MASTER DEVELOPMENT AND LICENSING AGREEMENT
Exhibit 10.1
Contract #HPEMKGI202103001
MASTER DEVELOPMENT AND LICENSING AGREEMENT
This Master Development and Licensing Agreement (the “Agreement”) is made and entered into on March 17, 2021 (the “Effective Date”), by and between, HotPlay Enterprise Limited , a corporation organized and existing under the laws of British Virgin Island, with its principal office at Xxxxxx House, Wickhams Cay II, XX Xxx 0000, Xxxx Xxxx, Xxxxxxx XX0000, British Virgin Islands (“HPE”) and Monaker Group, a corporation organized and existing under the laws of the United States of America, with its principal office at 0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxx 00000 (“MKGI”). HPE and MKGI shall collectively be referred to as the “Parties” and individually as a “Party”.
RECITALS:
WHEREAS, MKGI is engaged in the business of developing online travel platform and applications;
WHEREAS, HPE is engaged in the business of producing digital assets and software platforms;
WHEREAS, HotNow Platform is HPE’s proprietary geolocation-based discovery platform for shops and promotions with integrated in-app promotional offers that allows merchants and brands to deliver exclusive promotions to nearby consumers; and
WHEREAS, MKGI wishes to license software frameworks “HotNow Platform” from HPE and engage HPE, using HotNow Platform as the foundation, to develop for MKGI assets and extra features required for MKGI’s travel platform (the “Travel App”) defined by each Statement of Work (“SOW”).
NOW, THEREFORE, in consideration for the mutual promises contained herein, the Parties agree as follows:
| 1. | DEFINITIONS |
The following terms shall have the following meanings herein:
| 1.1 | “Completion Date” shall mean the date of completion for each Milestone as specified in the applicable SOW. |
| 1.2 | “Assets” shall mean certain assets of the Travel App designed by MKGI and to be reproduced and/or developed by HPE under the Agreement. The Assets shall confirm to all of the Specifications set forth in each SOW. |
| 1.3 | “Confidential Information” shall mean any information disclosed by one Party to the other (i) prior to the date of this Agreement but with respect to the subject matter hereof, or (ii) pursuant to this Agreement, in written, oral, graphic, machine readable or other form and is of a confidential nature or has been marked or designated as such by the disclosing Party. |
| 1.4 | “Deliverables” shall mean the items to be delivered by HPE to MKGI as set forth in the applicable SOW. |
| 1.5 | “Development Task” shall mean the reproduction and development of the Asset to be performed by HPE pursuant to this Agreement and each applicable SOW. |
| 1.6 | “Payment” shall mean the payment of the fee as specified in each applicable SOW. |
| 1.7 | “Intellectual Property Rights” shall mean any and al I rights existing now or in the future, under copyright law, industrial design rights law, patent law, trade secret law, trademark law, and all similar proprietary rights, and any and all renewals, extensions, and restorations thereof, now or hereafter in force and effect worldwide. |
| 1.8 | “Milestone” shall mean each development milestone identified in the applicable sow. |
| 1.9 | “Source Materials” shall mean any code, audi o, visual, graphic or textual material produced by HPE for performance of this Agreement. |
| 1.10 | “Specifications” shall mean the technical and other specifications for the Deliverables as set forth in the applicable SOW. |
| 2. | LICENSING |
| Upon paying the licensing fee specified in Section 6, HPE hereby grants XX.XX a perpetual non-transferable, non-exclusive license to use, and/or modify the HotNow Platform solely to support the development and expansion of MKGI’s travel business. |
| 3. | DEVELOPMENT |
| 3.1 | Development. HPE agrees to provide services as requested by XX.XX and deliver to XX.XX deliverable items as set forth on each SOW, which will be executed by the Parties from time to time. HPE shall perform the Development Task in accordance with the Specifications and the schedule of completion as set forth in each applicable SOW. Upon completion of the Deliverables, HPE shall deliver to XX.XX such Deliverables including documentation for evaluation by XX.XX. |
| 3.2 | Acceptance. Upon delivery by HPE to XX.XX of each Deliv erable, XX.XX shall test and evaluate such Deliverable for conformity to the applicable Specifications. XX.XX will use best efforts to conduct such evaluation within one (1) business day after delivery of such Deliverable. Notwithstanding the foregoing, XX.XX, at its reasonable discretion, may extend three (3) business days more after the said one (1) business day. If no written response is sent by XX.XX to HPE within the above period, the Deliverable shall be deemed approved. |
| 3.3 | Penalty for Delay. Penalty for any delay for any of the Deliverables shall be subjected to terms specified in each applicable SOW. |
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| 3.4 | Changes. The Parties may , upon mutual written agreement , consent to change the Completion Date for a Deliverable and the corresponding Specifications. |
| 3.5 | Development Restriction. HPE shall not directly or indirectly reproduce and develop assets for any other company or company’s platform similar in likeness to the MKGI’s Travel Platform Assets to the extent that users of such platform would find the assets to be similar to the MKGI’s Travel Platform Assets , in likeness to the design or feeli ng, without obtaining written consent from XX.XX. Any ambiguity as to whether such assets are similar to that of the Assets under this Section 3.5 shall be settled by negotiations between the Parties. |
