UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date
of Report (Date of Earliest Event Reported): May 20, 2021
Monaker
Group, Inc.
(Exact
name of Registrant as specified in its charter)
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Nevada
(State
or other jurisdiction of incorporation)
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001-38402
(Commission
File Number)
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26-3509845
(IRS
Employer Identification No.)
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1560
Sawgrass Corporate Parkway, Suite 130, Sunrise, Florida
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33323
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code: (954) 888-9779
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions (see General Instruction A.2. below):
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☐
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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☐
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities
registered pursuant to Section 12(b) of the Act:
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Title
of each class
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Trading
Symbol(s)
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Name
of each exchange on which registered
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Common
Stock,
$.0001
Par Value Per Share
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MKGI
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The
NASDAQ Stock Market LLC
(Nasdaq
Capital Market)
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Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive
Agreement.
As disclosed in greater
detail in the Current Report
on Form 8-K filed by Monaker Group, Inc. (the “Company”, “we”, “us”,
and “Monaker”) with the Securities and Exchange Commission (the “SEC”) on July 23, 2020,
the Company entered into a Share Exchange Agreement (as amended by the first amendment thereto dated October 28, 2020, as disclosed
in the Current Report on Form-8-K filed
with the SEC on October 29, 2020, the second amendment thereto dated November 12, 2020, as disclosed in the Current
Report on Form 8-K filed with the SEC on November 18, 2020, the third amendment thereto dated January 6, 2021, as disclosed
in the Current Report on Form
8-K filed with the SEC on January 11, 2021, and the fourth amendment thereto dated February 22, 2021, as disclosed in
the Current Report on Form
8-K filed with the SEC on February 26, 2021, the “HotPlay Exchange Agreement” and the transactions
contemplated therein, the “HotPlay Share Exchange”) with HotPlay Enterprise Limited (“HotPlay”)
and the stockholders of HotPlay (the “HotPlay Stockholders”)). The transactions contemplated by the HotPlay
Exchange Agreement remain subject to certain closing conditions, including, the approval of the listing of the combined company’s
common stock on the NASDAQ Capital Market following the closing.
In advance of the closing
of the HotPlay Share Exchange, on May 20, 2021, the Company entered into a Master Development Agreement with HotPlay (the “Development
Agreement”), pursuant to which the Company engaged HotPlay to develop a series of casual games, integrated with HotPlay’s
in-game advertising, to be used by the Company in its planned game publishing platform. The Company made a payment of $900,000
to HotPlay as a retainer in connection with the entry into the Development Agreement, and agreed that the services provided by
HotPlay under the Development Agreement would be billed at $4,500 per 160 man hours per month. The Development Agreement has a
term of two years, subject to early termination rights in the event of a breach of the agreement by the non-breaching party.
Also on May 20, 2021,
the Company and HotPlay entered into an amendment to a prior Master Development and Licensing Agreement entered into between the
parties on March 17, 2021 (the “March 2021 Development Agreement”), which provided for the Company’s license
of the “HotNow Platform” from HotPlay, and the engagement of HotPlay to develop a travel app, and provided for
a $400,000 license fee and a $100,000 retainer fee, which were paid to HotPlay. The March 2021 Development Agreement required the
Company to make an additional $600,000 upfront development payment under the agreement, which payment was subsequently made. The
Company agreed that the services provided by HotPlay under the March 2021 Development Agreement would be billed at $4,500 per 160
man hours per month. The March 2021 Development Agreement has a term of two years, subject to early termination rights in the event
of a breach of the agreement by the non-breaching party.
The description of
the Development Agreement, March 2021 Development Agreement and amendment to the March 2021 Development Agreement above is qualified
in its entirety by the full text of the Development Agreement, March 2021 Development Agreement and amendment to the March 2021
Development Agreement, copies of which are filed herewith as Exhibits 10.3, 10.1 and 10.2, respectively, and
are incorporated herein by reference.
Item 9.01. Financial Statements and
Exhibits.
(d) Exhibits.
