This TRES SOFTWARE Licence Agreement (“Agreement”) is by and between Tres Technologies LLC(“TRES”) and the “LICENCEE”.
As used in this Agreement: “LICENCEE” means the person or other legal entity that is to use this SOFTWARE.
“AGENCY” means the business conducted by LICENCEE under the name and at the location that is registered with TRES.
“INITIAL TERM” for a LICENCEE transferring from a Travelport Agreement is 1st September to 30th September 2022.
“LICENCE” means the licence to use the SOFTWARE granted by TRES to LICENCEE hereunder.
“LICENCE FEE” means, during the INTIAL TERM, the periodic payment separately agreed to be paid by LICENCEE to TRES for the use of the SOFTWARE in accordance with this LICENCE. After the INITIAL TERM, LICENCE FEE shall mean the amount established from time to time by TRES. TRES shall not increase the LICENCE FEE during the INITIAL TERM. No increase in such rate shall be effective unless TRES shall have provided LICENCEE with no less than twenty (20) days’ notice. LICENCEE acknowledges that TRES may, at its discretion, offer individual licensees rates that are lower than that which it determines to charge to its licencees generally, and such lower rates will not affect the rates charged to LICENCEE.
” SOFTWARE” means that certain travel agency management computer information processing program consisting of a series of instruction or statements in machine readable form to which this agreement is appended, and includes all enhancements, amendments, supplements, modifications, editions, derivations to such program, whether or not encompassed within a separately functioning program.
1. LICENCE. TRES does hereby grant to LICENCEE a non-exclusive, non-transferable licence or sub licence to use the SOFTWARE (herein referred to as ” SOFTWARE”) in connection with its travel agency business conducted at the AGENCY.
2. TERM OF LICENCE. The term of the LICENCE shall be for the INITIALTERM and the LICENCEE shall have the right to continue using the SOFTWARE for subsequent periods by continued payment of the LICENCEE FEE. If such monthly licence fee is not delivered to TRES prior to the twentieth (20th) day of any month during the term of the LICENCE, TRES shall be under no obligation to extend the term of the LICENCE for any succeeding months.
Upon the termination of LICENCE: LICENCEE shall cease using the SOFTWARE. LICENCEE agrees to within 5 days erase any local copies of the Tres programs and destroy or erase any disk or other media copies of the programs. LICENCEE agrees that upon termination any access to hosted system or data by LICENCEE will be terminated. Prior to termination LICENCEE has the right to copy, export or otherwise duplicate their data housed in Tres technologies. Once terminated, LICENCEE has no access to the SOFTWARE nor their previously entered data into such system.
3. TERMINATION OF LICENCE. The LICENCE can be terminated by the LICENCEE by providing Tres 30 days notice. The LICENCEE and will responsible for payment of Licence Fees for the full month that the SOFTWARE is in use, TRES may, at its discretion, and upon not less than ninety (90) days prior written notice, terminate the LICENCE.
4.USE OF SOFTWARE. LICENCEE shall use the SOFTWARE only in connection with the LICENCEE’s business conducted at the AGENCY, and for no other purpose. Without limiting the generality of the preceding sentence, LICENCEE shall not do any of the following without TRES’ prior written consent (which consent, if granted by TRES, shall not limit or in any way alter the copyright or trade secret rights of TRES):
A. Make any copies of the SOFTWARE other than for the purpose of loading the program onto LICENCEE’S hardware system:
B. Allow any other person or entity to use the SOFTWARE, other than LICENCEE’s employees and agents in connection with their work at the AGENCY; or
C. In any way violate any of TRES, rights with respect to the SOFTWARE, including without limitation any copyright, trademark or other proprietary rights.
D. Alter, modify or in any way vary the SOFTWARE.
5. HARDWARE. LICENCEE shall at all times during the term of the licence provide and maintain in good working order such hardware equipment as may be specified by TRES from time to time and is necessary for the usage of the SOFTWARE.
LICENCEE shall be responsible for operation of its hardware equipment,and agrees to maintain such equipment in good working order at all times while using the SOFTWARE. In no event shall the failure of hardware equipment, or any other event which prevents LICENCEE’s use of the SOFTWARE, extend the term of the LICENCE.
6. LICENCE FEE. As consideration for the grant of the Licence, and as a condition to LICENCEE’s exercise thereof, LICENCEE shall pay to TRES the LICENCE FEE. For each month after the INITIAL TERM of the LICENCE, the LICENCE FEE shall equal an amount determined from time to time by TRES to be the rate charged. No increase in such rate shall be effective unless TRES shall have provided LICENCEE with no less than twenty (20) days’ notice. LICENCEE acknowledges that TRES may, at its discretion, offer individual licencees rates that are lower than that which it determines to charge to its licencees generally, and such lower rates will not affect the rates charged to LICENCEE. LICENCE FEES are fully earned by TRES upon receipt, all payments are final and TRES shall under no circumstances be obligated to refund any LICENCE FEE received by TRES.
7. LIMITATION OF TRES’ LIABILITY. LICENCEE acknowledges that it has had the opportunity to inspect the SOFTWARE, determine whether the SOFTWARE is proper for use or application to the AGENCY and to LICENCEE’S business and that it is familiar with the capability of the SOFTWARE. TRES makes no representation or warranty concerning the appropriateness of the SOFTWARE for the AGENCY or concerning its use for the business of the LICENCEE.
