Last Updated October1st, 2017
This License Agreement is made between the “Licensee” that uses the software in their operations and HZ Global LLC, an Illinois Corporation (the “Licensor”).
(a) “Software” means the web applications and computer programs built by Licensor. This includes but is not limited to Dive Scheduler online scheduling tool.
(b)”Use” means executing or loading the integration code or plugin on to your website or utilizing the standalone portal, purposes.
2. Grant of Rights
Licensor grants to Licensee the nonexclusive worldwide right to use the application for the needs of Licensee to book and schedule dive charters and tours, as well as add on items and other related services.
This Agreement will remain effective for one (1) month increments, and will continue month to month. Either party, however, may prevent a renewal from taking effect by notifying the other party at least 30 days before the end of any period. Upon cancellation the Licensee must ensure all booking fees, merchant fees and customer refunds are paid prior to account being closed.
Licensor shall have the right to immediately terminate this License if Licensee fails to perform any obligation required of Licensee under this License or if Licensee becomes bankrupt or insolvent.
5. Proprietary Rights
This is an agreement for services and Customer is not granted any license hereunder. All software embedded in the Services (the “Software”), and the Services, are and shall remain the sole and exclusive property of Licensor. Accordingly, Customer acknowledges that Licensor owns all right, title and interest in and to the Software and the Services, including, without limitation, all United States and international patent rights, copyrights, trademark rights, trade secret rights, and all other proprietary rights pertaining thereto. Except as expressly granted in this Agreement, Customer will not have or acquire any rights or interest in or to the Software or the Services. Customer acknowledges that the Software contains proprietary information and trade secrets of Licensor. Customer will not take any actions inconsistent with Licensor’s ownership of each of Licensor’s rights in and to the Software. Customer agrees that Customer will not directly or indirectly: (i) assign, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software, or make the Software available to third parties except as authorized by this Agreement; (ii) modify, translate, reverse engineer, decompile or disassemble the Software for any purpose, including without limitation, the creation of derivative works or similar products; (iii) upload, link to or post any portion of the Software on a bulletin board, intranet, extranet or web site; (iv) use or distribute the Software in violation of any applicable laws, regulations or export restrictions; or (v) possess or use the Software in any format other than machine-readable format. All rights in the Software not explicitly granted herein, are reserved by Licensor. If you are using the Services in any country within the European Union, the prohibitions set forth herein will not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.
6. No Tampering
The online booking tool contains a “Powered by DiveScheduler.com” link to Dive Scheduler’s Site. Customer agrees that it will not remove, disable or attempt to remove or disable either link. Further, each such email message may contain an automatic identifying footer such as “Powered by Dive Scheduler.” Customer agrees that it will not remove, disable or attempt to remove or disable such footer.
7. Modification and Enhancements
Licensee will make no efforts to reverse engineer the Software, or make any modifications or enhancements without Licensor’s express written consent.
The software is provided “as is.” Representations, Warranties and Covenants. Customer represents, warrants and covenants to Licensor that: (i) if an individual, Customer is at least eighteen (18) years old; (ii) if an entity, it is a company duly organized and validly existing in good standing under the laws of the state in which it was organized; (iii) it has full power and authority to enter into this Agreement, which, upon its execution hereof, will constitute a legal, valid and binding obligation enforceable against it in accordance with the terms hereof; (iv) all information provided by it in the Service Order and otherwise during the term of this Agreement, is and will be truthful and accurate; (v) its use of the Services will at all times be in accordance with the terms and conditions of this Agreement, the Policies and all applicable laws, rules and regulations; and (vi) it is not directly or indirectly (as an owner, strategic partner or otherwise) engaged in any business relationship or activity that competes with the Services.
Licensee will treat the Software as trade secrets and proprietary know-how belonging to Licensor that is being made available to Licensee in confidence. Licensee agrees to treat the Software with at least the same care as it treats its own confidential or proprietary information.
10. Users Information
Dive Scheduler collects certain personal and business-related information about its users in order to provide the Services (the “User Information”). If a user has provided their contact information, Licensor may contact the users to send reminders, for marketing or quality control purposes by various means, including but not limited to regular mail, email or telephone. When a user activates a Dive Scheduler account or uses the Dive Scheduler service, the user gives express consent to receive marketing communications via direct mail, email (at the email address provided when activating the account), telephone (at the number provided when activating the account), pre-recorded messages (at the number provided when activating the account), text messages (if provided a wireless telephone number), instant messages or other communications methods.
11. Dispute Resolution
The parties will attempt to resolve any dispute arising under this Agreement through the informal means described in this section. Each party will appoint a senior management representative to negotiate the resolution of the dispute. The representatives will provide to each other all non-privileged information with respect to the dispute that the parties believe to be appropriate and relevant. The representatives will negotiate in good faith to resolve the dispute without the need for any formal proceeding. Formal proceedings for the resolution of the dispute may not be commenced until the earlier of (i) the designated representatives mutually conclude that resolution through negotiation does not appear likely; or (ii) thirty (30) calendar days have passed since the initial request to negotiate the dispute was made; provided, however, that a party may file for formal proceedings earlier solely to avoid the expiration of any applicable limitations period, to preserve a superior position with respect to other creditors, or to apply for interim or equitable relief.
13. Attorney Fees
If any legal action is necessary to enforce this License, the prevailing party shall be entitled to reasonable attorney fees, costs and expenses in addition to any other relief to which it may be entitled.
