S2M Software Licensing Agreement

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S2M Software Licensing Agreement

  1. 1.   S2M Software Licensing Agreement (NL)     The parties: Seats2Meet.com International BV, having its principal place of business in Utrecht, the Netherlands and being registered with the Chamber of Commerce under number TBD (“S2M”), and OFFICIAL NAME OF OTHER PARTY, having its principal place of business in PLACE, COUNTRY and registered with the Chamber of Commerce under number NUMBER / OTHER DESIGNATION AS REQUIRED (“Licensee”), both represented by officers authorized to enter into the obligations as presented below, Considering, that S2M has developed an innovative disruptive hospitality concept, catering for the growing numbers of Free Agents, Knowmads and other innovators in the world, who meet both in the physical and virtual worlds (“ the Concept”), S2M in connection with the Concept has available certain software to facilitate seat reservations in the physical world and virtual meetings in the virtual world (“the Software”), Licensee operates or is considering operating a hospitality business (“the Business”) and desires to use the Software to this end, S2M is willing to license to Licensee the Software for the Business, have agreed the following: Article 1. Software license 1.1. S2M hereby grants the Licensee a limited, nonexclusive and fully paid-up license to use the Software for the operation of the Business. Licensee shall use the Software (and no other software) to allow third parties to book seats at the Business and to provide a virtual platform. 1.2. S2M shall use its best efforts to keep the Software available for such third parties on a 24/7 basis but cannot make any guarantees about 100% availability. 1.3. From time to time S2M may release updates to the Software. S2M will timely inform Licensee about new features and other relevant aspects of such updates. While S2M will take feedback from Licensee into account regarding updates, S2M cannot refrain from releasing an update solely because of an objection by Licensee. 1.4. The Software allows third parties to make bookings for seats at the Business. S2M shall not be a party to such bookings; the contractual relationship is between the third parties and Licensee. S2M shall make the proper arrangements in the functioning of the software (e.g. the identification of the 1/7 Initials:
  2. 2.   S2M Software Licensing Agreement (NL)     parties involved) to this end. Licensee shall indemnify and hold harmless S2M from any claims from the third parties concerning the booking. 1.5. During the booking process the Software presents the standard S2M General Terms & Conditions for booking and asks the third parties to agree to them. Licensee agrees to adhere to these General Terms & Conditions in its relationship to these third parties. 1.6. Licensee shall supply in a timely manner all information, including logos, company information and general terms & conditions, that S2M indicates is necessary to configure the Software for the Business. S2M has no obligation to review this information but if S2M does so and encounters information that is incorrect or contradicts this agreement, S2M may require Licensee to change the information before configuring the Software or change the information at its own initiative. 1.7. The Software is licensed and not sold. S2M retains all right, title and interest in the Software, the documentation and any updates. 1.8. Licensee shall not use any trade names or trademarks of S2M or a confusingly similar designation in its promotional activities or operation of the Business, unless Licensee has concluded a separate agreement to this effect. Similarly, Licensee is not authorized to register, acquire or operate any trademarks, domain names or service user names containing any of the trade names or trademarks of S2M or a confusingly similar designation, unless a separate agreement to this effect is concluded. Article 2. Support obligations 2.1. S2M shall provide Licensee with a reasonable level of support by means of a virtual helpdesk in the form of consultations, assistance and advice concerning configuration and use of the Software. Such support shall be available during normal Dutch business hours between Monday and Friday, excluding holidays. Licensee is solely responsible for first-line support towards third parties wishing to book seats at the Business. 2.2. S2M shall provide the Licensee with relevant documentation regarding the use of the Software and any changes or updates thereto. 2.3. S2M shall grant the Licensee access to the MyownS2M.com Plaza where Licensee can meet other (potential) partners of S2M and discuss the Concept in general. 2.4. S2M shall grant the Licensee access to the MyownS2M.com Circle where the Licensee may discuss the Concept in detail. Any discussion in the MyownS2M.com Circle shall be regarded as Confidential Information of S2M. 2.5. S2M may use the name and logo and related information of Licensee in promotional activities, both online and offline, regarding the Software. S2M will honor reasonable requests regarding the specific way of presentation, e.g. logo colors or positioning. S2M will strive to include multiple licensees in such promotional activities where possible. 2/7 Initials:
