VENDOR LICENSE AND SERVICES AGREEMENT
PLEASE READ THIS VENDOR LICENSE AND SERVICES AGREEMENT (“AGREEMENT”) CAREFULLY. BY USING THE SILVERBACK HOSTS APP MOBILE APPLICATION OR BY UPLOADING ANY CONTENT TO OUR MOBILE APPLICATION (“SOFTWARE”), YOU (“VENDOR”) AGREE TO BE BOUND BY ALL OF THE TERMS IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE TERMS, DO NOT USE OR UPLOAD CONTENT TO OUR MOBILE APPLICATION OR WEBSITE. YOU AND SILVERBACK HOSTS ARE COLLECTIVELY REFERRED TO HEREIN EACH AS A “PARTY” AND COLLECTIVELY AS “PARTIES.”
1. Software License. Subject to the terms and conditions set forth herein, Silverback Hosts hereby grants to Vendor, and Vendor hereby accepts, a limited, non-exclusive, non-transferable license to access and use the Software in the Territory (as defined in Section 2) for the Term (as defined in Section 3(a)) solely in connection with publicizing and selling Vendor’s goods and services “Vendor Offers.”
Vendor may use the Software to post Vendor Offers for the sole purpose of promoting and selling Vendor’s Goods and Services.
2. Territory. The Territory shall be any state, jurisdiction, or territory throughout the world where Vendor is legally licensed and authorized by law to promote and offer Vendor’s Goods and Services.
3. Term and Termination.
(a) This Agreement shall commence as of the Effective Date shall remain in effect through the expiration of all published Vendor Offers or such earlier date as all Vendor Offers are redeemed or refunded to their purchasers, unless otherwise terminated as set forth in this Section 3.
(b) If Vendor is at any time in material breach of its obligations under this Agreement and such breach is not cured within thirty (30) business days, after receiving written notification thereof, Silverback Hosts shall have the right to terminate the Term hereof immediately upon written notice to Vendor.
(c) Upon the expiration or termination of the Term of this Agreement for any reason, all rights of Vendor under this Agreement shall terminate and automatically revert to Silverback Hosts.
4. Fees. As consideration for use of the Software, Silverback Hosts shall receive a booking engine fee for all Vendor Offers sold using the Software as follows (“Booking Engine Fee”):
(a) The Booking Engine Fee shall equal the difference between the Vendor Offer price and the full market value as determined by Silverback Hosts, in its sole discretion.
(b) The Booking Engine Fee shall be added to the publicly viewed price of the Vendor’s Offer (“Purchase Price”) published through the Software. For example, if the price of Vendor’s Offer is $1000.00, and Silverback Hosts determines the full market value of Vendor’s Offer is $1500.00, the Purchase Price of Vendor’s Offer shall be $1500.00; if the price of Vendor’s Offer is $1000.00 and Silverback Hosts determines the full market value of Vendor’s Offer is $1001, the Purchase Price of Vendor’s Offer shall be $1001.00.
(c) Vendor Offers sold through the Software shall be facilitated by a third-party payment processor (“Payment Company”). Vendor and Silverback Hosts will receive their respective share of the Purchase Price directly from the Payment Company pursuant to the Payment Company’s policies and procedures. For clarity, Silverback Hosts shall never be in possession of Vendor’s share of the Purchase Price and does not assume any liability for payment of any funds to Vendor.
5. Vendor Representations and Warranties. Vendor acknowledges, covenants, represents and warrants that:
(a) the Purchase Price of any Vendor Offer, including the Booking Engine Fee, shall be lower than Vendor’s standard retail price and/or the price
(b) Silverback Hosts does not sell any goods or services of its own. Rather, the Software is an electronic marketplace that Vendor may use to facilitate promotion of the Vendor’s inventory. As a result, Silverback Hosts is never a party to any transaction between Vendor and any third party and Vendor assumes all liability related to Vendor Offers and the sale of Vendor’s goods and services through the Software, including, without limitation, all refunds, rebates, and/or cancellations of Vendor Offers;
(c) Vendor’s use of the Software as authorized by this Agreement and in compliance with all terms and conditions herein shall not violate any laws or regulations to which the Vendor is required to adhere to relating to Vendor’s Goods and Services. Further, Vendor agrees that during the Term, Vendor shall maintain the validity of any licenses or other insurance required for Vendor’s business and/or related to the sale of Vendor’s Goods and Services;
(d) Vendor shall comply with all federal, state, provincial, local, municipal or other law (including common law), constitution, statute, code, ordinance, rule, bylaw, regulation, decree, order or other similar mandate or requirement regulating the Vendor’s business and/or sale of Vendor’s Goods and Services;
(e) Vendor is the sole owner of all right, title and interest in and to, including without limitation, all intellectual property rights, in any content Vendor or Vendor Affiliated Parties (as defined below) publishes through the Software and that such content does not violate or infringe any copyright, trademark, right of publicity, contract, or proprietary rights of any third party, or contain anything libelous or defamatory;
(f) Vendor further represents and warrants that: (i) Vendor is registered, as applicable, for the collection of sales use and other similar taxes in all states and localities in which Vendor’s Goods and Services will be made available pursuant to the terms of the Vendor Offer; and (ii) Vendor will collect and remit any and all applicable state or local sales, use, hotel occupancy, and other similar taxes that may apply to the redemption of the Vendor Offers or the supplying of Vendor’s Goods and Services.