The following exhibits
are filed with this Current Report on Form 8-K:
* Filed herewith.
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
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MONAKER GROUP, INC.
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Date: June 11, 2021
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By:
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/s/ William Kerby
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Name:
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William Kerby
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Title:
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Chief Executive Officer
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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:
The
following terms shall have
the following meanings herein:
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1.1
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“Completion
Date” shall
mean
the date of completion for each Milestone as specified in the applicable SOW.
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1.2
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“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.
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1.3
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“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.
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1.4
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“Deliverables”
shall mean the items to be delivered by HPE to MKGI as set forth in the applicable
SOW.
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1.5
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“Development
Task” shall mean the reproduction and development of the Asset to be performed
by HPE pursuant to this Agreement and each applicable SOW.
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1.6
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“Payment”
shall mean the payment of the fee as specified in each applicable SOW.
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1.7
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“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.
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1.8
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“Milestone”
shall mean each development milestone identified in the applicable sow.
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1.9
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“Source
Materials” shall mean any code, audi o,
visual,
graphic or textual material produced by HPE for performance of this Agreement.
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1.10
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“Specifications”
shall mean the technical and other specifications for the Deliverables as set forth
in the applicable SOW.
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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.
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3.1
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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.
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3.2
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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.
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3.3
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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
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Changes.
The Parties may ,
upon
mutual written agreement ,
consent
to change the Completion Date for a Deliverable and the corresponding Specifications.
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3.5
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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.
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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.
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5.
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REPRESENTATIONS,
WARRANTIES AND INDEMNITIES
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5.1
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HPE
represents and warrants on a continuing basis that:
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(a)
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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.
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(b)
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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.
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(c)
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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.
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(d)
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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)
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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.
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5.2
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MK.GI
represents and warrants on a continuing basis that:
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(a)
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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.
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(b)
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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.
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(a)
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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)
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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.
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6.2
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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.
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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.
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6.3
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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.
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6.4
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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.
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7.1
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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.
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7.2
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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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8.1
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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.
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Either
Party, upon giving written notice to the other Party, may terminate this Agreement:
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(i)
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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
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(ii)
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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.
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8.3
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Consequences
of Termination.
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(a)
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Termination
of this Agreement shall not preclude resort by the terminating Party to any other remedies
available to it.
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(b)
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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)
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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.
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8.4
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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.
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9.1
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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.
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9.2
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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.
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9.3
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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.
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9.4
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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.
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9.5
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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
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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.
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9.7
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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.
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9.8
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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.
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9.9
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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.
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9.10
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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..
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9.11
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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.
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9.12
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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
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Attachment(s).
The Attachment(s) to this Agreement shall form an integral part thereof.
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IN WITNESS WHEREOF,
the Parties have signed and delivered this Master Development and Licensing Agreement
as of the Effective Date written above.
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HotPlay
Enterprise Limited
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Monaker
Group
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Nithinan
Boonyawattanapisut
(Authorized Director)
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William
Kerby - CEO
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Athid
Nanthawaroon
(Authorized Director)
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Monaker Group, Inc. 8-K
Exhibit
10.2
Contract
#HPEMKGI202105002
MASTER
DEVELOPMENT AGREEMENT
This
Master Development Agreement (the “Agreement”) is made and entered into on May 20, 2021, 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 1560 Sawgrass Corporate Parkway,
Suite 130, Sunrise, Florida 33323 (“MKGI”). HPE and MKGI shall collectively be referred to as the “Parties”
and individually as a “Party”.
WITNESSETH:
WHEREAS,
MKGI is engaged in the business of developing Travel platform, Game Publishing platform and solutions;
WHEREAS,
HPE owns HotPlay’s IGA, a patent-pending adtech which enables advertisers to insert commercial content into native content
of video games, and is engaged in the business of producing computer software platform and game development; and
WHEREAS,
MKGI wishes to have HPE develop a series of casual games that are integrated with HotPlay’s IGA to be put onto MKGI’s
Game Publishing platform, defined by each Statement of Work (“SOW”).
