KERO GAMING INC.
COMMERCIAL TERMS AND CONDITIONS
RECITALS
WHEREAS, Kero Gaming Inc. (“Kero”) is the designer, developer and licensor of a gaming platform and web and mobile content management software solution for online and mobile sports fan engagement, and provides related software development and other professional services; and
WHEREAS, Client is an entity with an existing fan base and wishes to procure solutions and services for fan engagement and related purposes; and
WHEREAS, Client desires to license and use the Kero Gaming platform and content management solution, and Kero desires to grant such rights and provide from time to time software development professional services to Client, all as set forth below.
NOW, THEREFORE, in consideration of the above listed recitals and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree to the terms and conditions which follow.
DEFINITIONS.
Capitalized terms as used in this Agreement have the following meanings:“Acceptance Date” is defined in Section 4.3;
“Additional Professional Services” means the professional services to be performed by Kero or its permitted subcontractors for Client on the basis of one or more Program Configuration, work order or similar document agreed and signed by the parties, which for greater certainty are not included in the License Fees (a non-exhaustive list of possible Additional Professional Services is specified in Exhibit B of the Kero Partnership Agreement.2);
“Affiliates” means an entity which, now or in the future, directly or indirectly controls, is controlled by, or is under common control with a Party. For purposes of this definition, "control" means the direct or indirect ownership of a controlling voting securities, the right to receive more than fifty percent (50%) of the profits of the entity, or the power to direct or cause the direction of the policy decisions of the entity, whether through the ownership of voting securities, by contract or otherwise. Client shall assume liability under this Agreement for any Affiliates of Client acquiring access to the Software Platform under this Agreement.
“Confidential Information” is defined in Section 8.1;
“Critical Nonconformity” means a Nonconformity resulting in a material system crash or material instability, data corruption or loss of data, authorized users access denied or unauthorized user access granted, monetary exchanges (deposits, transfers, payments and withdraw), security related aspects, player possibility to bet and play, major modules or functionalities failure, compliance issues, absence of logs of significant player activities as well as any blocking issue preventing Client from the possibility to perform tests cases scenarios;
“Customized Integration” means the application programming interface, configuration, and/or software required to integrate third party services or Client’s systems for operation in or with the Software Platform provided to Client as a deliverable as provided herein;
“Custom Deliverable” shall mean any custom software development or documents developed or created for Client pursuant to a Program Configuration;
“Delivery” means the date on which Client is granted access to the Software Platform as defined in 4.1 of this Agreement;
“Deploy” means making a website and/or mobile experience available to the public for use by End Users;
“Derivative Work” means a revision, modification, abridgement, condensed version, expansion of Software Platform or any other form in which the Software Platform may be recast, transformed or adapted;
“Development Work” means the development work on the Software Platform and if necessary, to be carried out by Kero pursuant to the applicable Program Configuration;
“Documentation” means any printed or electronic documentation, technical manuals, operator and user manuals, flow diagrams, file descriptions, specifications, design and other written or electronic information describing the functions, operational characteristics and specifications of the Software Platform, or explaining how to install, use, maintain and/or support the Software Platform, made available by Kero from time to time;
“End User” means any individual user who the Client permits and authorizes to access and use the Software Platform through the Client Portal;
“Exhibits” means any exhibit attached to the present Agreement, each of which forms a part of this Agreement;
“Fees” means all fees payable by Client to Kero under this Agreement as set out in the attached Schedule C, including License Fees;
“Force Majeure” shall mean acts of God, acts of terrorism, war, riots, embargoes, governmental actions or regulations, fire, earthquake, flood, failures or delays of telecommunication systems or the public Internet (but excluding technology failures avoidable through proper operation of an industry standard disaster recovery plan and/or backup system) or such similar catastrophes as are beyond the control and without the material fault of the affected Party;
“Go Live Date” is defined in Section 4.4;
“Initial Term” is defined in Section 12.1;
“Intellectual Property” means all intellectual property rights and other similar proprietary rights in any jurisdiction, including, without limitation: (i) trademarks, service marks, brand names, certification marks, trade dress, assumed names, trade names and other indications of origin, the entire goodwill associated with the foregoing and registrations of, and applications to register, the foregoing; (ii) inventions, discoveries and improvements, whether patentable or not; (iii) patents, applications, provisional applications for patents, inventors' certificates and invention disclosures; (iv) non-public information, ideas, trade secrets and confidential information and rights to limit the use or disclosure thereof by any person; (v) copyrightable works, including writings, databases, computer software programs and documentation; (vi) copyrights, registrations or applications for registration of copyrights, and any renewals or extensions thereof; (vii) moral rights; and (viii) database rights;
“License” is defined in in Section 2.1;
“License Fees” means the Fees payable by Client to Kero for (i) access to and use of the Software Platform, (ii) Professional Services, (iii) Maintenance Updates, and (iv) Upgrades, all as specified in Exhibit B of the Kero Partnership Agreement;
“Client Portal” means the web and/or mobile portal operated by the Client or Kero on behalf of the Client through which Users access and use the Software Platform.
