Confidential information
to only those of its employees and agents who have a need to know it
in the course of their duties; and (iv) to require its employees and
agents to protect Confidential Information in a manner commensurate
with this Section 12.8. To this end, the parties shall obtain and
maintain in effect written agreements with each of its employees
and/or consultants who participate in any of the work being performed
under this Agreement. Such agreements shall impose an obligation of
confidence on such employees and consultants with respect to the
Confidential Information.
12.8.2 PUBLICITY. The parties may not publicize or make any press
announcements regarding the arrangements with respect to the
relationship set forth herein without the reasonable written consent
of the other party subject to legal obligations.
12.8.3 PLAYER DATA. GRNG acknowledges and agrees that all information
and/or data concerning Players is the sole and exclusive property of
Licensee and constitutes Confidential Information proprietary to
Licensee, and shall be subject to the duties of confidentiality set
out in this Agreement. Nothing in this Agreement shall convey any
rights or interest whatsoever to GRNG with respect to Player
information or data, and GRNG shall not copy, transfer, sell, use or
access Player information or data in any manner which is not expressly
permitted herein.
12.8.4 INJUNCTIVE RELIEF. If either party breaches any of its obligations
with respect to confidentiality or unauthorized use or disclosure of
Confidential Information hereunder, the non-breaching party is
entitled to seek equitable and injunctive relief in addition to all
other remedies that may be available to protect its interest.
12.9 SURVIVAL. The rights and obligations pursuant to Sections 1, 2.2, 2.5, 4.1,
4.2, 4.3, 4.4, 4.7, 5.3, 5.4, 5.7, 6, 7.1 (but only insofar as limitation
of warranties), 8, 12, and SCHEDULE C, and those rights and obligations,
which by their nature are designed to survive termination, shall survive
the termination of this Agreement for any reason.
12.10 GOVERNING LAW; VENUE JURISDICTION. This Agreement, and all rights and
obligations of the parties relating to this Agreement, shall be governed by
and construed in accordance with the internal laws of the United Kingdom
and shall be construed and interpreted in accordance with its laws, without
regard to conflict of law provisions. The parties hereby submit to the
exclusive personal jurisdiction of the courts of competent jurisdiction
residing in London, England and each party hereby consents to the
jurisdiction and venue of such courts.
12.11 NOTICES. Any notice required or permitted to be given hereunder shall be
in writing and shall be served upon the other by express carrier and shall
be considered delivered upon sender's confirmation of receipt by the
receiving party. Such notices may alternatively be made by confirmed
facsimile transmission, or by express mail with confirmation by express
carrier. Any notice to GRNG shall be addressed to:
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GRNG.
9 Myrtle Street, Douglas, Isle of Man
Attn: CEO/CFO
Facsimile: ______________
Telephone: _____________
or such other individual(s) or address(es) as may be designated in writing
by GRNG.
Any notice to Licensee shall be addressed to:
Golden Palace Ltd.
11 Old Parham Road
St. John's Antigua
Attn: Richard Rowe
Facsimile: 450-635-1118
Telephone: 450-444-7771
or such other individual(s) or address(es) as may be designated in writing
by Licensee.
12.12 HEADINGS. The headings to the Articles, Sections, Subsections and
Schedules contained herein or attached hereto are for identification
purposes only and are not to be construed as part of this Agreement. Unless
otherwise stated, all references in this Agreement to Articles, Sections,
Subsections and Schedules refer to Articles, Sections, Subsections and
Schedules of this Agreement.
12.13 COUNTERPARTS. This Agreement may be executed in one or more counterparts,
including facsimile counterparts, any one of which need not contain the
signatures of more than one party, but all of which, taken together, shall
constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto, by their duly authorized
representatives, have executed this Agreement as of the date set below their
respective signatures.
RNG GAMING LTD. GOLDEN PALACE LIMITED
By: /s/ Citron Shimon By: /s/ Richard Rowe
- --------------------- --------------------
Name: Citron Shimon Name: Richard Rowe
Title: Chief Executive Office Title: Chief Executive Officer
Date: October 31, 2006 Date: October 25th 2006
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SCHEDULE A
DEFINITIONS
1. DEFINITIONS. The following terms, when used in this Agreement with
initial capital letters, shall have the respective meanings set forth below.
1.1. "CONFIDENTIAL INFORMATION" means the information of one party
that is disclosed to the other party in any form whatever and marked as
"Confidential", "Proprietary", "Discloser Private", or "Restricted" by the
discloser, or is information of such nature that the recipient should
reasonably know it is confidential information of the discloser. It
includes but is not limited to the contents of the Agreement, the source
code for the Software, Intellectual Property and all data and information
relating to the business and affairs of a party (including information
concerning Players) and, in the case of confidential information of GRNG,
includes the Software and Documentation and any other proprietary and trade
secret data and information of GRNG to which Licensee gains access.
