If
you are a licensed user of AVY Systems check your current license agreement for
specific details on agreed fees and other terms.
AVY
SYSTEMS
AGENT LICENSE AGREEMENT
Copyright Exotic Properties Ltd 2003.
This License Agreement (this “Agreement”)
is made between Exotic Properties Limited (“Exotic Properties”) and the Agent
(the “Agent”) licensed to use the AVY Systems availability and booking
software.
WHEREAS:
Exotic
Properties has developed a web based vacation villa, apartment and yacht
charter booking system known as “AVY Systems” (the “Booking System”). The Agent desires to obtain a license to use
the Booking System. Exotic Properties is willing to provide the Agent with a
license to use the Booking System upon the terms and conditions of this Agreement.
1.1 Grant. Exotic Properties grants to the Agent a
nonexclusive, revocable license (the “License”) to use the Booking System, and
all associated software, documentation, manuals, materials, data, codes, and
all other information and materials specified by Exotic Properties from time to
time, (collectively the “Licensed Material”), on the terms and conditions set
out in this Agreement, for the sole purpose of making vacation rental bookings
for the properties listed on the Booking System (the “Permitted Use”).
1.2 Fee. In consideration of Exotic Properties
granting the License to the Agent, the Agent shall pay Exotic Properties the
Fee (plus any applicable taxes) described in the Application. The Agent acknowledges that the fee in respect
of any future license of the Licensed Materials it may acquire, may be more or
less than the Fee, in the sole discretion of Exotic Properties.
1.3 Term. The License shall commence on the date set
out in the Application and shall continue for twelve (12) months unless
terminated earlier in accordance with this Agreement. The License may be
extended for further twelve month periods by the Agent by payment of the fee
for the Licensed Materials being charged by Exotic Properties at the time of
the extension.
1.4 Back-up
Copy. The Agent may make one (1)
copy of the Licensed Material, but solely for use as back-up, and for no other
purpose. Except as aforesaid, the Agent
shall not reproduce, copy, duplicate or distribute the Licensed Material, or
any component of the Licensed Material, without Exotic Properties’ prior
written consent.
1.5 Retention
of Rights. Exotic Properties
reserves the right to use all or any portion of the Licensed Material in any
manner, and/or license, assign, convey, transfer, sell or otherwise alienate
all or any portion of the Licensed Material to any third party.
The Agent acknowledges that Exotic
Properties has the exclusive proprietary, ownership and (except for the
License) use rights to all the Licensed Material and:
(i)
all technical
data or written material concerning the Licensed Material, including all
designs, plans, illustrations, specifications, flow charts, diagrams, manuals,
documentation, trademarks, trade names, service marks, patents and copyrights
(if any, whether or not registered);
(ii)
all
know‑how or techniques concerning the Licensed Material; and
(iii)
all
inventions, discoveries, integrations, object codes, source codes, software and
future modifications, enhancements or improvements of, in or to the Booking
System or any Licensed Material (“Product Modifications”), including those
which the Agent may conceive or originate either on its own or jointly with the
assistance of others.
Exotic
Properties, in its sole discretion, shall determine which (if any) of the
foregoing items it will deliver and/or make available to the Agent.
3.1 Liens,
Assignment. The Agent shall keep all
the Licensed Material free of any liens, claims or encumbrances of any type,
and may not rent, lease, sell, sublicense, assign or otherwise transfer the
Licensed Material or any part of it at any time.
3.2 Confidentiality
of Trade Secrets. The Agent
acknowledges that all information, know-how and data which it acquires from
Exotic Properties concerning the application, development, technical
specifications or use of the Licensed Material, as well as the other items
concerning the Licensed Material that are identified in clause 2.1 above (other
than those which are in the public domain), are highly confidential and
constitute trade secrets of Exotic Properties (the “Trade Secrets”). The Agent agrees that during the term of this
Agreement and following the termination of this Agreement or the License for
any reason, the Agent shall not directly or indirectly:
(i)
sell, alienate,
transfer, assign, disclose or divulge Trade Secrets to any person or entity,
nor permit any other person to do so, without Exotic Properties’ prior written
consent; or
(ii)
use
Trade Secrets or any information relating to Trade Secrets in or for the
benefit of any individual, business, profession, association, partnership,
corporation, limited liability company, joint venture or other endeavor,
without Exotic Properties’ prior written consent.
3.3
Title
Protection. The Agent covenants that it shall not claim,
attack, compromise, file suit against or commit or fail to take any action
which could impair any of Exotic Properties’ rights, titles or interests in the
Licensed Material. The Agent shall not
attempt to develop any software similar to the Booking System or any Licensed
Material through reverse engineering, disassembly, decompliation or any other
method.