“Maintenance Updates” means a bug fix, patch, update, correction, enhancement, or modification of the Software Platform provided as part of normal maintenance including any modification, improvement, version or release to the Software Platform that corrects or is designed to correct a Nonconformity, eliminates the adverse effects of a Nonconformity or remedy any potential infringements of the Software Platform. For greater certainty, Maintenance Updates shall not include Upgrades as outlined in Section 3.7. The services detailed in Schedule A - Service Level Agreement shall be deemed to form part of the Maintenance Updates and shall be provided by Kero for the period during which Client benefits from Maintenance Updates as provided for herein and as per the provisions of Schedule A;
“Nonconformity” means a reproducible error or defect in the Software Platform or any failure of the Software Platform to operate in material compliance with the Specifications, provided that the foregoing shall not include any error, problem, defect or failure due solely to an unauthorized change or modification to the Software Platform by Client or any other software integrated with or used in conjunction with the Software Platform by Client. An immaterial error or temporarily individual functionality defect shall not constitute a Nonconformity;
“Object Code” means computer programming code, routines and programs in machine executable form or in any intermediate form as may be produced by compilers, linkers, software emulators or other such software development tools or environments;
“Kero IP” means any Intellectual Property such as software code, features, process, information or materials provided or depicted as part of this agreement that (i) is of general application in Kero’ business and arises from Kero’ performance of its obligations under this Agreement; or (ii) is in existence and owned by Kero, its Affiliates, or a third-party licensor of Kero;
“Kero IP Rights” is defined in in Section 3.1;
“Kero Technology” is defined in in Section 3.1;
“Person” means any corporation, partnership, limited liability company, joint venture, other entity or natural person;
“Professional Services” means the professional services performed by Kero or its permitted subcontractors for Client under this Agreement that are included in the License Fees (a list of the Professional Services is in Exhibit B of the Kero Partnership Agreement and in the applicable Program Configuration);
“Personal Data” means any information relating to an identified or identifiable natural person;
“Player Data” means data, which is not per se considered as Personal Data, but which might under certain conditions become Personal Data, and is collected from the player which includes but is not limited to the (i) IP Address, (ii) player ID (iii) player game stats;
“Product Integration” means the application programming interface, configuration, and/or software required to integrate third Party content or services (e.g., games, game libraries, interfaces, business intelligence, analytical tools, or data transfer mechanisms).
“Renewal Term” is defined in Section 12.2;
“Schedules” means any schedule attached to the Agreement, each of which forms a part of this Agreement;
“Software Platform” means Kero’ proprietary gaming platform and web and mobile content management software solution, as further specified in Exhibit A of the Kero Partnership Agreement (which specify the details of the included modules, Third Party Materials and any integration code required to use the Software Platform), including all technology pertaining to that software solution, any and all Documentation, Confidential Information (insofar as it pertains to the Software Platform), Source Code, Tools and Object Code pertaining thereto, including without limitation:
Kero IP Rights and any intellectual property used by, incorporated into or pertaining to the Software Platform and the technology used therewith, including copyright, trademarks and patent and all rights in registrations and applications therefore, and all continuations, continuations in part, divisional applications, and renewals of any of the foregoing, in any part of the world;
Any confidential and proprietary information provided by Kero to Client relating to the Software Platform, including, without limitation, drawings, data, trade secrets, know-how, conceptions, inventions, discoveries, programs and software, Object Code, Source Code, firmware, specifications, Documentation, Tools, techniques, methods and processes, algorithms, and other information or material, however stored;
All Third Party Materials incorporated or embedded in the Software Platform;
Any and all improvements, enhancements or modifications to the Software Platform; and
all Intellectual Property in and to the foregoing.
Notwithstanding the foregoing, for the avoidance of doubt, the Software Platform shall not include any Player Data, Personal Data or End User Data.
“Specifications” means the functional and technical requirements for the Software Platform mutually agreed upon between the Parties and defined in this Agreement;
“Program Configuration” means a separate statement of work, work order or other document regarding customized configuration of the Software Platform, including any Additional Professional Services, which has been completed and signed by the Parties under this Agreement, and which specifies the scope, terms and schedule of such Additional Professional Services to be performed by Kero for Client and the applicable fees;
“Taxes” shall have the meaning set forth in Section 6.8
“Term” shall have the meaning defined in Section 12.1;
“Third Party Material” means any software, work of authorship, or material that is (a) not owned by Kero, (b) supplied by a third party, or (c) subject to any third party rights, each to the extent incorporated or embedded in the Software Platform, necessary for the Software Platform to function or necessary to recreate any portion of the Software Platform, excluding all “off-the-shelf” third-party software that is commercially available and is generally used (i) to operate a computer or server, including all operating systems, platforms, and exchange software, and/or (ii) as software developer tools;
“Third Party Service Providers” means any Person who may provide normal course of business services to and/or on behalf of Client, and/or any of its Affiliates;
“Tools” means the programs, techniques, and development environments used in the creation, development, maintenance and support of the Software Platform;
“Upgrades” means (a) any new version, material update, upgrade, extension or release of the Software Platform or (b) any change or addition that adds new functionality to the Software Platform;
“Users” or “Authorized Users” means anyone authorized by Client or its Affiliates to access and use the Software Platform through the Client Portal and who has been supplied access by Client, its Affiliates (or by Kero at Client's request), including, for certainty, End Users.
SOFTWARE PLATFORM LICENSE
Grant of License. In consideration of the License Fees and subject to this Agreement’s terms and conditions, Kero hereby grants Client a non-exclusive, non-transferable, revocable license to access and use the Software Platform (including the right to authorize Users to access and use the Software Platform, but without any other right to sublicense (“License”). For the avoidance of doubt, the License also includes the right to use any Maintenance Updates, Updates and Upgrades or results of any Development Work provided on the basis of this Agreement.
