THE "ECASH SOFTWARE" IS NOT A BANK DEPOSIT ACCOUNT AND IS THERFORE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR THE CANADIAN DEPOSIT INSURANCE COMPANY.
This "Ecash Agreement" is entered into between CryptoLogic Inc. (the "Supplier") and the customer of Supplier whose name is set forth by registering the software (the "Customer") and provides for the use of the Ecash software ("ESoft") of CryptoLogic, a company incorporated in the Province of Ontario, Canada. The Supplier will provide certain services to Customer under this Ecash Agreement in connection with Customer's participation (the "Services") which will be limited to the transfer of Customer's funds to an "Ecash Account" or visa versa. From the Ecash Account, the Customer will be able to use their personal computer and the Ecash software for the transfer or receipt of funds to or from their Ecash Account and utilize other services available through the Ecash software. This Ecash Agreement and the related agreements herein referenced set forth the terms and conditions governing such Services provided by Supplier to Customer. By selecting "I Accept" at the end of this agreement and further by registering the software, the Customer shall be deemed to be in agreement with, and bound by, the terms and provisions hereof and the Conditions and Provisions outlined below.
NO MODIFICATIONS, ADDITIONS, DELETIONS OR INTERLINEATIONS OF THIS ECASH AGREEMENT ARE PERMITTED OR WILL BE RECOGNIZED BY BANK. This contract contains a binding arbitration provision which may be enforced by either of the parties. No employee, officer or agent of Supplier may verbally alter, modify or waive any provision of this Ecash Agreement.
Conditions and Provisions
The following Conditions and Provisions are effective until modified, amended or restated as hereafter provided.
The Customer agrees to the following:
1. Definitions and Priority of Agreement. Defined terms shall have the meanings given to them in applicable rules, regulations and laws governing the Agreements. Customer agrees that any and all terms hereof are subordinate to the License Agreement and shall be controlled by the terms and conditions of the License Agreement. In the event of any inconsistency or conflict between these Conditions and Provisions and the License Agreement with respect to any terms, condition, right or obligation, the Supplier shall in its sole and absolute discretion determine which item shall control. Customer hereby acknowledges that a copy of the License Agreement is available for review and that a copy thereof may be obtained by Customer directly through the Supplier.
2. Modifications. The Agreements are subject to modification, amendment or restatement (in part or full) upon not less than ten (10) days notice to the Customer. Notice for this purpose shall be deemed given upon either:
(i) mailing a copy of the modification, amendment or restatement to the Customer by regular mail to Customer's last known address (which notice may be contained in a mailing to Customer containing other notices or information); or (ii) posting on the Supplier's Internet home page a copy of the modification, amendment or restatement for not less than thirty (30) days prior to the effective date. No modification, amendment or restatement hereof or waiver of any provision hereof shall be valid unless either the procedures set forth have been followed or the same shall be in writing and signed by the Customer and Supplier. No course of prior dealings, usage of trade or parol or extrinsic evidence shall be used to supplement or modify any terms hereof. No employee, officer or agent of the Supplier may verbally alter, modify or waive any provision of the Agreements.
3. Customer Equipment. The Customer shall be solely responsible for providing equipment which conforms with the standards from time to time established by Supplier and ESoft for use with the Services provided under the Agreements. The equipment may include a data terminal, personal computer, telephone, telephone lines and modem. The Customer shall obtain the equipment and any required software and maintain the same in good working order, all at the Customer's sole cost and expense. The Customer shall further undertake to possess the skills and knowledge required to operate the same consistent with good business practices. The Supplier does not intend to provide any support to Customer in connection with the use of the software or hardware required or desirable for use in connection with the Agreements.
4. Software Program. The Customer shall be solely responsible for providing communication software which conforms with standards established by the Supplier and ESoft. The Customer shall be obligated to obtain from ESoft, either directly or through facilities provided by the Supplier, a copy of a the ESoft software program and program documentation (the "Program") for use on one or more of the Customer's personal computers. The Customer shall use the Program in connection with the Services. The Customer acknowledges and agrees that the Program constitutes valuable, confidential, and proprietary property, and Customer agrees to comply with the requirements of the License Agreement and further agrees not to transfer, distribute, copy (other than for backup purposes), reverse compile, modify or alter the Program. The Customer further agrees to secure and protect the Program and copies thereof in a manner consistent with the maintenance of its proprietary nature. Customer agrees to immediately discontinue use of the Program upon termination of the Agreements or at the request of the Supplier or ESoft and to immediately return to the Supplier all copies of the Program. Customer shall further undertake to possess the skills and knowledge to operate the communication software and the Program consistent with good business practices.