NOW,
THEREFORE, in consideration for the mutual promises contained herein, the Parties agree as follows:
The
following terms shall have the following meanings herein:
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1.1
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“Completion
Date” shall mean the date of completion for each Milestone as specified in
the applicable SOW.
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1.2
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“Assets”
shall mean certain assets of the Game Publishing platform designed by MKGI or any
or its subsidiaries and to be reproduced and/or developed by HPE under the Agreement.
The Assets shall confirm all of the Specifications set forth in each SOW.
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1.3
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“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.
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1.4
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“Deliverables”
shall mean the items to be delivered by HPE to MKGI as set forth in The applicable
SOW.
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1.5
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“Development
Task” shall mean the reproduction and development of the Asset to be performed
by HPE pursuant to this Agreement and each applicable SOW.
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1.6
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“Payment”
shall mean the payment of the fee as specified in each applicable SOW.
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1.7
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“Intellectual
Property Rights” shall mean any and all 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.
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1.8
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“Milestone”
shall mean each development milestone identified in The applicable SOW.
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1.9
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“Source
Materials” shall mean any code, audio, visual, graphic or textual material
produced by HPE for performance of this Agreement.
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1.10
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“Specifications”
shall mean the technical and other specifications for the Deliverables as set forth
in the applicable SOW.
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2.1
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Development.
HPE agrees to provide services as requested by MKGI and deliver to MKGI 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 MKGI such Deliverables including documentation for evaluation by
MKGI.
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2.2
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Acceptance.
Upon delivery by HPE to MKGI of each Deliverable, MKGI shall test and evaluate such Deliverable
for conformity to the applicable Specifications. MKGI will use best efforts to conduct
such evaluation within one (1) business day after delivery of such Deliverable. Notwithstanding
the foregoing, MKGI, 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 MKGI to HPE
within the above period, the Deliverable shall be deemed approved.
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2.3
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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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2.4
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Changes.
The Parties may, upon mutual written agreement, consent to change the Completion Date
for a Deliverable and the corresponding Specifications.
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2.5
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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
Game Publishing Platform Assets to the extent that users of such platform would find
the assets to be similar to the MKGI’s Game Publishing Platform Assets, in likeness
to the design or feeling, without obtaining written consent from MKGI. Any ambiguity
as to whether such assets are similar to that of the Assets under this Section 2.5 shall
be settled by negotiations between the Parties.
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The
Assets reproduced or developed by HPE for MKGI 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 MKGI as set forth in the SOW, HPE
hereby assigns to MKGI all Intellectual Property Rights obtained by HPE in relation to the Assets and all other material reproduced
and developed by HPE for MKGI under this Agreement including, without limitation, all Source Material, storyboards, drawings,
renderings, files and documents related to all of the UX/UI Graphic.
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4.
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REPRESENTATIONS,
WARRANTIES AND INDEMNITIES
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4.1
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HPE
represents and warrants on a continuing basis that:
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(a)
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Corporate
Authority. HPE has the right to enter into this Agreement and the authority, corporate
and otherwise, to execute and deliver this Agreement and to perform its obligations hereunder.
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(b)
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No
Conflicts. The execution, 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.
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(c)
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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 MKGI will not depend
on the acquisition of rights from any third party.
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(d)
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No
Infringement or Claims. Neither the Assets nor the Deliverables nor the exercise
by MKGI of any of the rights granted hereunder, will infringe any intellectual property
or other right of any third party.
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(e)
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Indemnity.
HPE agrees to defend MKGI or any of MKGI’s sublicensees or any of their direct
or indirect customers from any claim or action alleging that the Assets or any Deliverables,
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 Deliverables, 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 equivalent,
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 MKGI to continue to exercise
all rights granted to MKGI under this Agreement. Notwithstanding any provision herein
to the contrary, HPE shall have no liability or obligation pursuant to this Section 4.1(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 MKGI. In addition, HPE shall defend, indemnify
and hold MKGI harmless from and against any and all damage, liability, cost or expenses
(including without limitation reasonable attorney’s fees and related costs) incurred
by MKGI, 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.