Use by Third Party Service Providers. Kero agrees that Client may grant Third Party Service Providers rights to access and use the Software Platform, solely to the extent necessary to support the business operations of Client and Affiliates, without any notification or accounting to Kero. Client will ensure and is fully responsible for compliance by such Third-Party Service Providers with the terms and conditions of this Agreement, including confidentiality obligations and an obligation to not infringe any Kero IP Rights in violation of the License.
License Restrictions.
Kero IP Rights Protection. Except as otherwise permitted under this Agreement or as otherwise authorized by Kero, Client shall not (and shall not assist any third party to):
decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or derive any source code (or underlying ideas, algorithms, structure or organization) from the Software Platform or from any other information by any means whatsoever; or
distribute, disclose or allow use of any of the Software Platform in any format through any time sharing device, service bureau, network or by any other means, to or by any third party; or
create a Derivative Work of the Software Platform or any portion thereof; or
transmit through or post on the Software Platform unlawful, libellous, tortious, infringing, defamatory, threatening, vulgar, or obscene material or material that may be harmful to minors; or
knowingly transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; or
use the Source Code of the Software Platform; or
use the Software Platform in conjunction with any open source code that would bind Kero to any copyleft bounded license requirements requiring Kero to release Kero Technology under terms similar to a GNU GPL or other copyleft licence (except for any existing open source code in the Software Platform).
Maintenance Updates. During the term of the License, Kero shall provide any and all Maintenance Updates as well as any minor improvement updates for the Software Platform, as regularly available to other Kero clients, as part of the License and based on License Fees paid by Client. Any such Maintenance Updates shall be supplied to Client by Kero in accordance with Kero’ regularly scheduled maintenance releases for its users.
Upgrades. New functionality that is not included in the Software Platform components licensed by Client hereunder shall not be provided as part of Maintenance Updates, rather such new functionality or new modules would need to be separately licensed to be acquired by Client.
Kero Exclusivity. Client acknowledges that for the duration of this contract all in-game, free-to-play betting experiences related to the gameplay offered to Client’s end users shall be deployed through the Software Platform and Client may not enter into contract with any third-party provider platform to provide alternatives forms of such user experiences inside its mobile app.
OWNERSHIP
Kero Ownership. Kero utilizes (a) the Kero name, the Kero logos, the Kero domain names, the product names associated with the Software Platform and other trademarks, (b) certain audio and visual information, documents, software and other works of authorship; and (c) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions, and other tangible or intangible technical material or information (collectively ”Kero Technology”), and that the Kero Technology may be covered by intellectual property rights owned or licensed by Kero (“Kero IP Rights”). Other than as expressly set forth in this Agreement, no license or other rights in the Kero IP Rights are granted to the Client and all such rights are hereby expressly reserved. Except as otherwise stated herein, the Software Platform shall be and remain the property of Kero or third parties which have granted Kero the right to license the Software Platform and Client shall have no rights or interests therein except as set forth in this Agreement.
Development Work. The Development Work which is part of or integrated with the Software Platform shall be owned by Kero and upon completion and after the Acceptance Date shall be included in the License.
DELIVERY OF THE SOFTWARE PLATFORM
Delivery. Kero shall deploy and configure the Software Platform in accordance with the requirements based on this Agreement and the Program Configuration which forms Exhibit A of the Kero Spots Partnership Agreement and which will be signed immediately after this Agreement is signed. Kero shall also deliver any Documentation for the Software Platform as specified in the applicable Program Configuration. Delivery is complete once at least 1 (one) Authorized User has been granted access to the production copy version of the Software Platform.
Testing and Acceptance Testing. Immediately after the Delivery of the Software Platform in accordance with this Agreement and its Schedules and Exhibits, which Kero will notify in advance to Client, Kero shall enable Client to conduct its own testing procedures in order to determine whether the Software Platform materially meets the Specifications and notify Kero immediately of any Nonconformity.
Within 7 days of Delivery, Client will notify Kero in writing that either:
the Software platform passed Acceptance Testing and is accepted; or
the Software platform has not passed Acceptance Testing and is not accepted and specifying the reasons for non-acceptance. Client may give Kero a notice of non-acceptance if Software Platform as a whole or a specific element of the Software Platform does not substantially conform to the relevant Specifications.
If not accepted, Kero will use commercially reasonable efforts to promptly remedy the issues specified by Client in its notice. Upon re-Delivery of Software platform to Client, the procedure in this section may be repeated until the delivered Software Platform is in compliance with all criteria and requirements, and all Nonconformities have been corrected, and thus the Software Platform can be accepted by having the acceptance form signed by the authorized representatives of both Parties (day on which the acceptance form is signed “Acceptance Date”).
Go Live Date. After the Acceptance Date, Client shall notify Kero of the date on which the Software Platform shall go live, i.e. when Users will be fully able to use it (“Go Live Date”). Client undertakes to notify such date at least five (5) business days in advance.
SUPPORT SERVICES, PROFESSIONAL SERVICES, ADDITIONAL PROFESSIONAL SERVICES
Service and Support. Kero shall provide Client with service and support of the Software Platform as set out in Schedule A. Kero shall ensure that the Software Platform will be available and functional as set out in Schedule A.
Professional Services. Kero shall provide Professional Services to Client with due professional care. Fees for the Professional Services are part of the License Fees.
Additional Professional Services. If requested by Client during the Term, Kero will provide Additional Professional Services pursuant to a Program Configuration, Exhibit or similar document mutually signed by the Parties and according to the conditions set forth in Schedule C.3 as amended from time to time.