5. Instructional Materials. Customer will obtain from ESoft, either directly or through facilities provided by the Supplier, all instructions, as may be updated from time to time, as are reasonably necessary to use the Services. Customer agrees to strictly follow all such instructions.
6. Stop Payments and Adjustments. Neither the Customer nor the Supplier shall have the right to adjust or stop payment to or from the Ecash Account after instructions have been received by the Supplier. If the Customer or the Supplier asserts that any transfer to or from the Ecash Account is in error, a reversing or adjusting entry may be initiated by the Supplier. The Supplier may, at its sole option or at Customer's written request, attempt to reverse or to adjust an entry which has been, or is asserted by the Customer or the Supplier, to have been made in error. The Supplier shall have no liability to the Customer if any such request is not honored. If such request is honored, the Customer agrees and hereby does indemnify Supplier for any and all losses, claims and liabilities which may be asserted against the Supplier in connection therewith.
7. Availability of Services. The Supplier will from time to time establish a schedule of business days on which it may receive transfers between the Account and the Ecash Account (the "Business Day") and a schedule of the hours prior to which entries must be received. Any entry received after the applicable cut-off time, or on a day that is not a Business Day, will be deemed to be received as of the next following Business Day. Supplier will use its best efforts to act on each entry received by the cut-off time. Supplier will have no liability, however, if it fails to do so.
8. Settlement of Credit Entries. The Customer is required to have the necessary funds in its Account to satisfy transfers from the Ecash Account. No transfers will be made from the Ecash Account to any other Account unless the required funds are in the Ecash Account.
9. License Agreement. Prior to initiating an activity in the Account, the Customer shall enter into the License Agreement. Supplier believes that the software provided under the License Agreement has the functionality to perform adequately, but Customer acknowledges that the Supplier is not making any warranties, express or implied, including without limitation warranties of merchantability, fitness for a particular purpose or non-infringement. Customer shall bear all risk of non-performance, loss or corruption of data and other problems and neither the Supplier nor ESoft will be liable under any contract, negligence, strict liability or other theory for any damages including, without limitation, direct, incidental or consequential damages or cost of procurement of substitute goods, services or technology.
10. Release and indemnification. The Customer acknowledges that the fees paid by it to the Supplier for the Services are small with relation to the dollar amount of such Services, and that the Supplier is willing to provide such Services only if it may strictly limit its liabilities as provided herein. In the absence of Supplier's fraud or willful misconduct, and except for any apportionment of liability to the Supplier required under applicable law or regulation that cannot be waived or disclaimed by agreement, the Supplier shall not be liable for any injuries, claims, demands, expenses, losses or damages of any kind arising directly or indirectly out of Supplier's furnishing or not furnishing services to be provided under the Agreements or any other action or inaction hereunder relating to such services. Under no circumstances shall the Supplier's liability to Customer exceed the amount of accrued interest on any sums to be paid to Customer by the Supplier or include any special, consequential, punitive or indirect loss or damage or attorneys' fees (even if the Supplier has been informed of the possibility of same). The Supplier shall have no liability whatsoever with respect to any action, inaction, delay or error of ESoft. Nor shall the Supplier be liable to Customer or any other party for any loss or damage resulting from a delay or failure to properly effect a debit or credit if such delay or failure was caused by an act of God, natural disaster, electrical or computer failure, failure of communication facilities, limitation of applicable Federal statute or regulation, war or insurrection, unclear instructions or any fraud or action of any entity or person other than Supplier's employees; or for any action inaction or insolvency of ESoft or any cause beyond the Supplier's reasonable control. Under no circumstances shall the Supplier's liability to Customer (i) exceed the amount of accrued interest on any sums to be paid to Customer by the Supplier, or (ii) include any special, consequential, punitive or indirect loss or damage or attorneys' fees (even if Supplier has been informed of the possibility of same).