| 4. | OWNERSHIP |
| The Assets reproduced or developed by HPE for XX.XX under this Agreement shall be deemed to be “ works made for hire” for copyright purposes. Upon completion of the Development Task and receipt of all Fees paid by XX.XX as set forth in the SOW, HPE hereby assigns to XX.XX all Intellectual Property Rights obtained by HPE in relation to the Assets and all other material reproduced and developed by HPE for XX.XX under this Agreement includ ing, without li mitation, all Source Material, s toryboards, drawings, render ings, files and documents related to all of the UX/UI Graphic. |
| 5. | REPRESENTATIONS, WARRANTIES AND INDEMNITIES |
| 5.1 | HPE represents and warrants on a continuing basis that: |
| (a) | Corporate Authority. HPE has the right to enter into this Agreement and the auth ority, corporate and otherwis e, to execute and deliver this Agreement and to perform its obligations hereunder. |
| (b) | No Conflicts. The executi on, delivery and performance by HPE under this Agreement will not: (i) conflict with or violate any law, rule, regulation, authorization or judgment of any governmental authority having applicability to HPE or its actions ; or (ii) conflict with or result in any breach of, or constitute a default under any commitment, contract or other agreement, instrument or undertaking to which HPE is a party or by which any of its property is bound. |
| (c) | Independent Work. The Assets and Deliverables will have been independently created by HPE’ s employees or those contracted by HPE and the use of the Assets by XX.XX will not depend on the acquisition of rights from any third party. |
| (d) | No Infringement or Claims. Neither the Assets nor the Deliverables nor the exercise by XX.XX of any of the rights granted hereunder , will infringe any intellectual property or other right of any third party. |
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| (e) | Indemnity. HPE agrees to defend XX.XX or any ofMKGI’s sublicensees or any of their direct or indirect customers from any claim or action alleging that the Assets or any Delive rables, or any portion thereof, infringes any third party’ s Intellectual Property Right and to pay all damages awarded, or settlements entered into, in connection therewith. If the Assets or any Delive rables, or any portion thereof, is held to infringe any copyright or other Intellectual Property Right, HPE will use its best efforts to modify or replace , in accordance with MKGI’s request , the Assets or any Deliverables with equ ivalent , non-infringing full motion video, or to obtain all necessary rights with respect thereto to enable continued use and distribution of the Assets and for XX.XX to continue to exercise all rights granted to XX.XX under this Agreement. Notwithstanding any provision herein to the contrary, HPE shall have no liability or obligation pursuant to this Section 4.l (e), to the extent any third party claim or action is caused by the design of the Assets submitted by MKGI or modification of the Assets by XX.XX. In addition , HPE shall defend , indemnify and hold XX.XX harmless from and against any and all damage , li abilit y, cost or expenses (including without limitation reasonable attorney’s fees and related costs) incurred by XX.XX, its affiliates and its and their directors, officers, employees, agents, successors and assigns based upon or in connection with a material breach by HPE of this Agreement. |
| 5.2 | XX.XX represents and warrants on a continuing basis that: |
| (a) | Corporate Authority. XX.XX has the right to enter into this Agreement and authority, corporate and otherwise, to execute and deliver this Agreement and to perform its obligations hereunder. |
| (b) | No Conflicts. The execution , delivery and performance by XX.XX of this Agreement will not: (i) conflict with or violate the articles of incorporation of MKGI or any provision of any law, rule, regulation , authorization or judgment of any governmental authority having applicability to XX.XX, its employees , or its or their actions; or (ii) conflict with or result in any breach of, or constitute a default under, any note , security agreement , commitment , contract or other agreement, instrument or undertaking to which XX.XX is a party or by which any of its property is bound. |
| 6. | FEES |
| 6.1 | Fees. |
| (a) | In consideration of the license granted pursuant to this Agreement, XX.XX shall pay HPE a non-recoupable and non-refundable (the “License Fee”) sum of four hundred thousand United States Dollars (USD 400,000) within five (5) days from the Effective Date of this Agreement. |
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| (b) | In consideration of HPE’ s reproduction and development of the Assets and delivery of the Deliverables in accordance with the terms and conditions of this Agreement , MKGI shall compensate HPE in accordance with the applicable SOW. |
| 6.2 | Retainers. MKGI shall make an upfront retainer payment of$US100,000 (One hundred thousand United States dollars) to HPE within five (5) days from the Effective Date of this Agreement. The payment shall be applied to the work described in the applicable SOW. |
For clarity, MKGI shall make a total payment of $US500,000 (Five hundred thousand United States dollars) to HPE within five (5) days from the Effective Date of this Agreement.