Termination of Additional Professional Services. Either Party may terminate an Program Configuration for the Additional Professional Services if the other Party is in material breach of the Agreement or the Program Configuration and has not cured such breach within thirty (30) days of written notice specifying the breach. Consent to extend the cure period shall not be unreasonably withheld, so long as the breaching Party has commenced cure during the thirty (30) day period and is pursuing such cure diligently and in good faith. Any extension of the cure period provided herein will extend the due dates of any deliverables provided in the applicable Program Configuration to the extent affected by such extension or material breach.
FEES & PAYMENT
License Fees. Client shall pay to Kero the License Fees. The License Fees shall commence and be payable upon the Go Live Date. The License Fees shall be payable as a one-time fee on an annual basis. Client shall pay the License Fees to Kero within ten (10) days of the invoice date.
Fees for Additional Professional Services. Client shall pay the fees specified in the applicable Program Configuration for the Additional Professional Services. All such fees are invoiced on a monthly basis and are specified invoiced and payable in US Dollars. All other time and materials costs will be specified, invoiced and payable in US Dollars. Kero agrees to detail actual time and material spent providing the Additional Professional Services in a report and to remit a copy of same to Client together with the invoice (if it is not remitted, the invoice is not in compliance with the Agreement). Client acknowledges that any fixed monthly fees for Additional Professional Services shall be due as of the first of the month for that month’s Services. The fee for Additional Professional Services must be paid within ten (10) days of the date when Kero sent its written report detailing actual time and material spent providing the Additional Professional Services.
Overdue Payments. If any payment is not made in a timely manner by Client, Kero shall send to Client a written notice specifying Client’s failure to pay the payment when due. In the event that the due amounts shall not be paid within fifteen (15) days of the receipt of said notice, such payment may accrue late charges at the rate of two percent (2.0%) of the outstanding balance per month from the date of such consequent failure until the date paid. For avoidance of doubt, failure to pay the payments when due is considered a material breach upon which the Agreement can be terminated for cause in accordance with clause 12.5 of this agreement.
Suspension. Notwithstanding any other wording in this Agreement, Kero reserves the right to suspend the License and its services in respect to any work in progress if Kero does not receive payment in a timely manner from Client in accordance with the applicable terms of this Agreement or any Program Configuration, and any such suspension will in no way give rise to any right of termination by Client nor any claim by Client for breach of Kero’ obligations under this Agreement or any Program Configuration.
Taxes. Kero shall solely invoice Client from Florida, USA. For tax purposes, Kero declares that it is a tax resident in Florida and that it is a beneficial owner of all fees and any sums which will be paid based on this Agreement. Kero is obliged to announce to Client in writing any changes of its tax residency or beneficial ownership status without undue delay. Kero is obliged to provide Client with a tax residency certificate upon the request of Client. Kero’ fees and any sums payable to Kero pursuant to this Agreement, any Program Configurations, are exclusive of (i) all local, provincial, state, federal and foreign taxes, levies, or duties of any nature and (ii) Sales Tax (“Taxes”). Client is responsible for payment of all its own Taxes, respectively Kero shall bear responsibility for the payment of all and any of its due Taxes. If Client pays Taxes from any payments made to Kero based on this Agreement, it commits to provide Kero upon request with a formal confirmation of the respective tax authority on such Taxes paid.
Gross-up. If (i) notwithstanding the manner in which any payment under this Agreement is reported, there is a final decision with respect to any Tax liability of Kero as a result of its receipt of a payment pursuant to this Agreement or (ii) any deduction or withholding as required by applicable law to be made from any payment (other than an interest payment) under this Agreement, such payment shall be appropriately adjusted so that the amount of such payment, reduced by the amount of all Taxes payable with respect to the receipt thereof or the amount of all deduction or withholding required by applicable law with respect to such payment, as applicable (in each case, taking into account all correlative tax benefits resulting from the payment of such Taxes), shall equal the amount of the payment which Kero would otherwise be entitled to receive pursuant to this Agreement.
Billing and Contact Information. Client shall ensure Kero has the complete, accurate and up-to-date Client billing and contact information at all times.
DATABASES
Ownership of Personal Data and User Database. Client shall be the sole owner of the database of names and contact information of the End Users (“End User Data”). Notwithstanding the foregoing, Kero may store, copy, modify, distribute, disclose, process, or otherwise use End Use Data strictly to the extent necessary to perform its obligations under this Agreement. In doing so, Kero will take commercially reasonable measures to keep that information confidential and to protect it against unauthorized access, disclosure, modification or destruction. During the registration process, Kero shall require all End Users to acknowledge that End User Data shall be subject to use under the Kero Privacy Policy and the Client Privacy Policy, and if there is a conflict between the Kero Privacy Policy and the Client Privacy Policy, the Client Privacy Policy shall apply. Kero certifies that it understands its obligations in connection with its collection, use and maintenance as set forth in the Privacy and Data Addendum attached hereto as Schedule D and will comply with those obligations.
Ownership of Player Data. Client & Kero shall be the co-owners of the database of all aggregated and anonymized end user activity, statistics, records of actions taken and any other information generated in the normal course of End User activity on or through the Software Platform. Kero shall provide reporting based on Player Data to Client on a weekly basis throughout the term. In addition to the foregoing, Kero shall co-own the telephone numbers of End Users that are collected by Kero by way of the Software Platform; provided, that Kero shall only utilize such telephone numbers as unique identifiers in connection with utilizing the aggregated and anonymized End User activity data discussed in the foregoing. For clarity, Kero will have no ownership of any End User Data, nor any Client data.