The Customer shall indemnify and hold the Supplier harmless from and against all actions, claims, suits, fines, penalties, damages, losses and costs (including attorneys' fees) incurred by or asserted against the Supplier arising out of or relating to the Supplier's actions or inactions hereunder (other that those actions or inactions constituting fraud or willful misconduct) or any breach of any provisions hereof by the Customer. Any allowable claim or action that may be brought against the Supplier by Customer under or with respect to the Agreements or the License Agreement shall be brought not later than one year after the date of the event giving rise to such claim, and Customer waives any claim not brought within such period. The Customer further agrees to indemnify the Supplier from any liability, damage, settlement or expense (including attorneys' fees) that may result from or relate to Customer's activities in connection with the software provided under the License Agreement or any claims for indemnity on the part of ESoft against the Supplier due to the actions or inactions of the Customer.
11. Compensation. Fees charged for Services are in accordance with the Supplier's pricing schedule, which is hereby acknowledged by Customer, and are subject to change upon not less than ten (10) days notice. Notice for this purpose shall be deemed given upon either:
(i) mailing a copy of the modification, amendment or restatement to the Customer by regular mail to Customer's last known address (which notice may be contained in a mailing to Customer containing other notices or information); or (ii) posting on the Supplier's Internet home page a copy of the modification, amendment or restatement for not less than thirty (30) days prior to the effective date
12. Termination. The Agreements can be modified, changed or terminated at any time by the Supplier or may be terminated by Customer upon not less than ten (10) days written notice.
13. Customer Disclosure. By signing the Agreements, the Customer acknowledges that it has read and understands the following features of the Services.
ò The Ecash Account is not a deposit account with the Supplier but represents a general obligation of Supplier.
òAny "account" set up in the Ecash System is not a deposit with Supplier but represents cash held by Customer the Ecash System.
òThe Ecash system is not sponsored, guaranteed, endorsed or insured by the Canadian government or any agency thereof.
òThe money held in the Ecash system is not insured by the Federal Deposit Insurance Corporation or the Canadian Deposit Insurance Corporation.
òCustomer is an unsecured creditor of Supplier as to all money held in the Ecash Account.
òCustomer will treat any amounts held in the Ecash Account and additional funds under the License Agreement as through it was cash and that said cash is at risk from attack.
14. Costs, Expenses and Interest. The Customer, on demand from the Supplier, shall pay to the Supplier all costs and expenses incurred or paid by the Supplier for any reason in connection with the Agreements and relating to protecting, enforcing and determining the Supplier's rights, remedies and security interests, including but not limited to, attorneys' fees and costs for: (i) enforcing or attempting to enforce any of the Supplier's rights and remedies, including representation in any insolvency, receivership or bankruptcy proceedings; (ii) obtaining advice, counsel and assistance to the Supplier on any disputed matters involving the Agreements; and (iii) collecting amounts due to the Supplier under the Agreements. Interest on all amounts due to the Supplier from Customer after the due date, which may be on demand, shall accrue at the post judgment rate then in effect in the Province of Ontario, Canada.
15. Accord and Satisfaction. All communications from the Customer concerning any disputed debts arising out of the Agreements, related matters or any other obligations of the Customer to the Supplier, including without limitation, instruments (checks) tendered as full satisfaction of a disputed debt, are to be personally delivered or mailed to the Supplier in care of the following department and address:
Disputed Debts Department
CryptoLogic Inc.
1867 Yonge St., 6rd Flr.
Toronto, ON M4S 1Y5
Canada
No such disputed payments are to be delivered or mailed to any other address or person other than as specified above.
