Monaker Group, Inc. 8-K


 


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 Ritter House, Wickhams Cay II, PO Box 3170, Road Town, Tortola
VG1110, 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 2893 Executive
Park Drive, Suite 201, Weston,
Florida 33331 (“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 MK.GI 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 MK.GI and deliver to MK.GI 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 MK.GI such
                                         Deliverables
                                         including documentation for evaluation by MK.GI.



 


		3.2	Acceptance.
                                              Upon delivery by HPE to MK.GI of each Deliv erable,
                                         MK.GI
                                         shall test and evaluate such Deliverable for conformity to the applicable Specifications.
                                         MK.GI will use best efforts to conduct such evaluation within one (1) business day after
                                         delivery of such Deliverable. Notwithstanding the foregoing,
                                         MK.GI,
                                         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 MK.GI 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 MK.GI. 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 MK.GI 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 MK.GI as set forth in the SOW,
HPE hereby assigns to MK.GI all
Intellectual Property Rights obtained by HPE in relation to the Assets and all other material reproduced and developed by HPE
for MK.GI 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 MK.GI 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 MK.GI 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 MK.GI 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 MK.GI to continue to exercise all rights granted to MK.GI 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 MK.GI. In addition ,
                                         HPE
                                         shall defend ,
                                         indemnify
                                         and hold MK.GI 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 MK.GI,
                                         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	MK.GI
                                         represents and warrants on a continuing basis that:



 


		(a)	Corporate
                                         Authority. MK.GI 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 MK.GI 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 MK.GI,
                                         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 MK.GI 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,
                                         MK.GI
                                         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 MK.GI, 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, MK.GI 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	 
	 	 	 	 
	Nithinan
    Boonyawattanapisut 

(Authorized Director)	 	William
    Kerby - CEO	 
	 	 	 	 
	 	 	 	 
	Athid
    Nanthawaroon 

(Authorized Director)	 	 	 




  






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