Data on Termination of Agreement. Should this Agreement terminate, and at the request of Client, Kero shall destroy all End User Data owned by Client pursuant to Section 7.1 above, except for phone numbers provided to Kero for use pursuant to Kero Privacy Policy.
CONFIDENTIALITY
Definition of Confidential Information. As used herein, "Confidential Information" means all information of a Party (“Disclosing Party”) which the Disclosing Party designates in writing as being confidential when it discloses such information to the other Party (“Receiving Party”) or which should otherwise reasonably be understood to be confidential considering the nature of the information and/or the circumstances of disclosure, including without limitation the terms and conditions of this Agreement, the Kero Technology, Kero IP Rights, the Software Platform, Client technology, Client IP rights, each Party’s innovations, marketing plans, product plans, business strategies, financial information, forecasts, personnel information, user lists, trade secrets and any oral or written communications between Client and Kero directly or indirectly relating to such matters, and any other non-public technical or business information, whether in writing or given by one Party to the other Party orally, which the Receiving Party knows or has reason to know the Disclosing Party would like to treat as confidential for any purpose, such as maintaining a competitive advantage or avoiding undesirable publicity. Confidential Information shall not include any information that: (a) is or becomes generally known to the public without the Receiving Party's breach of any obligation owed to the Disclosing Party; (b) was independently developed by the Receiving Party without the Receiving Party's breach of any obligation owed to the Disclosing Party; or (c) is received, without any confidentiality obligation, from a third party who obtained such information without any third party's breach of any obligation owed to the Disclosing Party.
Confidentiality. The Receiving Party shall limit disclosure of the Disclosing Party’s Confidential Information to those employees, contractors or agents who have a need to know and shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission.
Protection. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either Party exercise less than reasonable care in protecting such Confidential Information. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure and reasonable assistance (at Disclosing Party's cost) if the Disclosing Party wishes to contest the disclosure.
Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 8, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, without the requirements of posting a bond, it being specifically acknowledged by the Parties that any other available remedies may be inadequate.
WARRANTIES & DISCLAIMERS
Warranties. Each Party represents and warrants to the other Party that:
this Agreement has been validly executed and delivered by such Party and that this Agreement constitutes the legal, valid and binding obligation of such Party enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain those remedies may be pending;
it has all requisite authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement, and that the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by all requisite action on the part of such Party;
such Party’s execution and delivery of this Agreement and its performance or compliance with the terms of this Agreement will not conflict with, result in a breach of, constitute a default under, or require the consent of any third party under any license, sublicense, lease, contract, agreement or instrument to which it is bound; and
there are no pending or threatened lawsuits, actions or any other legal or administrative proceedings against such Party which, if adversely determined against such Party, would have a material adverse effect on such Party’s ability to perform its obligations under this Agreement.
Client hereby represents and warrants to Kero that:
Any modifications or creative work of the Software Platform made by Client (Derivative Works) shall be Client original work, which do not violate, infringe, unauthorized use of any intellectual property of any third party; not libelous or contrary to law; and to the best of Client’s knowledge not subject to any litigation or claim.
Provided that Kero follows relevant instructions from Client, Client and its employees, contractors and agents are and during the Term will be in full compliance with all officially mandated requirements and laws applicable to free-to-play contests and wagering within its operating league and jurisdiction and any other applicable governing body to which the Client may be subject.
it does not engage in bribery, does not direct, authorise or knowingly permit any person who acts on its behalf or provides services to it, to engage in bribery and that it will not, during the Term, engage in, or direct, authorise, or knowingly permit a person acting on its behalf or providing services to it, to engage in, bribery;
it is aware of Kero’ policy of zero tolerance towards bribery and corruption;
it is aware that Kero is subject to applicable laws prohibiting improper payments and bribes to public officials and that neither it, nor any persons acting for Client in connection with this Agreement, has taken, or will take any action or engage in any activity which would lead to Kero being in violation of any such applicable laws
it does not, and will not, make any political donations for the benefit of, or on behalf of Kero, or in relation to this Agreement;
it will not delegate the performance of its obligations under this Agreement or otherwise engage any sub adviser or agent in relation to its obligations, without the prior written approval of Kero, and approval shall not be unreasonably withheld, and will ensure that any such engagement is set out in a written agreement which incorporates all material terms of this Agreement regarding conduct, compliance, confidentiality and representations and warranties, and that Kero shall be a third party beneficiary of, and entitled to enforce, such provisions.
it, or any of its employees or subcontractor, shall NOT in any way whatsoever make any real money or free to play wagers, entitling or enabling the participation or winnings on any games operated by Kero or its technology, its operators or contracting parties of Kero and acknowledges and agrees that in the event of breach of this warranty and winning, such winning or prizes shall not be paid out or awarded.
Client acknowledges and agrees that:
(a) if any of these representations or warranties is or becomes untrue then Kero may terminate the License and this Agreement with immediate effect; and
(b) if Kero is obligated to pay any amount to any persons or entity due to any of these representations or warranties being or becoming untrue, Client will be solely liable and exclusively responsible to reimburse Kero for any amount paid by Kero.
Kero hereby represents and warrants to Client that:
The Software Platform does not and will not infringe, misappropriate, or violate the Intellectual Property Rights of any third party.
Kero shall provide and maintain the Software Platform in a manner consistent with professional care and in accordance with this Agreement;
The Software Platform will perform materially in accordance with the Specifications and Documentation, including without limitation Exhibit A of the Kero Partnership Agreement; and
Kero shall use industry-standard virus detection technology to scan for viruses within the Software Platform, Development Work and Custom Deliverables.