| 6.3 | Rate. The rate of service provided by HPE shall be $US4,500 (Four thousand and five hundred United States dollars) per man per month. Each man-month is defined by 160 man-hours of service monthly. |
| 6.4 | Taxes. Any withholding taxes or other charges (in cluding , but not limited to, banking charges) that MKGI is required by statute to withhold and pay on behalf of HPE under this Agreement shall be deducted from the payment and remitted to the taxing authority. |
| 7. | CONFIDENTIALITY |
| 7.1 | Confidentiality. Each Party shall treat as all Confidential Information of the other Party confidential (as set forth herein) and shall not use such Confidential Information except as contemplated herein or otherwise authorized in writing for three (3) years after expiration or termination of this Agreement. Each Party shall implement reasonable procedures to prohibit the unauthorized disclosure or misuse of the other Party’s Confidential Information and shall not disclose such Confidential Information to any third party except for the purpose of this Agreement, and subject to confidentiality obligations similar to those set forth herein. Each Party shall use at least the same procedures and degree of care that it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other Party under this Agreement , but in no event less than reasonable care. If Confidential Information is disclosed orally, it must be designated by the disclosing Party as Confidential Information at the time of such initial disclosure and confirmed in a written resume to be prepared and sent by the disclosing Party to the receiving Party within two (2) weeks following such initial disclosure. |
| 7.2 | Exceptions. Notwithstanding the above, neither Party shall have liability to the other with regard to any Confidential Information of the other which: (i) was publicly available at the time it was disclosed or becomes publicly available through no fault of the receiving Party; (ii) was known to the receiving Party, without similar confidentiality restriction, at the time of disclosure; (iii) is disclosed with the prior written approval of the disclosing Party; (iv) was independently developed by the rece1vmg Party without any use of the Confidential Information as evidenced by records; or (v) becomes known to the receiving Party, without similar confidentiality restriction, from a source other than the disclosing Party without breach of this Agreement by the receiving Party. In addition, each Party shall be entitled to disclose the other Party’ s Confidential Information to the extent required by any order or requirement of a court, administrative agency, or other governmental body, provided that the receiving Party shall provide prompt, advance notice thereof to the disclosing Party to enable the disclosing Party to seek a protective order or otherwise prevent such disclosure. |
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| 8. | TERMINATION |
| 8.1 | Term. With the exception of the perpetual licensing term, this agreement shall remain effective for the period of two years from the date first set forth above. For avoidance of doubt , any SOW agreed and signed by the Parties prior to the two years expiry will be covered by this Agreement. Unless earlier terminated under Section 3.3, Section 8.2, the term of this Agreement shall commence on the Effective Date and shall expire when all of the following is completed: (i) delivery of all Deliverables conforming to the Development Task description and Specification and subsequent acceptance by MKGI; (ii) receipt by MKGI of all Deliverables and work materials in relation to the development of the Assets, including without limitation , all Source Material , drawings, modeling , mappings , files and documents related to the Assets; and (iii) payment to HPE by MKGI of the Payment. |
| 8.2 | Termination. |
Either Party, upon giving written notice to the other Party, may terminate this Agreement:
| (i) | If the other Party materially breached any provision hereof and failed to cure such breach within ten (10) business days after receipt of written notice from the terminating Party describing the breach in reasonable detail; or |
| (ii) | At any time in the event the other Party ceases or suspends its business, or becomes subject to any bankruptcy, insolvency or any other similar proceeding. |
| 8.3 | Consequences of Termination. |
| (a) | Termination of this Agreement shall not preclude resort by the terminating Party to any other remedies available to it. |
| (b) | Upon expiration or termination of this Agreement, each Party shall return any and all Source Material , Confidential Informati on, Deliverables or any work materials to the other Party. If MKGI desires to use or retain any of such materials owned or developed by HPE, then Parties will in good faith negotiate and agree on the terms and conditions upon which MKGI will be permitted to use or retain such materials. |
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| (c) | Upon termination of this Agreement by XX.XX, HPE shall refund any fees received from MKGI hereunder prior to such termination, provided, however, that MKGI shall be entitled to seek recovery of the actual damages caused to MKGI by the delay or non-delivery of the Deliverables if the refund amount is insufficient to compensate MKGI for actual expenses and damages incurred due to such termination. |
| 8.4 | Survival. Notwithstanding anything contrary in this Agreement, the provisions of Sections 2, 3, 4, 6, 7 and 8 shall survive termination or expiration of this Agreement. |
| 9. | GENERAL PROVISIONS |