3.4 Indemnity. The Agent defends, indemnifies and holds
harmless Exotic Properties from all liabilities and reasonable expenses,
judgments, fines or penalties which Exotic Properties may incur that result
from any claims, actions, suits or proceedings that arise due to actions of Agent
which constitute a breach of the Agent’s representations, warranties or
obligations under this Agreement.
3.5 Prohibition of Publishing “Special Reserve
Properties”. The Agent covenants and
agrees that it will not, at any time during or after the term of the License,
publicize, promote or otherwise use information about or images of any Special
Reserve property listed on the Booking System in any way whatsoever, other than
in providing information in response to a specific request from a bona-fide
potential lessee of such property. Exotic Properties reserves the right to take
such legal action as it considers appropriate (including but not limited to
immediate termination of this Agreement) against the Agent if Exotic Properties
believes that the Agent has breached or proposes to breach this obligation.
3.6 Survival
of Covenants. The Agent’s
obligations under this clause 3 shall survive the termination of this Agreement
or any of this Agreement’s provisions, for any reason.
4.1 Exotic Properties’ Warranties. Exotic Properties warrants that it has the
right to enter into this Agreement and deliver the Licensed Material to the Agent. The foregoing warranty is for the sole
benefit of Agent, and not for any third party.
Except as expressly provided herein, all other warranties,
representations and statements (whether express or implied, oral or written,
arising by trade usage, statutory or otherwise) concerning the Licensed
Material are excluded. In particular Exotic Properties does not warrant that:
(i)
the
Licensed Material is error free;
(ii)
the
use of the Licensed Material will be uninterrupted for any reason;
(iii)
the
Licensed Material will meet the Agent’s requirements or is fit for any
particular purpose; or
(iv)
any
perceived defects in the Licensed Material will be corrected.
4.2
Agent’s
Warranties and Covenants. The Agent warrants and covenants that:
(i) it is empowered to
enter into this Agreement and carry out its obligations under this Agreement,
it has validly entered into this Agreement, and this Agreement is binding on
the Agent after execution; and
(ii) it will at all
times during the License, only make bookings using the Booking System on behalf
of persons for whom it has the power and authority to enter into legally
binding agreements for the lease or licensing of properties using the Booking System.
5.1 Waiver
of Damages and Remedies. Exotic
Properties disclaims and shall not be liable for, and the Agent waives any
claims or remedies the Agent may have against Exotic Properties for direct,
indirect, special, consequential, incidental or punitive damages of the Agent or
any other individual or entity, including but not limited to damage arising
from lost profits, customer claims, loss of use of any or all Licensed Material
or any equipment, software, system or facility, loss of data, lack or loss of
productivity, cost of substitute equipment, software, system or services, or
downtime costs which arise out of any breach of this Agreement by Exotic
Properties or any obligations Exotic Properties owed to the Agent, or Exotic
Properties’ breach of warranty, or which arises pursuant to any tort (including
negligence and strict liability, but excluding gross negligence or willful
misconduct) or other claim, or for any claim made against the Agent by any
other party, even if Exotic Properties has been advised of the possibility of
such claim in advance, except as set out in clause 5.3 below.
5.2 Delays.
Exotic
Properties shall not be liable for and the Agent waives any damages caused by
delay in delivery, installation or furnishing of the Licensed Material under
this Agreement.
5.3 Obligations. To the extent permitted by applicable law,
Exotic Properties’ liability in relation to the Licensed Material under this
Agreement howsoever arising will be limited at its option to:
(i)
the
replacement of any Licensed Material or part thereof;
(ii)
the
repair of any Licensed Material or part thereof; or
(iii)
the
payment of the cost of replacing or repairing the Licensed Material.
The Agent specifically waives all other remedies
available to it in law, in equity or otherwise, whether for breach of contract
or otherwise.
6.1 Log-on
Code. Exotic Properties shall
provide the Agent with one (1) unique Log-on Code for the Booking System. The individuals authorised by Exotic
Properties to use the Log-on Code are the owners and employees of the Agent
from time to time. Subject to this
Agreement, the Log-on Code shall be valid for the term of the License.
6.2 Confidentiality. The Agent shall, and shall ensure that its
owners, agents and employees, keep its Log-on Code and associated password
confidential and shall not directly or indirectly disclose either to any person
not authorised to use them without the prior written consent of Exotic
Properties. The Agent agrees to promptly
request in writing a new Log-on Code from Exotic Properties whenever any owner
or employee of the Agent ceases to be an owner or employee. The Agent agrees
that a failure by it to comply with this obligation will be deemed to
constitute a breach of its obligations under this clause 6.2.