INDEMNIFICATION
Indemnification by Kero.
Subject to this Agreement, Kero shall defend, indemnify and hold Client harmless against any loss, liability, expense, cost and damage (including without limitation reasonable legal fees) incurred in connection with any claims, demands, suits, or proceedings ("IP Claims") that Client’s use of the Software Platform in accordance with this Agreement infringes the intellectual property rights of a third party, provided that the Client will: (i) promptly give written notice of the IP Claim to Kero, except that any failure to provide this notice promptly only relieves Kero of its responsibility pursuant to this Section 10.1.1 to the extent its defence is materially prejudiced by the delay; (ii) gives Kero sole control of the defence and settlement of the IP Claim; and (iii) provides to Kero at Kero’ cost, all reasonable assistance. Additionally, Kero shall defend, indemnify and hold Client harmless against any loss, liability, expense, cost and damage (including without limitation reasonable legal fees) incurred in connection with any claims, demands, suits, or proceedings arising from or in connection with any (i) breach by Kero of this Agreement or (ii) gross negligence, willful misconduct or fraud of Kero in connection with this Agreement.
Kero shall have no obligations under section 10.1.1 for, and Client shall indemnify Kero against, any IP Claim to the extent it is based on or arises from, in whole or in part: (a) Client’s breach of this Agreement; (b) alteration or modification of the Software Platform that was not approved by Kero;; (c) any software, service, content or material not provided by Kero; ; (d) Client’s failure to promptly implement an updated or modification to the Software Platform; or (e) use of the Software Platform in a manner other than which it was designed or in a manner other than as specified by Kero.
If the Software Platform becomes, or in Kero’ opinion be likely to become, the subject of an IP Claim, then Kero reserves the right to, at its option: (a) procure for Client the right to continue using the Software Platform, or (b) replace or modify the Software Platform to make it non-infringing without a material reduction in functionality. If neither of the foregoing alternatives is commercially available to Kero, then Kero may terminate the License and refund to Client any prepaid but unused License Fees.
WITH RESPECT TO IP CLAIMS, ANY INDEMNIFICATION UNDER THIS SECTION 10.1 WILL BE Client’S SOLE AND EXCLUSIVE REMEDY AGAINST Kero FOR INFRINGEMENT, AND THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION 10.1 STATES Kero’S ENTIRE LIABILITY AND Client’S EXCLUSIVE REMEDY FOR ANY IP CLAIMS.
Indemnification by Client. Client shall defend, indemnify and hold Kero and its officers, directors, shareholders, employees, contractor and agents, and their respective successors and assigns (collectively, “Kero Indemnitees”) harmless against any loss, liability, expense, cost or damage (including without limitation reasonable attorneys' fees) incurred in connection with any claims, demands, suits, or proceedings made or brought against Kero by a third party (collectively “Claims”):
alleging that the Client information or direction or any Client systems, products, services, hardware, business processes, materials, data or content (collectively “Client Materials”) provided to Kero for any customizations or modifications, or otherwise provided or processed on or through the Software Platform, or the use thereof by Kero in providing the License and/or services under this Agreement, infringes the intellectual property rights of a third party; or
based on or arising out of Client’s gross negligence or willful misconduct or Client’s breach of this Agreement (including without limitation any of Client’s representations or warranties under this Agreement being or becoming untrue),
provided that Kero (i) promptly gives written notice of the Claim to Client, except that any failure to provide this notice promptly only relieves Client of its responsibility pursuant to this Section 10.2 to the extent its defence is materially prejudiced by the delay; (ii) gives Client sole control of the defense and settlement of the Claim (provided that Client diligently defends such claim may not settle or defend any Claim unless it unconditionally releases Kero of all liability); and (iii) provides to Client, at Client's cost, all reasonable assistance.
DISCLAIMER AND LIMITATION OF LIABILITY
Disclaimer. Except in connection with Kero’ gross negligence, willful misconduct or fraud, in no event will Kero be liable for:
any indirect, special, incidental, exemplary, punitive or consequential damages, whether based on breach of contract, tort (including negligence) or otherwise, arising from or related to the Software Platform, this Agreement or any Program Configuration, regardless of whether Kero has been advised, knew or should have known of the possibility of such damages; or
lost profits, business, revenue, opportunities or customers; business interruptions; loss of or damage to data; cost of replacement products or services; loss of or damage to reputation or goodwill.
Limitation of Liability. EXCEPT FOR Kero’S INDEMNITY OBLIGATIONS UNDER SECTION 10.1, IN NO EVENT SHALL Kero’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF (i) $1,000,000 USD (ONE MILLION US DOLLARS) AND (ii) THE DIRECT DAMAGES PROVED BY Client.
Limitation of Action. Except for breaches of either Party’s intellectual property rights, no action (regardless of form) arising out of this Agreement may be commenced by either Party more than three (3) years after the cause of action: (i) has accrued, if known; or (ii) was discovered or capable of discovery, if not known.
TERMINATION
Termination
Either Party may terminate this Agreement for cause upon 60-days’ written notice to the other Party of a material breach, provided such breach remains uncured at the expiration of the notice period.
Kero may terminate the Agreement with immediate effect in case of non-payment of any due and unpaid fee for more than 30 days.