| 9.1 | Governing Law. The signing, performance, dissolution, or termination of this Agreement and all disputes arising out of or in connection with this Agreement, XX.XX will determine whether it wants jurisdiction to be in British Virgin Island or the United States of America, without giving effect to conflicts of law principles. |
| 9.2 | Arbitration. It is agreed that in case any dispute or controversy arises out or in connection with this Agreement, the Parties shall seek to solve the matter amicably through discussions between the Parties. If the Parties fail to do so within thirty (30) business days after the receipt by a Party from the other Party of a notice of the existence of a dispute or controversy , it shall be finally settled by arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce then in effect. The place of arbitration shall be Singapore. The award of the arbitrators shall be final and binding on the Parties and judgment thereon may be entered in any court of competent jurisdiction. |
| 9.3 | Entire Agreement. This Agreement embodies the entire agreement of the Parties with respect to the subject matter hereof and supersedes and cancels any and all prior understandings or agreements, oral or written, in relation hereto, which may exist between the Parties. No oral explanation or oral information by any of the Parties will alter the meaning or interpretation of this Agreement. |
| 9.4 | Assignment. Neither Party may assign any rights or delegate any duties under this Agreement without the other Party’s prior written consent, and any attempt to do so without such consent shall be void. |
| 9.5 | Notices. All notices , demands, requests, consents or other communications hereunder shall be in writing and shall be given by personal delivery, by express courier, by registered mail with return receipt requested, or by facsimile , to the Parties at the addresses shown be lo w, or to such other address as may be designated by written notice given by either Party to the other Party. Unless conclusively proved otherwise, all notices, demands, requests , consents or other communications hereunder shall be deemed effective upon delivery if personally delivered, three (3) business days after dispatch if sent by express courier, ten (10) business days after dispatch if sent by registered or certified mail with return receipt requested, or confirmation of the receipt of the facsimile by the recipient if sent by facsimile. |
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| 9.6 | Severability. Should any term, clause or provision of this Agreement be judged to be invalid for any reason whatsoever, such invalidity shall not affect the validity or operation of any other term , clause or provision, and such invalid term, clause or provision shall be deemed to have been deleted from this Agreement. |
| 9.7 | Waivers. No waiver by any Party of any breach or failure to comply with any prov1s10n of this Agreement shall be construed as, or constitu te, a continuing waiver of such provision or a waiver of any other breach of, or failure to comply with, any other provision of this Agreement. |
| 9.8 | Headings. The headings contained in this Agreement are for convenience of reference only, and they do not form a part of this Agreement and shall not in any way affect the interpretation thereof. |
| 9.9 | Independent. The Parties are ind ependent , and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement. Neither Party shall make any warranties or representations on behalf of the other party. |
| 9.10 | Counterparts. This Agreement may be validly executed in any number of counterparts each of which when so executed and delivered shall be an original but which together shall fonn one and the same instrument. Executed counterpart signature pages of this Agreement scanned and transmitted electronically in either Tagged Image Format Files (TIFF) or Portable Document Format (PDF) or the equivalent shall be treated as originals, fully binding and with full legal force and effect, and the parties waive any rights they may have to such treatment.. |
| 9.11 | Force Majeure. Neither party shall be held liable for delay or failure to perform any of its obligations hereunder, if such delay or failure occurs because of force majeure including , but not limited to, acts of God, war, rebe llion, commotion and explosion. The Parties acknowledge and agree that COVID-19 does not prevent them from completing their obligations in full compliance with this Agreement and that, as such , neither COVID-19 nor the consequences of COVID-19, direct or indirect, governmental or otherw is e, shall be considered to be an event of force majeure. |
| 9.12 | Severance.If any prov1s1on of this Agreement shall for any reason to be determined to be illegal or unenforceable, such illegality or unenforceability shall not affect the validity of the remaining portions and provisions hereof, which shall remain fully enforceable. A copy of this Agreement may be used in lieu of an original for any and all purposes, including, without limitation, in connection with the enforcement of either party’s rights under this Agreement. |
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| 9.13 | Attachment(s). The Attachment(s) to this Agreement shall form an integral part thereof. |
IN WITNESS WHEREOF, the Parties have signed and delivered this Master Development and Licensing Agreement as of the Effective Date written above.
| HotPlay Enterprise Limited | Monaker Group | ||
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| Nithinan
Boonyawattanapisut (Authorized Director) |
Xxxxxxx Xxxxx - CEO | ||
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| Athid
Nanthawaroon (Authorized Director) |
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