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4.2
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MKGI
represents and warrants on a continuing basis that:
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(a)
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Corporate
Authority. MKGI 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.
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(b)
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No
Conflicts. The execution, delivery and performance by MKGI 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 MKGI, 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 MKGI is a
party or by which any of its property is bound.
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5.1
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Fees.
In consideration of HPE’s production 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.
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5.2
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Retainers.
MKGI shall make an upfront retainer payment of $US900,000 (Nine hundred thousand
United States dollars) to HPE within five (5) days from the execution date of this agreement.
The payment shall be applied to the work described in the applicable SOW.
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5.3
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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.
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5.4
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Taxes. Any
withholding taxes or other charges (including, 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.
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6.1
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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.
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6.2
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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 receiving 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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7.1
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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 date first set forth above 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.
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Either
Party, upon giving written notice to the other Party, may terminate this Agreement:
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(i)
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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
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(ii)
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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.
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7.3
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Consequences
of Termination.
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(a)
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Termination
of this Agreement shall not preclude resort by the terminating Party to any other remedies
available to it.
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(b)
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Upon
expiration or termination of this Agreement, each Party shall return any and all Source
Material, Confidential Information, 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)
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Upon
termination of this Agreement by MKGI, HPE shall refund any fees received from MKGI hereunder
prior to such termination, provided, however, that MKGI shall be entitled to seek recovery
of 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.
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7.4
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Survival.
Notwithstanding anything contrary in this Agreement, the provisions of Sections 2.5,
3, 4, 6, 7 and 8 shall survive termination or expiration of this Agreement.
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8.1
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Governing
Law. This Agreement and all disputes arising out of or in connection with this Agreement,
MKGI will determine whether it wants jurisdiction to be in British Virgin Island or the
United States of America.
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8.2
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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.
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8.3
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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.
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8.4
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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.
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8.5
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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
below, 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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8.6
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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.
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8.7
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Waivers.
No waiver by any Party of any breach or failure to comply with any provision of this
Agreement shall be construed as, or constitute, 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.
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8.8
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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.
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8.9
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Independent.
The Parties are independent, 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.
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8.10
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Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same instrument.
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8.11
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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, rebellion, commotion and explosion.
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IN
WITNESS WHEREOF, the Parties have signed and delivered this Agreement as of the date first written above.
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HotPlay Enterprise Limited
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Monaker Group
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Nithinan Boonyawattanapisut
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William Kerby - CEO
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(Authorized Director)
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Athid Nanthawaroon
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(Authorized Director)
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Monaker Group, Inc. 8-K
Exhibit 10.3
Contract
#HPEMKGI202105001
AMENDMENT TO DEVELOPMENT
AGREEMENT
This amendment (the “Amendment”) is made
on May 20, 2021 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 1560 Sawgrass Corporate Parkway, Suite 130, Sunrise, Florida 33323 (“MKGI”)
to the SOW included in the master development and licensing agreement dated March 17, 2021.
Background
MKGI entered into a master development and licensing agreement
dated March 17, 2021 for the purpose of 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 as provided in Attachment 1 (“SOW”).
DEVELOPMENT
The Parties wish to amend the terms and conditions set forth in
the SOW by adding scope of work relating to the extra features required for MKGI’s travel platform.
IN CONSIDERATION OF the Parties agreeing to amend their
obligations in the SOW, and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties agree to keep, perform, and fulfil the promises, conditions, agreement, and additional fee below.
FEE
MKGI shall make an upfront development
payment of $US600,000 (Six 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 amendment SOW.
IN WITNESS WHEREOF, the Parties have signed and delivered this
Amendment to Development Agreement as of the Effective Date written above.
(Signature Page Follows)
Contract
#HPEMKGI202105001
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HotPlay Enterprise Limited
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Monaker Group
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Nithinan Boonyawattanapisut
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William Kerby - CEO
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(Authorized Director)
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Athid Nanthawaroon
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(Authorized Director)