14. Professional Services
In addition to the Services, Customer may purchase certain Professional Services. These services may be customized pursuant to a mutually agreed upon written statement of work, provided to Customer upon the earlier of its request or its selection of desired Professional Services and acceptance of this Agreement (each, a “Statement of Work”). The Professional Services are provided by Licensor and are separate and distinct from the Services and are not required for Customer’s use or enjoyment of the Services. In the event of any conflict between the terms and conditions of this Agreement and a Statement of Work, the terms and conditions of this Agreement shall govern, unless the parties expressly specify otherwise in such Statement of Work. Any Statement of Work may be modified or amended with the written consent of each of Licensor and Customer.
15. Fees and Payment
(a)In consideration for the Services to be provided by Licensor, Customer agrees to allow Licensor to add a Booking fee for each (the “Booking Fees”). Paid Booking Fees are non-refundable. The Licensee will receive the amount for the lessee product and services minus the credit card fees as dictated by the credit card merchant. Currently we are using Stripe Global for credit card merchant and processing. The countries that the business can have a bank account is listed at https://stripe.com/global. For countries not included in the list, you may need to have a bank account or business entity at one of the supported countries at the Customer’s expense.
(b)In consideration for the Professional Services to be provided by Licensor, if any, Customer agrees to pay the fees set forth in the Statement of Work or as otherwise provided to Customer by Licensor, Payments for Fees and reimbursements for expenses, if any, will be billed monthly and will be due immediately upon receipt of invoice, or may be pre-paid in advance. Any payment not received by Licensor by the due date may be subject, at Licensor’s sole discretion, to a late fee equal to 1.5% (or the maximum rate permitted by law) of the amount then due, for each month overdue. In the event Customer fails to make timely payments when due, Licensor may, at its election, discontinue, terminate or suspend the Services and delete all Customers’ Recipient Data (as defined below) from its systems, in each case, without incurring any liability to Customer. Despite any such discontinuation or suspension, Customer acknowledges and agrees that it will be required to pay the Subscription Fees for the remainder of the term of this agreement. For amounts outstanding after sixty (60) days from its receipt of the invoice therefore, Customer shall be responsible for and agrees to pay reasonable costs and expenses of collection, including, but not limited to court and attorneys’ fees and expenses. From time to time, and at any time Licensor may require reasonable credit guarantees before continuing its provision of the Services or the Professional Services hereunder.
16. Limitation of Liability
In no event will dive scheduler or any representative be liable to customer or any other party for any special, indirect, incidental, exemplary, consequential or punitive damages arising from or related to the services (or the professional services, if applicable), or to the performance of this agreement, including but not limited to, damages for loss of data, loss of use, or loss of profits, even if dive scheduler or its representatives have been advised in advance of the possibility of such loss or damages. Further, in no event will Licensor and the representatives’ total cumulative liability to customer or any other party for claims, losses, or damages of any kind, whether based on contract, tort, negligence, indemnity or otherwise, arising out of or related in any way to this agreement or the services, exceed the actual fees customer paid to dive scheduler for the services as of the date of the claim, loss, or damage. In the event of any failure, or Licensor non-provision, of the Services (or the Professional Services), Customer’s sole and exclusive remedy shall be for Licensor to use commercially reasonable efforts to repair or provide the services.
This Agreement does not create a partnership, joint venture or agency relationship between Licensor and Customer. Customer does not have any right, power, or authority to act as a legal representative of Licensor.
Customer agrees to indemnify, defend and hold harmless Licensor, the Representatives, and its and their respective affiliates, officers, directors, stockholders, employees, consultants, representatives and agents from any and all claims, liability, damages and/or costs (including, but not limited to, reasonable attorneys’ fees) arising from Customer’s negligence or intentional misconduct, Customer’s violation of any applicable law, including the federal CAN SPAM Act, 15 U.S.C. 7701-7713, this Agreement or the Policies, Customer’s breach of any of its representations, warranties or covenants set forth herein, or Customer’s infringement of any intellectual property rights or other rights of any person or entity.
19. Sales Tax
Licensee is responsible for all sales tax. If the Licensee is required to collect and pay sales tax the Licensee must notify the Licensor. Dive Schduler has the ability to collect sales tax on the charters, add on items and rental gear per the discretion of the Licensee.
20. General Provisions
(a) Complete Agreement: This License together with all schedules or other attachments, which are incorporated herein by reference, is the sole and entire Agreement between the parties. This Agreement supersedes all prior understandings, agreements and documentation relating to such subject matter.
(b) Modifications to License: Modifications and amendments to this License, including any exhibit or appendix hereto, shall be enforceable only if they are in writing and are signed by authorized representatives of both parties.
(c) Applicable law: This License will be governed by the laws of the county of McHenry in the State of Illinois, United States of America.
(d) Notices: All notices and other communications given in connection with this License shall be in writing and shall be deemed given as follows:
- When delivered personally to the recipient’s address as appearing in the introductory paragraph to this License;
- Three days after being deposited in the United States mails, postage prepaid to the recipient’s address as appearing in the introductory paragraph to this License; or
- When sent by fax or telex to the last fax or telex number of the recipient known to the party giving notice. Notice is effective upon receipt provided that a duplicate copy of the notice is promptly given by first-class or certified mail, or the recipient delivers a written confirmation of receipt.
Any party may change its address appearing in the introductory paragraph to this License by giving notice of the change in accordance with this paragraph.
(e) No Agency: Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties.
(f) Assignment: The rights conferred by this License shall not be assignable by the Licensee without Licensor’s prior written consent. Licensor may impose a reasonable license fee on any such assignment.
(g) Amendment: This Agreement may not be amended except in a written document signed by both parties. If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement shall be interpreted so as best to effect the intent of the parties. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Illinois. This Agreement expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior representations and understandings.