In no event shall TRES be held responsible for any cost, loss or damage arising from or related to LICENCEE’s use of the SOFTWARE. LICENCEE hereby assumes full responsibility for the use of the SOFTWARE and for the results of its use. Under no circumstances shall LICENCEE attempt to hold TRES responsible for any cost, losses or damages that may result from the loss of or damage to any business records, files or computer memory as a result of the SOFTWARE or the method by which TRES updates its system.
From time to time enhancements or updates may be made available to LICENCEE from TRES. LICENCEE hereby agrees to make use of any and all new enhancements provided to LICENCEE by TRES at no additional cost or expense, installing the new release to any and all existing versions of the program. Installation shall be within a reasonable time of receipt and in no case later than one month after LICENCEE receives the latest update. LICENCEE hereby acknowledges that support may not continue to be made available for prior releases of the program.
LICENCEE shall implement a plan of computer data protection, such as data back-up and proper handling of data storage devices. LICENCEE shall be solely responsible for the proper protection of its record, files and data from equipment malfunction, operator error and other hazards associated with the use of computers. TRES shall not be responsible or liable for lost data, records, systems or SOFTWARE from any cause whatsoever, including, but not limited to any malfunction of the SOFTWARE or any device used by TRES in interfacing with LICENCEE’S system, or from operator error. LICENCEE’S sole recourse in the event of a malfunction of or defect in the SOFTWARE or in any device used by TRES to interface or to store or transmit the SOFTWARE, is a replacement of the SOFTWARE.
IN NO EVENT SHALL TRES BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR THE USE, DOCUMENTATION, OR PERFORMANCE OF THE SOFTWARE LICENCED HEREUNDER.
THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANT ABILITY, OR OF FITNESS FOR PURPOSE. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE EXPRESS PROVISIONS OF THIS AGREEMENT.
8. ASSIGNMENT. (a) LICENCEE shall not assign this Agreement or any of LICENCEE’s interest rights or obligations under the Agreement, without the prior written consent of TRES.
(b) TRES may at any time assign this Agreement or TRES’ interest, rights or obligations under this Agreement without the consent of LICENCEE.
9. LEGAL FEES. In any action brought by either party to enforce any of such party’s rights or remedies under this Agreement, the prevailing party shall be entitled to all reasonable legal fees and all costs, expenses and disbursements in connection with such action.
10. CORPORATE AUTHORITY. Each individual using the SOFTWARE represents and warrants that he or she is duly authorized to do so and to bind LICENCEE to the terms of this Agreement and that this Agreement is binding upon such corporation in accordance with its terms.
11. ENTIRE AGREEMENT. The Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous agreements and understandings. TRES makes no representation or warranty concerning the SOFTWARE other than those expressly stated in this Agreement.
12. GOVERNING LAW. This Agreement shall be governed by, interpreted under and construed and enforced in accordance with the laws of Australia.
13. JOINT AND SEVERAL LIABILITY. All persons, firms and entities identified by the designation “LICENCEE” in this Agreement shall be jointly and severally liable for the faithful performance of each of the obligations and covenants of LICENCEE set forth in this Agreement.
14. SUCCESSORS AND ASSIGNS. The covenants and agreements of this Agreement shall inure to the benefit of and shall be binding upon, each of the parties and their respective successors and assign.
15. WAIVER. The failure of either party at any time to seek redress for any violation of this Agreement or any applicable law or regulation or to insist upon the strict performance of any term or condition shall not prevent any subsequent act or omission of the same or similar nature which would have originally constituted a breach or default of this Agreement from having all the force and effect of an original breach or default, and such subsequent act or omission may be proceeded against to the fullest extent provided by this Agreement. No provision of this Agreement shall be deemed to have been waived by a party unless the waiver is in writing and signed by such party.
16. NOTICE. All notices, requests elections, and payments required or permitted under this Agreement shall be effective upon receipt by the party to whom it is directed, provided, however all notices, request, elections and payments shall be deemed effective four (4) business days after being sent certified or registered mail, return receipt requested, if addressed to LICENCEE at the address registered by LICENCEE with TRES or if addressed to TRES at: TRES Technologies LLC, 7 L Blackwater Canyon Road, Rolling Hills, CA 90274. The parties may from time to time change their respective addresses (or persons to whom copies should be sent or such persons, addresses) by notice to the other party given in accordance with this Section.
17. USER LIST. LICENCEE grants approval for TRES to include agency name and general information as part of the TRES users list. Such user list is and shall be the sole and exclusive property of TRES and can be used by TRES. LICENCEE consents to the distribution of the user list and the information contained thereon by TRES. LICENCEE is under no obligation to respond nor reply to any user list inquiries.
18. TITLE. Title in and ownership of the SOFTWARE shall remain at all times with TRES or with TRES’ LICENCER. TRES warrants that it has the right to licence the SOFTWARE for LICENCEE’s use in accordance with this agreement.
19. SUPPORT SERVICES. TRES will provide such training and SOFTWARE support services as TRES may determine from time to time to be reasonably necessary for Licencee to properly use the SOFTWARE. TRES shall in no event be responsible to provide SOFTWARE support services in excess of an amount reasonable determined by Tres to be necessary, nor will TRES be responsible for providing hardware support services or services related to the use of any other Tres SOFTWARE. In the event that LICENCEE requests that TRES provide SOFTWARE support services in excess of that which is determined by TRES to be reasonably required for the use of the SOFTWARE by more than one competent person, or in the event that LICENCEE requests support services relating to hardware or other Tres SOFTWARE, TRES reserves the right to require LICENCEE pay TRES normal hourly rates for support services, as determined from time to time by TRES.