  3. 3.   S2M Software Licensing Agreement (NL)     2.6. At the request of Licensee, S2M will strive to develop Application Programming Interfaces and export capabilities for data managed using the Software. S2M is entitled to refuse such a request if S2M deems the development infeasible or if the cost of implementing would be onerous or would jeopardize the security or good functioning of the Software. Costs for such development shall be Borne by S2M. The developed functionality shall be owned by S2M and be licensed at no additional charge but on a non-exclusive basis to Licensee. In case Licensee desires ownership of or exclusive rights to certain developments, the parties shall engage in negotiations with a view to conclude a separate agreement on the subject matter. Article 3. Confidentiality obligations 3.1. A party receiving Confidential Information from another party shall treat such Confidential Information as strictly confidential and use this solely for the purpose of this agreement. This obligation to observe confidentiality will be valid for the term of this agreement plus a period of three (3) years after its termination. 3.2. A receiving party shall refrain from distributing Confidential Information to third parties without prior written consent of the disclosing party. The receiving party is permitted to distribute Confidential Information to its employees and third- party contractors, but exclusively if the distribution of such Confidential Information is necessary for the purpose of this agreement and all employees and contractors in question have agreed in writing to be bound by confidentiality obligations at least as strict as the present article. 3.3. In the event of the Information being submitted to a third party in the context of the above paragraphs, the receiving party will remain liable at all times for any damage suffered by the disclosing party arising from actions or omissions on the part of the third party, such as from the publication of Confidential Information by the third party without prior consent, for instance. 3.4. If the receiving party is summoned by the competent authorities to submit Confidential Information for the benefit of a judicial investigation or legal proceedings it is entitled to submit this Information. However, before submitting the Information the receiving party will undertake to inform the disclosing party about the summons to provide it with the opportunity to object to the Information being submitted, for instance by seeking a preliminary injunction at the relevant court. 3.5. Confidential Information is defined as all Information marked as confidential, of which the confidential nature is reported as such within 30 days after distribution or of which the receiving party should have recognized the confidential nature from the content of the Information. However, Information shall not qualify as Confidential Information if and to the extent the receiving party can prove that this Information: a) was obtained from sources available to the general public such as newspapers, patent databases or publicly accessible websites; or 3/7 Initials:
  4. 4.   S2M Software Licensing Agreement (NL)     b) was already in possession of the receiving party prior to the date on which it was issued by the disclosing party; or c) is available from a third party without this party being in default towards the disclosing party arising from a confidentiality clause by distributing the Information to the receiving party; or d) was developed by the receiving party independently and without the use of the Information of the disclosing party. 3.6. Information will, however, not lose its confidential nature solely because individual aspects pertaining to it are available as meant in the previous paragraph. 3.7. Information is defined as all information and data concerning business operations, marketing, research, development, inventions, know-how, samples, product and service specifications, software, business relations, customers or suppliers of a party, irrespective of the form in which this has been recorded or is provided (including e-mail, digital files, paper documents and oral notification). Article 4. Liability of the parties 4.1. Except in cases of intent or gross negligence, S2M shall not be liable for any damages, regardless of cause, suffered by Licensee in connection with its operation of the Business. In particular S2M shall not be liable for lost revenue or lost profits for its failure to have the Software available at any particular point in time. 4.2. No liability shall exist for damages that have not been reported to S2M in writing within thirty days of their occurrence, or for damages where Licensee failed to take appropriate measures to limit such damages. 4.3. The Licensee shall indemnify, defend and hold harmless S2M against any and all losses, claims, damages, liabilities, actions, costs or expenses, including reasonable attorneys’ fees incurred by it in connection with any claim from third parties in connection with the Business. Article 5. Prices 5.1. In consideration for the rights and permissions granted under this agreement, Licensee shall pay to S2M a booking fee per seat booked using the Software and a support fee per seat booked using the Software. No support or booking fee shall be due for a seat if Licensee provides the seat free of charge. The booking and support fees are indicated on the pricing table provided separately to Licensee. 5.2. S2M shall invoice Licensee once a month for any amounts due. Records generated by the Software shall be deemed proof of any amounts due, unless Licensee can provide sufficient evidence that such records are inaccurate. Licensee shall pay all invoices within 30 days of receipt. If Licensee is located in the Netherlands, Licensee hereby grants S2M authorization for automatic debiting from one of its Dutch bank accounts. 4/7 Initials:
  5. 5.   S2M Software Licensing Agreement (NL)     5.3. If Licensee does not pay the amount due within the stipulated term, Licensee will be in default automatically and will owe legal interest over the outstanding balance, payable on a monthly basis. Furthermore, Licensee will pay any costs, fees and expenses incurred in connection with the collection of the debt. 5.4. Any invoiced amounts are due immediately if the other party has been granted suspension of payments, whether provisionally or not; if a petition for bankruptcy has been filed with respect to the other party and the petition has not been revoked within seven days; if the other party files for bankruptcy itself; or if the other party’s enterprise is dissolved or terminated, except for the purpose of a merger with or absorption by another company. 