16. Arbitration. The Customer and the Supplier agree to use their best efforts to resolve any disputes, controversies or claims that may arise between them in connection with the Agreements. Except for those matters for which equitable relief may be obtained, any and all disputes, controversies or claims between the Customer and the Supplier, relating to or pertaining to, or based upon their agreements contained in the Agreements shall, to the extent that they cannot be informally resolved, be settled by mandatory arbitration administered by the Canadian Arbitration Association (the "CAA") under its rules as amended by the terms of the Agreements. Judgment on any award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Any such demand for arbitration shall be filed with the CAA regional office closest to Toronto, Ontario and such arbitration shall be conducted in the same CAA regional office. In such arbitrations, one arbitrator shall be chosen under the procedure of the CAA. The arbitrator shall be selected from a panel of persons having experience with the knowledge of commercial banking depository matters. The arbitrator shall award costs and expenses of arbitration (including attorneys' fees) in accordance with the provisions of the Agreements. If any matter which is subject to arbitration depends, in part or whole, upon the resolution of any related matter between the Supplier and ESoft, arbitration hearings hereunder shall be delayed until the complete and final adjudication of such dispute between the Supplier and ESoft. The findings and final ruling in any arbitration between the Supplier and Esoft shall be binding in any matter subject to arbitration hereunder.
17. Governing Laws and Jurisdiction. As to all matters where arbitration for the resolution of disputes, as herein provided, does not apply, any litigation arising hereunder or relating to this agreement or obligations between the Customer and the Supplier relating thereto, shall be subject to the jurisdiction of the Courts located in the Province of Ontario.
A. Any of the foregoing courts shall have personal jurisdiction over Customer and jurisdiction over matters arising under or out of the Agreements.
B. If Customer is not then present in the Province of Ontario, the Supplier may obtain service of process on Customer pursuant to any rule or statute governing service of process outside the Province of Ontario.
C. Customer waives any and all rights to contest said jurisdiction and venue and waives any right to commence any action against Supplier in any jurisdiction except in the Province of Ontario.
D. With respect to matters regarding rights and obligations arising under the License Agreement, such rights and obligations will be construed in accordance with and governed by the laws of the place provided for in the License Agreement and dispute resolution methods therein contained.
E. Any provision of the Agreements which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of the Agreements or affecting the validity or enforceability of such provision in any other jurisdiction.
18. Nature of Relationship. The relationship between the Customer and the Supplier under the Agreements and related matters shall constitute a business relationship and shall not at any time directly or indirectly constitute a fiduciary relationship. Furthermore, the Agreements do not insure to the benefit of parties other than the Customer and the Supplier, and the Supplier expressly disclaims liability, if any, to such other third parties.
19. Upon the Customer entering into the Account Agreement, he/she will be provided with a Personal Identification Number ("PIN"). The Customer alone is absolutely responsible for keeping the PIN strictly confidential. The Customer will take all reasonable precautions to ensure that the PIN is not disclosed, inadvertently or otherwise, to any person at any time, including, if applicable, during the keying-in process at a computer terminal. In case of dispute, the Customer must prove that all such reasonable precautions were taken by him/her. The Customer is responsible for all activity in the Services resulting from the use of his/her PIN. The Customer is responsible for all authorized or unauthorized activities resulting from the use of his/her PIN until the Customer terminates the Agreements.
LICENSE AGREEMENT
PLEASE READ THE FOLLOWING CAREFULLY BEFORE PRESSING THE "ACCEPT" BUTTON BELOW
BY PRESSING THE "ACCEPT" BUTTON BELOW AND USING THE SOFTWARE/SERVICE, YOU ARE AGREEING TO ALL
THE TERMS AND CONDITIONS OUTLINED HEREAFTER
IF YOU DO NOT WISH TO ACCEPT ALL THE TERMS AND CONDITIONS OUTLINED HEREAFTER, PLEASE PRESS THE "QUIT" BUTTON BELOW
AND YOU WILL EXIT THE SOFTWARE/SERVICE
Terms and Conditions
1. This license agreement is between CryptoLogic Inc. (the "Company") and you (the "Customer"). By pressing the "ACCEPT" button below, the Company agrees to provide to the Customer the services listed below and the Customer agrees to be bound by all of the following terms and conditions.
2. Grant of License
The Company grants to the Customer a personal, non-exclusive, non-assignable and non-transferable license to use and display, in whole and not in part, the Company's software and Ecash service (hereinafter collectively referred to as "Ecash") on any machine of which the Customer is the primary user. Unauthorized copying of the software or the written materials associated therewith is expressly forbidden. The Customer may not sublicense, assign or transfer this license, or rent or lease any portion of Casino Regal. The Customer may not reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of Casino Regal , or create derivative works based on same.