Confidential Information shall not include information that: (i) is or has
become publicly known through no wrongful act or breach of any obligation
of confidentiality; (ii) was rightfully received by the recipient on a
non-confidential basis from a third party (provided that such third party
is not known to the recipient to be bound by a confidentiality agreement
with discloser or another party); (iii) that recipient can prove was
lawfully known to recipient prior to the time it was disclosed to recipient
by the disclosing party or learned by recipient under this Agreement; or
was independently developed by the receiving party without access to or use
of the disclosing party's confidential information.
1.2. "DOCUMENTATION" means all user manuals, documents, drawings and
other written or electronic materials pertaining to the Software or which
is provided by GRNG in accordance therewith.
1.3. "EFFECTIVE DATE" means November 13, 2006.
1.4. "GAME" means the multi-player blackjack games or other
applications based on the Software.
1.5. "INSOLVENCY" means any of the following: the appointment of or
the application to a court for the appointment of a liquidator,
administrator, administrative receiver or receiver, which is not removed or
cancelled within 30 days, any proposal by the party for or the entering
into of a scheme or arrangement or composition with or for the benefit of
creditors, which is not removed or cancelled within 30 days, a resolution
or proposed resolution to wind it up, where the value of its assets is less
than the amounts of its liabilities including any contingent or prospective
liabilities, which is not removed or cancelled within 30 days, becoming
unable to pay its debts as and when they fall due (excluding non-payment of
minor debts incurred in the ordinary course of business and which do not
pose a material threat), where execution or other process issued on a
judgment, decree or order of any court in favor of any creditor of the
party in respect of a liability of the same is returned unsatisfied in
whole or in part, ceasing to carry on business, or undergoing any procedure
comparable or analogous to any of the foregoing under the laws of any
competent jurisdiction and "Insolvent" shall be construed accordingly.
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1.6. "INTELLECTUAL PROPERTY" means (i) patents, patent applications,
patent disclosures and inventions (whether or not patentable and whether or
not reduced to practice), including but not limited to any reissues,
continuations, continuations-in-part, divisions, revisions, extensions or
reexaminations thereof; (ii) trademarks, service marks, trade dress, trade
names, corporate names, logos and slogans (and all translations,
adaptations, derivations and combinations of the foregoing) and Internet
domain names, together with all goodwill associated with each of the
foregoing; (iii) copyrights and copyrightable works; (iv) registrations,
applications and renewals for any of the foregoing; (v) trade secrets,
confidential information and know-how (including but not limited to ideas,
formulae, compositions, manufacturing and production processes and
techniques, research and development information, drawings, specifications,
designs, plans, proposals, technical data, financial and accounting data
and related information); and (vi) all other intellectual property rights
(including but not limited to mask works).
1.7. "INTERNET" means the global computer information network commonly
referred to as the Internet and any successor or ancillary network,
including, without limitation, what is currently referred to as Internet.
1.8. "LAUNCH" shall mean the date upon which the Multi player Black
Jack tournament game operated by Licensee and based on the Software first
becomes accessible for real money public play over the Internet;
1.9. "LICENSED RIGHTS" shall have the meaning set forth in Article 2.1
of this Agreement.
1.10. "ONLINE GAMING" means the presentation of gaming applications
via the Internet where a participant places a wager on a game or games, the
outcome of which is uncertain.
1.11. "OPERATORS" means Licensee's call centre representatives and/or
risk agents who use the Software's back-end tools.
1.12. "PLAYER(S)" means the Online Gaming customers of Licensee or any
of Licensee's affiliates.
1.13. "RAKE" shall mean the fee charged, in Licensee's sole
discretion, from Players who participate in the Game.
1.14. "USERS" means Players and Operators.
1.15. "SKIN" means a graphic design of the client application (changes
of colors, logos and artwork).
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SCHEDULE B
Shall be furnished to the Securities and Exchange Commission upon Request
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SCHEDULE C
1. ROYALTY. The Royalty shall be calculated as fifteen percent (15%) of the
Rake.
2. LICENSE FEE . Licensee shall pay GRNG a one time license fee equal to
$400,000.
3. INTEGRATION COSTS. One time Integration costs - $350,000 includes the
integration of the Software to Licensee's back office management `cage'
software, and 13 skins of the Software (which shall be developed by GRNG
from time to time throughout the Term, at Licensee's discretion).,
4. TECHNICAL SUPPORT. Technical support for the initial one year period, as
described in SCHEDULE D equal to $150,000 the sums payable under sections
2,3 and 4 above, totaling $ 900,000 (nine hundred thousand US dollars)
shall be payable in eight monthly installments equal to $125,000 (one
hundred and twenty five thousand US dollars) commencing on January 1, 2007
and ending on August 1, 2008.