6.3 Cancellation of Log-On. Exotic Properties may at any time cancel a
Log-On Code if it has reason to suspect that the Log-On Code is being used or
may be used in an unauthorised manner.
In that event, Exotic Properties will issue the Agent with a replacement
Log-On Code and password within 24 hours.
6.4 Confidentiality of Booking Information. Exotic Properties acknowledges that the
information the Agent enters into the Booking System in relation to bookings
for a property may be commercially sensitive.
Accordingly, Exotic Properties agrees that it will not use any such
information or contact any client of the Agent featured in such information for
its own purposes without the prior approval of the Agent, unless required by
law.
7.1 For
Cause. The Log-on Codes or any one
or more of them, and/or the License may be terminated at the option of Exotic
Properties at any time upon the occurrence of any of the following:
(i) the Agent discontinues
its active use of the Licensed Material;
(ii) the Agent commits a
material default under this Agreement (including but not limited to its failure
to meet any of its obligations under clauses 3.5, 4.2 or 6, or its failure to
make a payment of any amounts owing to Exotic Properties when and as the same
become due);
(iii) the Agent attempts
to reproduce, sell, mortgage, lease, assign, convey, transfer or sublicense any
Licensed Material; or
(iv) the Agent
voluntarily or involuntarily becomes subject to a bankruptcy proceeding, makes
an assignment for the benefit of creditors, becomes insolvent, otherwise
becomes subject to any proceeding for relief from or protection of creditors.
7.2 Return
of Data. Upon the termination of
this Agreement for any reason, the Agent immediately shall return all the
Licensed Material and all records and copies thereof to Exotic Properties, and
shall not retain any copies of the foregoing items in any form whatsoever
without the prior written approval of Exotic Properties.
8.1 Updates. Exotic Properties may change the performance,
specifications, programming method and/or design of any Licensed Material from
time to time. Exotic Properties will
advise the Agent of any material changes in the Licensed Material from time to
time.
8.2 Provision of Updates. The Agent acknowledges and agrees that Exotic
Properties shall have no obligation whatsoever to update and/or provide any
enhanced, modified or updated versions of the Booking System or any Licensed
Material to Agent at any time.
8.3 Discontinuance.
Exotic Properties shall have the right, at its sole option, to
discontinue the Booking System and/or the Licensed Material at any time or from
time to time. Exotic Properties has no
obligation whatsoever to maintain any version of the Booking System of the
Licensed Material in its files. Any such
discontinuance by Exotic Properties shall not constitute a breach by Exotic
Properties of this Agreement.
9.1 Amendments. This Agreement may only be amended by the
written agreement of the parties.
9.2 Entire Agreement. This Agreement
constitutes the entire understanding of the parties and prevails over all other
representations whether oral or in writing made prior to the date of this
Agreement.
9.3 Waiver of Obligations. No
failure of Exotic Properties to exercise any power given to it or to insist
upon the strict compliance by the Agent with any obligations or conditions and
no custom or practice of the parties or variances with the terms of this
Agreement shall constitute a waiver of Exotic Properties’ rights to demand
exact compliance with the terms of this Agreement, and nor shall a waiver by
Exotic Properties of any particular default affect or impair Exotic Properties’
rights in respect to any subsequent default of the same or different nature,
and nor shall any delay or omission of Exotic Properties to exercise any rights
arising from a default affect or impair Exotic Properties’ rights as to the
said default or any subsequent default.
9.4 Relationship between the Parties. This Agreement does not make the Agent the
agent, legal representative, partner or joint venturer of Exotic Properties for
any purpose whatsoever. The Agent has no
right to create any obligation or responsibility, express or implied, on behalf
of or in the name of Exotic Properties, or to bind Exotic Properties in any
manner or concerning any matter.
9.5 Applicable Law. This
Agreement will be governed by the laws of
9.6
Binding Effect. This Agreement shall be binding upon and
inure to the benefit of Exotic Properties and the Agent as well as their
respective successors and (in the case of Exotic Properties) permitted assigns.
9.7 Severability. If a court of competent jurisdiction rules
that any one or more of this Agreement’s provisions are invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any of this Agreement’s other provisions, and this Agreement
shall be construed as if it had never contained such invalid, illegal or
unenforceable provision. Without
limiting other provisions of this Agreement, the parties expressly intend and
agree that each and every limitation of liability, disclaimer of warranties or
exclusion of damages in this Agreement be severable and independent of any
other provision and be enforced as such.
Further, the parties expressly intend and agree that if any remedy in
this Agreement is determined to have failed of its essential purpose, all
limitations of liability and exclusions of damages set forth in this Agreement
shall continue to remain in effect.