Any Party may terminate this Agreement if the other Party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation after the expiry of a 30 days term from the date when the judicial administrator/liquidator receives the termination notice from the other Party, conditional upon the fact that the judicial administrator/liquidator does not provide any answer to said termination notice within the aforementioned term of 30 days.
Mutual termination. This Agreement may be terminated by mutual agreement of the Parties, at the date thus agreed upon.
Outstanding Fees. Except as expressly set out to the contrary in this Agreement, termination shall not relieve a Party of the obligation to pay any fees or amounts accrued or payable to the other Party prior to the effective date of termination.
Return of Confidential Information. Upon termination of this Agreement, each Party will promptly return to the other Party all Confidential Information and all records (in any form, format or medium) in its possession or control containing or relating to Confidential Information of the Disclosing Party.
Surviving Provisions. The provisions that by their nature are meant to survive termination of this Agreement including the following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 2, 3, 6 (only to extent applicable to payments due and owing Kero under this Agreement prior to such expiration or termination), 7, 8, 11 and 17.
REGULATORY COMPLIANCE.
The Client shall be responsible for obtaining and maintaining any governmental, league or sport specific approval, license, authority or consent required to fulfil the obligations under this Agreement.
Kero Software Platform is subject to all applicable testing and approvals for Deployment (collectively, “Approved Products”). Client may only Deploy Approved Products.
USE OF DATA.
Privacy Obligations. Kero acknowledges and agrees that the Software Platform will include or use metadata, tags, cookies, tracking technologies other than analytic technologies, in each case, which shall be deployed exclusively to analyze and improve the Software Platform. Notwithstanding any additional such metadata, tags, cookies or tracking technologies requested by the Client. The Client shall ensure that its privacy policies, terms of use, and other applicable agreements with End Users adequately disclose such technologies, and any collection, usage and disclosure of personal and other information that the Client wishes to perform.
GENERAL PROVISIONS
Promotional Communications. In no event shall Kero have any right to use, reproduce or display any trademarks, symbols, trade names or other intellectual property of Client or any of its affiliates except strictly as required to provide the services contemplated by this Agreement.
Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. It is understood and agreed that neither Party shall have the authority whatsoever to bind the other Party by contract or otherwise.
No Benefit to Others. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the Parties hereto and their respective successors and permitted assigns, and are not to be construed as conferring any rights on any other persons.
Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, the provision shall be changed by the court or by the arbitrator and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect, unless modification or severance of any provision has a material adverse effect on a Party, in which case such Party may terminate this Agreement by notice to the other Party.
Force Majeure. A Party shall not be deemed to be in breach of this Agreement or otherwise be liable to the other, by reason of any delaying in performance, or non-performance, of any of its obligations hereunder to the extent that such delay or non-performance is due to a Force Majeure and the time for performance of that obligation shall be extended by a reasonable time.
ASSIGNMENT.
Generally. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party which shall not be unreasonably withheld.
Exception. Notwithstanding the foregoing, each Party may assign this Agreement without consent of the other Party in connection with a merger, acquisition, takeover, corporate reorganization, or sale of all or substantially all of its assets, provided that the assigning Party provides thirty days’ prior written notice to the non-assigning Party. In addition, Kero is expressly permitted to assign its rights and obligations hereunder to an Affiliate. Client acknowledges that Client shall not be permitted to assign Client’s rights and obligations under this Agreement to any competitor of Kero’ (defined to be an entity selling or licensing a product similar to the Software Platform). Any permitted assignment is subject to notice to the other Party and an express acknowledgement by the assignee that such assignee assumes all of the assignor’s rights and responsibilities under the terms of this Agreement.
Null and Void. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this Section 17 shall be void and of no effect.
GOVERNING LAW, VENUE & FORUM, ATTORNEY FEES.
Entire Agreement and Construction. This Agreement, the Exhibits, the Schedules, the Program Configurations and any executed amendments, addenda or change orders thereto, constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement, including without limitation the Non-Disclosure Agreement executed between the Parties. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by both Parties. In the event of any conflict between the provisions in this Agreement and any Program Configuration, Schedule or Exhibit, the terms of this Agreement shall prevail to the extent of any inconsistency (unless such inconsistency is expressly stated to be governed by such Program Configuration, Schedule or Exhibit). Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client purchase order, Kero quote or in any other order documentation of either Party shall be incorporated into or form any part of this Agreement.
Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument.
SCHEDULE A – SERVICE LEVEL AGREEMENT
This Schedule A – Service Level Agreement (“SLA” or “Schedule A”) between Kero Inc. and Client for the provision of Services required to support and maintain the Software Platform in accordance with the terms of the Software License and Services Agreement by and between Kero, and the Client.
DEFINITIONS
Capitalized terms used herein but not defined herein shall have the meaning set forth in the Agreement.
In-Scope Applications:
This Schedule A is targeted specifically for Software Platform
Out-of-Scope Applications:
All others, specifically 3rd party remote servers, 3rd party payment service providers, 3rd party distribution systems, 3rd party web and mobile portals
In-Scope Infrastructure Services:
Infrastructure services that support the Software Platform include the following:
Software – Database
Support utilities and tools
Out-of-Scope Infrastructure Services:
Infrastructure services that support the Software Platform are out of scope of this agreement if the environment is not hosted or contracted by Kero.
SERVICE SCOPE
Reference No.
Service
1
Support and maintenance of the Software Platform, updates and bug fixes
2
Monitoring the Software Platform including performing capacity planning and suggesting enhancements when necessary
3
Provide telephone/email support for all of the Software Platform components
4
Notify Client designated Primary Contact about infrastructure malfunctions which may affect proper functioning of the Software Platform
5
Remote assistance
Client RESPONSIBILITIES (UNDER LICENSE)
Use the Software Platform in compliance with its purpose and following Kero guidelines.