6. Ownership of Intellectual Property.
(a) Silverback Hosts is the exclusive owner of the Software and all of the intellectual property rights associated with the Software. Vendor will not directly or indirectly challenge the ownership of the Software, any registrations thereof and/or applications therefor in any jurisdiction, any improvements and developments made to the Software at Vendor’s suggestion, or the right, title and interest of Silverback Hosts therein and thereto, nor will it claim any interest in the Software in any jurisdiction, other than the rights expressly granted hereunder.
(b) Vendor is the exclusive owner of its name, logo(s), trademarks, URLs, and other intellectual property and, together with users of the Software, all of the content displayed on the Software related to Vendor’s Offers.
(c) Vendor shall not attempt, or directly or indirectly allow any person or other third party to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, reverse compile, disassemble, reverse engineer, download, transmit or distribute all or any portion of the Software in any form or media or by any means.
(d) The provisions of this Section 6 shall survive termination of this Agreement.
7. Integration with Other Services. Silverback Hosts may integrate the Software with third-party services to facilitate certain functionality (e.g., payment processing).
8. Limited Performance Warranty. Silverback Hosts warrants that the Software will perform substantially as demonstrated and will be free of material errors or defects. In the event Vendor believes that Silverback Hosts is in violation of this limited performance warranty, Vendor shall notify Silverback Hosts and Silverback Hosts shall use reasonable commercial efforts to correct any error or defect.
9. No Other Warranties. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 8, THE SOFTWARE IS PROVIDED BY THE COMPANY “AS IS,” WITHOUT WARRANTY OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR ANY WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTION, OR THAT THE SOFTWARE WILL MEET THE VENDOR’S REQUIREMENTS, AND ANY WARRANTIES IMPLIED BY LAW, BY THE COURSE OF DEALING BETWEEN THE PARTIES, OR OTHERWISE, ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
10. Accessibility/Performance of Software. Silverback Hosts shall use commercially reasonable efforts to make the Software available on a 24x7 basis (twenty-four hours per day, seven days per week) during the Term, except for (i) scheduled system back-up or other on-going maintenance as required and scheduled in advance by Silverback Hosts; or (ii) for any unforeseen cause beyond Silverback Hosts’ reasonable control, including but not limited to Internet service Silverback Hosts or communications network failures, denial of service attacks or similar attacks, or any force major events set forth in this Agreement. Silverback Hosts will monitor performance indicators on the systems and network infrastructure (its own and that of third-party suppliers) in order to gauge the overall performance of the Software, and will take reasonable steps to address systems and network infrastructure as required to maintain satisfactory performance of the Software. Silverback Hosts further reserves the right to monitor and reasonably restrict Vendor’s ability to use the Software if Silverback Hosts is using excessive computing resources which are impacting the performance of the Services for other vendors. Silverback Hosts agrees to notify Vendor in cases where it restricts such use and use good faith efforts to determine an appropriate alternative or work around solution.
11. Default. Vendor shall be in default of this Agreement if Vendor fails to cure said default within five (5) days after receipt of written notice thereof from Silverback Hosts.
12. Limitation of Remedy and Liability. Vendor represents that Vendor accepts sole and complete responsibility for: (a) the selection of the Software to achieve Vendor’s intended results; (b) use of the Software; (c) the results obtained from Software; and (d) the terms of any contracts between Vendor and any third party. Silverback Hosts does not warrant that the Vendor’s use of the Software will be uninterrupted or error-free. Vendor shall not assert any claims against Silverback Hosts based upon theories of negligence, gross negligence, strict liability, fraud, or misrepresentation, and Vendor shall defend Silverback Hosts from any demand or claim, and indemnify and hold Silverback Hosts harmless from any and all losses, costs, expenses, or damages, including reasonable attorneys’ fees, directly or indirectly resulting from Vendor’s use of the Software, a third party’s use of the Software, and/or any agreement between the Vendor and a third party based on or in any way related to the Software.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SILVERBACK HOSTS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, WHETHER BASED UPON CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SILVERBACK HOSTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. Non-Circumvention. Vendor hereby agrees for itself, its members, parents, subsidiaries, agents, associates, employees, representatives, directors, officers, partners, attorneys, predecessors, successors, assigns, and all other persons acting by, through, under or in concert with it (“Vendor Affiliated Parties”) that during the Term, they will not, directly or indirectly, contact, deal with or otherwise become involved with any entity or other entities or parties introduced, directly or indirectly, by or through Silverback Hosts or Silverback Hosts Affiliated Parties, for the purpose of by-passing, competing, avoiding, circumventing, or an attempt to circumvent Silverback Hosts’ interest in and to the Software.
14. Confidentiality Obligations. For purposes of this Agreement, “Confidential Information” means all confidential and proprietary information of a Party, including, but not limited to: (i) financial information; (ii) business and marketing plans; (iii) the names of employees and each Party’s respective Affiliated Parties; (iv) the names and other personally-identifiable information of users of the Software; (v) security codes; and (vi) all documentation provided by Silverback Hosts.