The Company reserves the right to amend these terms and conditions from time to time and vary them without prior notice to the Customer, as well as to alter prices, features, specifications, capabilities, functions or other characteristics of Ecash. In such a case, the Customer will be notified of the amendments on the Company's Internet home page .
3. Age Requirement/Legality
The Customer confirms that he or she is at least 18 years of age, or of the required legal age in the place in which he/she uses Ecash, to be authorized to use Ecash. The Customer shall not allow any minor to use Ecash. The Customer acknowledges that he/she is solely responsible for all use of Ecash through his/her "alias", password and/or PIN as he/she is better suited to enforce restrictions on same; the Customer will endeavor to keep his/her :alias", password or PIN secret and confidential. Any unauthorized use of the Customer's "alias", password or PIN shall be the responsibility of the Customer and be deemed to be his/her use, and any liability flowing therefrom shall be that of the Customer.
The Customer's interest in the service is personal, and not professional. The Customer is using Casino Regal solely for his/her own personal use, and any other use, such as for commercial purposes, is prohibited.
The Customer agrees that if any of the statements made to the Company herein by him or her are untrue then this agreement shall be void and the Customer shall be liable to the Company for any and all damages and costs suffered as a result of such misstatement.
4. Copyright
Title, ownership and all intellectual property rights in and to Ecash, including images, photographs, animations, video, audio, music and text incorporated into same, shall remain in the Company. The Customer acknowledges that Ecash in source code form remains a confidential trade secret of the Company. The Customer agrees not to modify Ecash, or attempt to decipher, decompile, disassemble or reverse engineer Ecash, or create derivative works based on same.
The content of Ecash is protected as a collective work under applicable copyright laws. The copying, redistribution, or publication by the Customer of any such content or any part of Ecash is strictly prohibited.
5. Limited Warranty
The Company warrants the software (on CD-ROM disk) to be free from defects and software viruses at the time of delivery to the Customer.
To the extent permitted by law, the Company makes no other warranties, expressed or implied, with respect to Ecash, its merchantability, or its fitness for any purpose.
6. Limited Liability
Neither the Company nor anyone else involved in creating, producing or delivering Ecash shall be liable for any direct, indirect, incidental, special or consequential damages of any sort, whether arising in tort, contract or otherwise, including, without limitation, loss of income, use, or information, even if the Company has been informed of the possibility of such damages, arising out of the Customer's use or misuse of Ecash, or inability to use Ecash or out of any breach of any warranty.
If, for some reason, the Company is found liable in respect of any matter, the Company's liability in respect of any claim or loss shall be limited to the amount paid by the Customer for the software.
7. The Customer shall hold the Company, its licensees, distributors, wholesalers, affiliates, subsidiaries, advertising, promotion or other agencies, media partners and retailers harmless and shall indemnify the same from any costs, expenses, liabilities and damages whatsoever that may arise as a result of the Customer's use of Ecash.
8. Evidence of transactions is displayed on-screen while the customer is using Ecash.
With respect to the amount of money in the Customer's Ecash 'personal account', if there are any discrepancies between the on-screen display and the Company's records, it is the latter which prevail.
The Company supplies on-screen records of Customer transactions on a monthly basis.
9. Modifications.
The Agreement is subject to modification, amendment or restatement (in part or full) upon not less than ten (10) days notice to the Customer. Notice for this purpose shall be deemed given upon either:
(i) mailing a copy of the modification, amendment or restatement to the Customer by regular mail to Customer's last known address (which notice may be contained in a mailing to Customer containing other notices or information); or (ii) posting on the Company's Internet home page or the Software's Internet home page a copy of the modification, amendment or restatement for not less than thirty (30) days prior to the effective date. No modification, amendment or restatement hereof or waiver of any provision hereof shall be valid unless either the procedures set forth have been followed or the same shall be in writing and signed by the Customer and the Company. No course of prior dealings, usage of trade or parol or extrinsic evidence shall be used to supplement or modify any terms hereof. No employee, officer or agent of the Supplier may verbally alter, modify or waive any provision of the Agreements.