Not change any configuration without prior consent of Kero (all changes in the environment which potentially may affect products/components which are in scope of this Schedule A, should be discussed with Kero in advance to verify any problems and require Kero’ consent).
In Client’s sole discretion, ongoing promotional efforts to end users via available channels
Kero RESPONSIBILITIES
Support the Software Platform as provided for herein and in the Agreement.
Limit unscheduled downtime as provided for herein.
Perform availability and contingency management of the Software Platform.
Provide Maintenance Updates and/or Upgrades required for the correct system functioning.
Provide all information necessary to define backup and restore procedures.
Provide input and any Maintenance Updates for definition of backup descriptors.
Provide system monitoring, system audit and review for performance tuning and optimization according to industry standards or as agreed between the Parties.
Coordinate with the Client and third party infrastructure provider to solve any problems in the backup procedures.
Periodic system restorability check (backup recovery testing at least twice per year and after each significant Update backup descriptors definition).
Coordinate with a backup service provider in case of disaster recovery.
On request, cooperate with service providers in case of DDOS attacks.
SERVICE AVAILABILITY
Two levels of support are provided under this agreement, defined as Office Hours and After Hours. Support is available via:
Support Level
Hours
Contact information
Office Hours
08:00 PST to 23.00 PST
+1.647.952.2737
After Hours
All others than above
+1.647.700.7303
Note: during Office Hours all communication channels (phone and mail) are monitored continuously. During After-Hours only 24h support phone number is monitored.
SOFTWARE PLATFORM AVAILABILITY
Kero agrees to provide 99.5% Software Platform availability measured annually. The term “Software Platform Availability” shall mean that the Software Platform is available and fully working without material functional degradation, and that the Software Platform response time performance allows for full productive use of the Software Platform.
Availability shall be measured at the point where the Software Platform is made available on the Internet from 3rd party hosted data centre(s), and does not include outages caused by 3rd party hosting provider, Client, Affiliates, Users or by third-party Internet transport providers.
Software Platform Availability measures shall be exclusive of Scheduled Downtime and Maintenance Windows (specified below).
AVAILABILITY RESTRICTIONS
The Software Platform will normally be available with the exception of the following situations:
Scheduled Downtime: Client will be notified via email at least 10 business days in advance of any planned maintenance or upgrades likely to affect the availability of services. Downtime will be scheduled outside business hours, as agreed by the Parties. Urgent downtime notices will be made via e-mail, sms and telephone to the designated Primary Contact. The Primary Contact for the Customer affected should then notify users by the most appropriate means.
Unscheduled Downtime: an unplanned outage, such as where the system is effectively out of service due to a hardware or software failure, may occur only with prior Client notification to be given immediately to the latter.
Maintenance Window – designated time period of five (5) hours monthly that will be used to effect changes to the servers. Maintenance window will be scheduled outside core business hours agreed via email with Client. The servers may or may not be available for operation during this Maintenance Window.
SUPPORT CASES DEFINITION
Priority
Impact on operation
Description
Resolution
1 - Blocker
Operation stopped
Blocker – Production application down or major malfunction resulting in majority of users unable to perform their normal functions such as registration, deposit, withdraw, transfer of funds and betting.
Provide a downgrade to last stable version.
2 - Critical
Operation limited
Critical – Critical loss of application functionality or performance resulting in high number of users unable to perform their normal functions such as registration, deposit, withdraw, transfer of funds and betting.
Provide a work-around or provide a downgrade to last stable version.
3 - Major
Operation disrupted
Major – Moderate loss of application functionality or performance resulting in multiple users impacted in their functions, meaning normal functions as well as modules defects i.e. chat application.
Provide a work-around and include a permanent solution in the hot fix update.
4 - Minor
Insignificant difficulties
Minor – Minor loss of application functionality or product feature question not preventing a module or main functionality from being performed. Goal is to provide a work-around and to include a permanent solution in the next regularly scheduled update.
Provide a work-around and include a permanent solution in the next regularly scheduled update.
RESPONSE AND RESOLUTION TIME TARGETS
Priority
Target Response Time
Target Resolution Time
1 - Blocker
30 minutes
12 hour
2 - Critical
30 minutes
20 hours
3 - Major
4 hours
30 hours
4 -Minor
1 day
According to release plan
Note: Incoming support calls will be handled on a priority basis, i.e. priority 1 will be addressed before lower priority calls. Over the course of problem investigation, the priority may need to be changed. Resolution will be determined by the Kero support staff working on the problem and information will be updated in the trouble ticketing system. For the avoidance of doubt, any Blocker and Critical cases will ideally be resolved with maximum effort and cooperation of both Kero and Client teams, however any cases that would require issues that require restoration of a backed up database and application may take up to 12 hours.
SYSTEM AND SERVICE LEVEL REPORTING
Report Name
Interval
RCA Report
Always for priority 1 incidents solved in more than one hour.
On demand for:
priority 1 incidents solved in less than one hour,
priority 2 and 3 incidents,
Reports will be available in 3 business days after incident resolution, published in ticket system.
Incident Status Report
For priority 1, 2 and 3 incidents, the Incident Status Report will be delivered to Client immediately after discovering important facts leading to problem solution (updates will be delivered to pointed Client representatives from ticket system). Anytime Kero support is available for any additional questions and requests via defined communication channels.