During the Term and at all times thereafter, neither Party or its respective Affiliated Parties shall disclose Confidential Information of the other Party or use such Confidential Information for any purpose other than in furtherance of this Agreement. Without limiting the preceding sentence, each Party shall use at least the same degree of care in safeguarding the other Party’s Confidential Information as it uses to safeguard its own Confidential Information. Notwithstanding the foregoing a Party may disclose Confidential Information (i) if required to do by legal process (i.e., by a subpoena), provided that such Party shall notify the other Party prior to such disclosure so that such other Party may attempt to prevent such disclosure or seek a protective order; or (ii) to any applicable governmental authority as required in the operation of such Party’s business.
15. Indemnification. Vendor shall indemnify Silverback Hosts, its members, parents, subsidiaries, agents, associates, employees, representatives, directors, officers, partners, attorneys, predecessors, successors, assigns, and all other persons acting by, through, under or in concert with it (“Silverback Hosts Related Parties”) for third-party claims arising out of (i) Vendor’s breach of the Agreement; (ii) Vendor’s failure to comply with applicable law pursuant to Section 5 of this Agreement; (iii) an allegation that Vendor’s use of the Software infringes or misappropriates the intellectual property rights of a third party; (iv) any claim for federal taxes and/or state sales, use, hotel occupancy, or any other similar tax obligations (including any penalties, interest or other additions to tax) arising from the sale and subsequent redemption of a Vendor Offer; and (v) an allegation that Silverback Hosts is directly or indirectly responsible for or participates in Vendor’s activities solely by reason of Vendor’s or Vendor’s Affiliated Parties use or exploitation of the Software.
16. Assignment. Vendor shall not assign or transfer any of Vendor’s rights or obligations pursuant to this Agreement to any third party, and any purported assignment or transfer by Vendor in contravention of the foregoing shall be null and void. Silverback Hosts shall have the right to assign this Agreement in conjunction with an assignment of the Software.
17. No Joint Venture or Agency. Nothing herein contained shall be construed to have the effect of placing the Parties hereto in the
relationship of partners or joint ventures, or create any agency, or any other relationship other than that of Silverback Hosts and Vendor.
19. Force Majeure. Silverback Hosts will not be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond Silverback Hosts' reasonable control, including, but not limited to fire, flood, store, act of God, war, malicious damage, failure of a utility services or transport or telecommunications network.
20. Enforcement. Any provisions of this Agreement that are unenforceable in any jurisdiction in which this Agreement is sought to be enforced, or are invalid or contrary to the law of such jurisdiction, or the inclusion of which would affect the validity, legality or enforcement of this Agreement, shall be of no effect, and in such case all remaining terms and provisions of this Agreement shall subsist and be fully effective according to the tenor of this Agreement as though no such invalid portion had ever been included herein. It is the intent of the Parties to create a valid license to the Software, and all provisions of this Agreement should be read to give this intent legal force and effect. In any action or proceeding brought by a Party to enforce any rights under, or pursuant to, this Agreement, the prevailing Party shall be entitled to recover all reasonable costs and expenses incurred in connection therewith, including all reasonable legal fees and disbursements.
21. No Beneficiaries. This Agreement is for the sole benefit of the Parties and, except as otherwise contemplated herein, nothing herein expressed or implied will give or be construed to give any person, other than the Parties, any legal or equitable rights hereunder.
22. Governing Law and Dispute Resolution. This Agreement shall be governed in accordance with the laws of the State of Nevada. Any action or proceeding of whatsoever kind or nature with respect to, or arising out of, this Agreement will, if brought by either Party, be instituted and tried only by the courts located in Clark County, Nevada, and both Parties waive any right to cause such action or proceeding to be instituted or tried elsewhere. In the event of a dispute arises, the prevailing Party shall be entitled to receive its costs and reasonable attorneys' fees, through and including all appeals, from the non-prevailing Party.
23. Equitable Relief. Silverback Hosts and Vendor acknowledge that their performance and obligations hereunder are unique, of extraordinary value, and that a material breach by either such Party of any material obligation hereunder will cause the other such Party irreparable damage which cannot be compensated with money only. Therefore, each such Party agrees that the other such Party, as a matter of right, shall be entitled to an injunction or other equitable relief without the requirement of a bond, in addition to all other rights at law to prevent the material breach of any material terms or conditions hereof, and to enforce any rights of the Party seeking equitable relief hereunder.
24. Survival. Neither the expiration nor termination of this Agreement, nor Vendor’s suspension or cancellation of any Vendor Offer shall in any way affect the rights of any purchaser of a valid Vendor Offer, or modify or eliminate Vendor’s obligation to redeem any purchased Vendor Offer pursuant to its terms. Any term or section of this Agreement that are logically intended and required to survive expiration or termination of this Agreement to achieve their intent, shall survive without limitation.
25. Miscellaneous. Section headings and descriptive titles appearing herein are inserted for convenience only and shall not be used in the interpretation or construction hereof.