5. ROYALTY ADVANCE. The Royalty fee which will be paid in advance shall be in
the amount of One Hundred Thousand United States Dollars ($100,000.00 USD),
payable as follows:
$50,000 USD to be paid upon the Effective Date of this Agreement; and
$50,000 USD to be paid within 30 days from the Effective Date of this
Agreement.
6. HARDWARE & HOSTING. Subject to Section 2.12, Licensee shall be solely
responsible for hardware, hosting and bandwidth selection, acquisition and
costs.
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SCHEDULE D
SERVICE LEVEL AGREEMENT
DEFINITIONS.
In addition to the other capitalized terms defined herein and in the
Software License Agreement (the "Agreement") to which this Service Level
Agreement (the "SLA") is attached as SCHEDULE D, the following terms shall
have the meanings provided below:
"CRITICAL ERROR" A Critical Error occurs when a Primary Functionality of
the Software is inaccessible, unusable, inoperative or degraded or retarded
to such an extent that the User experience is materially adversely affected
and there is no Work Around or the system crashes or locks up or there is
data loss or corruption, or else where an Operator reports any error and
requests it be corrected, regardless of the magnitude of the error.
"DOWNTIME" means that the Software is inaccessible via the Internet for one
(1) minute or more, excluding (a) normal maintenance that is routinely
scheduled pursuant to Section 2.1 of this Schedule D for purposes of
"updates" and "releases" to the Software, (b) downtime caused by
malfunction of Licensee's or a third party's software or equipment or by
Licensee's negligence, or misuse of the Software and (c) downtime arising
out of Force Majeure events described in the Agreement.
"HIGH ERROR" A High Error occurs when (i) a Primary Functionality of the
Software is inaccessible, unusable, inoperative or degraded or retarded to
such an extent that the User experience is materially adversely affected
but a reasonable Work Around exists; or (ii) a Secondary Functionality of
the Software is inaccessible, unusable or inoperative and there is no Work
Around.
"MEDIUM ERROR" A Medium Error occurs when a Secondary Functionality of the
Software is inaccessible, unusable, inoperative or degraded or retarded to
such an extent that the User experience is materially adversely affected
but a reasonable Work Around exists.
"LOW ERROR" A Low Error occurs when there is an issue of minimal impact to
a Secondary Functionality of the Software and a reasonable Work Around
exists.
"PRIMARY FUNCTIONALITY" means the ability of the User to access and use the
full functionality of the Software and without which the Software is
inaccessible, unusable, inoperative or degraded or retarded to such an
extent that the User experience is materially adversely affected.
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"SECONDARY FUNCTIONALITY" means functionality which supports the Primary
Functionality of the Software but failure of which does not result in an
inability to use the Software.
"TECHNICAL SUPPORT" means all of the services described in this SLA.
"WORK AROUND" means a temporary resolution that restores the service and
operation of the Software in full accordance with the relevant
specification without loss of functionality.
2. SERVICE LEVEL OBJECTIVES.
2.1 SYSTEM AVAILABILITY.
2.1.1 Subject to the terms and conditions of the Agreement and this SLA,
GRNG shall keep the Software launched by Licensee hereunder available
99.5% of the time on a 24/7, 365-day a year basis, agreed scheduled
maintenance time pursuant to section 2.3 below excepted.
2.1.2 For each minute of Downtime (where the Software does not meet the
availability requirement set out above in Section 2.1.1) occurring
during any calendar month to the Software that is offered by Licensee
to User on a During All Hours basis, Licensee will be entitled to a
payment of credit (the "SERVICE CREDIT") against amounts payable to
GRNG under Section 2 above in such month in an amount equal to the
product of (i) the Average Daily Revenue divided by 1440 and (ii) the
number of minutes in such month of Downtime. For purposes of the
foregoing, "Average Daily Revenue" shall mean with respect to any
month (x) the sum of revenues generated in such month by the Software,
in each case less the Royalty payable to GRNG divided by (y) the
number of days in the applicable month. Notwithstanding the foregoing,
in no event shall the Service Credit in any month be greater than the
Royalty payable to GRNG under Section 2 above for such month. Licensee
shall document each Downtime occurrence and provide such documentation
to GRNG within ten (10) days of the occurrence, and must include a
description of the Downtime with the time of the event, duration, and
any diagnostic information substantiating the Downtime.