5.5. If Licensee disputes all or part of an invoice, Licensee must provide a complaint with supporting evidence to S2M in writing within seven days after receiving the invoice. In such an event Licensee is entitled to suspend payment of the disputed part of the invoice but not of any other part. If S2M deems the complaint is justified, S2M will issue an adjusted or replacement invoice. If S2M deems the complaint unjustified, Licensee will pay the disputed balance immediately. Licensee will also pay legal interest calculated on a monthly basis from the moment the original term of payment expired, and any costs, fees and expenses incurred in connection with the collection of the debt. 5.6. S2M may suspend its obligations under the Agreement, and in particular may disable or limit the ability of third parties to book seats at the Business, if S2M may reasonably make the assumption that Licensee will fail or has failed to comply with its payment obligations. 5.7. All prices are exclusive of VAT and other government-imposed levies. 5.8. S2M may increase the prices once every calendar year in line with the Dutch consumer price index. Article 6. Change of terms 6.1. This agreement may be changed at any time if both parties agree to such change and if the changes are recorded by means of written instrument. 6.2. S2M has the right to unilaterally adapt or add to this agreement once every calendar year after the first anniversary of the Effective Date. 6.3. However, before making such unilateral adaptations or additions, S2M shall announce the planned changes to Licensee at least three months in advance. If Licensee raises any objections within two months after such announcement, S2M will give serious consideration thereto and may withdraw any or all of the adaptations or additions. S2M will give notice to Licensee of such withdrawal. Failure to object to certain adaptations or additions shall constitute acceptance of such adaptations or additions. 6.4. Licensee has the right at any time in the three-month period after receipt of such announcement to terminate this Agreement effective at the end of that period, if at the end of that period S2M maintains at least one adaptation or addition that Licensee has objected to. 5/7 Initials:
  6. 6.   S2M Software Licensing Agreement (NL)     Article 7. Term and termination 7.1. This agreement shall enter into force on the last date of signature below (“the Effective Date”) and remain so until terminated in accordance with the provisions of this article. 7.2. Licensee may terminate this agreement at any time by means of written notice to S2M three months before the desired date of termination. 7.3. S2M may terminate this agreement if Licensee repeatedly fails to pay in full the invoices sent by S2M for amounts due under this agreement. Furthermore, S2M may terminate this agreement if within one year of the Effective Date Licensee has not implemented the Software as its only means of booking of seats. 7.4. After termination, Licensee shall as soon as is practical: a) cease all use of the Marks, and b) remove, suspend or take down all web pages and other services (e.g. Twitter accounts) related to the Concept, and c) return or destroy all copies of S2M Confidential Information. 7.5. Licensee shall honor any obligations regarding bookings made through the Software before the date of termination. Furthermore, both parties remain bound by those obligations that by their nature are intended to survive termination of the agreement, for as long as the other party can reasonably claim a benefit of those obligations. 7.6. After termination S2M shall supply in a manner to be mutually agreed upon a copy of all relevant customer data regarding customers that have made a booking with Licensee during the term of this agreement. Licensee is upon receipt solely responsible for the proper and legal handling of that customer data. Article 8. Miscellaneous 8.1. This agreement shall be governed by and construed in accordance with the laws of the Netherlands without consideration of its conflict of law provisions. 8.2. Any disputes arising out of or in connection with this agreement shall be brought before the competent courts for the principal place of business of S2M. 8.3. The parties enter into this agreement as independent contractors. No employment relationship is created by this agreement between S2M and Licensee or any of their respective employees or agents. Neither party has the power to bind the other party or incur obligations on the other party’s behalf without the other party’s prior written consent. Licensee shall operate the Business at its own risk and for its own benefit. 8.4. In the event that any one or more of the provisions of this agreement is determined by a court of competent jurisdiction to be invalid, unenforceable, or illegal, such invalidity, unenforceability, or illegality shall not affect any other provisions of this agreement, and the agreement shall be construed as if the 6/7 Initials:
  7. 7.   S2M Software Licensing Agreement (NL)     challenged provision had never been contained herein. The parties further agree that in the event such provision is an essential part of this agreement, they will immediately begin negotiations for a suitable replacement provision. 8.5. The failure of either party at any time to require performance by the other party of any provision of this agreement shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this agreement be taken or held to be a waiver of any further breach of the same provision. 8.6. S2M refers customers of Licensee through the Software to a publicly-accessible service where third parties may leave comments and reviews regarding Licensee and other parties. This service is not operated by S2M and S2M has no control over the content of the service. In case Licensee feels a particular comment or review is inappropriate, it is the sole responsibility of Licensee to raise the issue with the operator of the service. 8.7. Neither party may bring an action, regardless of cause or form, arising out of or related to this agreement more than one year after the date of discovery of the cause of action or the date of termination of this agreement, whichever is earlier. 8.8. Any requirement for a “written” statement can be fulfilled by using a digitized version communicated by electronic means such as facsimile or e-mail, provided the identity of the sender and integrity of such electronic means can be determined with sufficient certainty. Was signed, For S2M For Licensee Name: Name: Title: Title: Date: Date: 7/7 Initials:

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