2.2 SCHEDULED DOWNTIME. Software maintenance shall be conducted by GRNG in
accordance with a schedule which has been agreed to in advance by both
Licensee and GRNG, acting reasonably, and shall in any case occur between
the hours of 10:00 Greenwich Mean Time and 14:00 Greenwich Mean Time (or as
otherwise advised in writing by GRNG from time to time so as to ensure that
maintenance is performed during "low time"). It is understood by the
Parties that the number of scheduled maintenance occurrences will be kept
to a minimum and within generally acceptable levels and in conformity with
good industry standards.
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2.3 NETWORK SERVICE PROVIDER OR INTERNET OUTAGES. Subject to Clause 2.5, GRNG
will not give Service Credit for Downtime resulting from network service
provider outages or Internet outages resulting from failures outside the
explicit control of GRNG. Licensee acknowledges that GRNG does not and
cannot control the flow of data to or from GRNG's network and other
portions of the Internet. Such flow depends in large part on the
performance of Internet services provided or controlled by third parties.
2.4 SECURITY SHUT-DOWNS. Service Credit will not be given for any events
resulting from any interruption in the provision of any Software
application due to circumstances reasonably believed by GRNG to be a
significant threat to the normal operation of the Software or integrity of
Player data and which are outside GRNG's control. In the event of such an
interruption or shutdown, GRNG will return the affected Software
application to normal operation as soon as reasonably possible. Upon
request, GRNG will provide Licensee with a copy of its security policies
then in effect.
3. TECHNICAL SUPPORT.
3.1 SCOPE. Licensee's authorized personnel (including senior call centre
representatives) will be given the telephone number and email address for
GRNG technical support personnel. GRNG shall provide 24/7 telephone support
to Licensee on issues relating to the Software.
3.2 STANDARD TECHNICAL SUPPORT. A GRNG contact will be available for standard
technical support between the hours of 8.00 a.m and 6.00 p.m Israel Time,
Sunday through Thursday. Standard technical support will cover any issue
relating to the Software.
3.3 EMERGENCY TECHNICAL SUPPORT. GRNG will provide a telephone contact number
for use outside of the standard support hours. This contact will only be
used when a Medium Error, High Error, Downtime or Critical Error condition
exists.
3.4 EXCLUSIONS FROM SUPPORT SERVICES. GRNG shall have no obligation to provide
support services for any hardware used by Licensee or for any defect or
failure to the Software caused by the improper use by Licensee or other
unauthorized personnel, but will nevertheless use all reasonable endeavours
to provide the same if requested by Licensee, subject to any additional
reasonable charge agreed by the Parties.
4. UPDATES.
GRNG shall periodically update the Software at no additional cost to
Licensee, which updates shall implement bug fixes or enhancements as
reasonably determined by GRNG in consultation with Licensee.
5. PRIORITY LEVELS FOR TECHNICAL SUPPORT.
5.1 PRIORITY LEVELS. Problems shall be categorized by Licensee according to the
priority levels set forth in this Section 5.
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5.2 CRITICAL ERRORS. GRNG shall diagnose a Critical Error within twenty-four
(24) hours of notification by Licensee and will implement a fix or a Work
Around as soon as reasonably possible and in no event more than two (2)
calendar days after initial notification by Licensee. Downtime shall be
categorized as a Critical Error.
5.3 HIGH ERRORS. GRNG shall diagnose a High Error within forty-eight (48) hours
of notification by Licensee and will implement a fix or a Work Around as
soon as reasonably possible and in no event more than four (4) calendar
days after initial notification by Licensee.
5.4 MEDIUM ERRORS. GRNG shall diagnose a Medium Error within three (3) business
days of notification by Licensee and will implement a fix or a Work Around
as soon as reasonably possible and in no event more than six (6) business
days after initial notification by Licensee.
5.5 LOW ERRORS. GRNG shall diagnose a Low Error and will implement a fix or a
Work Around as soon as reasonably possible and in no event more than twenty
(20) business days after initial notification by Licensee.
5.6 FAILURE TO COMPLY. In the event that GRNG: (1) fails to diagnose an error
within the applicable time frame set out herein, or (2) fails to implement
a fix or Work Around within the applicable time frame set out herein (in
either case, the "Deadline"), then notwithstanding anything to the contrary
contained in this Agreement, Licensee shall not be obligated to pay, and
GRNG shall not be entitled to receive, a Royalty with respect to any and
all Rake charged by Licensee during the period of time from the Deadline to
and including the date on which the error is properly diagnosed by GRNG or
a fix or Work Around is successfully implemented by GRNG, as the case may
be.
For these purposes "notification" shall commence upon the notification by
Licensee to GRNG of an error, and "days" shall mean actual, calendar days,
not business/working days.
Any change of the terms of this Schedule D shall be negotiated in good
faith, mutually agreed and will have no effect unless both Parties agree to
it in writing.
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