CAPSTONE DRIVE SOFTWARE LICENSE 

TERMS and CONDITIONS


These Capstone Drive Software License Terms and Conditions (“Terms and Conditions” or “Terms”) are provided by Capstone Hospitality LLC, a Florida limited liability company (“Capstone”), in connection with Capstone’s grant of a license to use Capstone’s Drive Software (the “Licensed Software”) pursuant to an agreement entered into by you (the “Club”) and Capstone (the “Agreement”). The Club’s use of the Licensed Software shall be subject to the Terms and Conditions and Capstone’s Privacy Policy governing the collection and use of personally identifiable information, which can be found at [https://www.capstone-hospitality.com/Privacy_Policy]. The Club agrees to be bound by these Terms as follows:


  1. Definitions.  Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in Exhibit A.


  1. Scope of License.  Subject to and conditioned on the Club’s continuous compliance with the Agreement and these Terms, including payment of Fees, Capstone grants to the Club, its successors and assigns, a non-exclusive, non-transferrable license to use the Licensed Software (the “License”), including, without limitation, all trademarks and copyrights owned or controlled by Capstone directly related to the Licensed Software (the “Licensed IP”).


  1. License Restrictions.  The License does not include any right to sublicense the Licensed IP to any third party, and the Club shall not attempt to sublicense such rights. The Club shall not (nor shall it permit, assist or encourage any third party to) distribute, sell, lease, rent, loan, or otherwise transfer the Licensed Software or any of its rights therein to any third party.  


  1. Modifications and Derivations.  


  1. Any Modifications or Derivations of the Licensed Software or the ideas and claims embodied in the Licensed IP that may be hereafter developed by Capstone, shall be owned exclusively by Capstone, and the Club shall have no rights with respect thereto and no royalties or license fees of any kind shall be payable with respect thereto unless agreed to by a separate writing.  Capstone has no obligation or responsibility to maintain or share any Modifications or Derivations developed by Capstone with the Club.


  1. Any Modifications or Derivations of the Licensed Software, or the ideas and claims embodied in the Licensed IP that may be hereafter developed by the Club, shall be owned exclusively by Capstone and the Club shall have no rights with respect thereto. The Club hereby does and shall assign all of its right and interest in the Club Modifications to Capstone unless otherwise agreed upon in writing.  Notwithstanding the foregoing, the Club shall remain the owner of any Confidential Information it uses in the process of making any Modifications and Derivations, including any Personally Identifiable Information pertaining to its Members.

 

  1. To the extent that the Club uses any subcontractors or third parties to develop Modifications or Derivations, or otherwise provides subcontractors or third parties access to the Licensed IP, then the Club shall require each such subcontractor to enter into a written agreement providing at least as much protection for Capstone’s Intellectual Property Rights in the Licensed IP as under these Terms and Conditions.


  1. Fees. The Club shall pay Capstone a fee (the “License Fee,” and together with all fees provided in the Agreement, the “Fees”) for use of the Licensed Software, which amount may be increased for any additional Authorized Users the Club shall add from time to time. The License Fee shall be based on the total number of Authorized Users as of the first day of each month.


  1. Access.  Capstone shall provide access to the Licensed Software to each Authorized User promptly upon execution of the Agreement. The Club shall provide written notice to Capstone of the name of each Authorized User and of any individuals who are no longer Authorized Users promptly on adding, removing, or replacing any Authorized User.


  1. Term and Termination. 


  1. Term.  These Terms and Conditions shall commence as of the Effective Date and shall terminate in conjunction with the Agreement or as otherwise provided in these Terms and Conditions. 


  1. Effect of Termination. In the event that the Agreement, and these Terms and Conditions therewith, shall terminate:  


  1. the License and all rights and authorizations with respect thereto granted to the Club under the Agreement shall immediately terminate and the Club shall (A) immediately cease all use of and other activities with respect to the Licensed Software and Documentation; and (B) within five (5) days, or at Capstone’s written request destroy, and permanently erase from all devices and systems the Club directly or indirectly controls, the Licensed Software, the Documentation and Capstone’s Confidential Information, including all documents, files, and tangible materials (and any partial and complete copies) containing, reflecting, incorporating, or based on any of the foregoing, whether or not modified or merged into other materials; and


  1. all License Fees payable by the Club to Capstone of any kind under are immediately payable and due no later than five days after the expiration or termination of these Terms and Conditions.


  1. Representations, Warranties and Covenants.


  1. Representations, Warranties and Covenants of Capstone.  Capstone represents and warrants that: (i) Capstone has the power and authority to enter into and to perform the obligations of these Terms and Conditions, and the execution and performance of these Terms and Conditions by Capstone does not, and shall not, violate any agreements, rights or obligations between Capstone and any third party; (ii) Capstone is and shall remain in compliance with all applicable Laws; (iii) Except for any licensed Third-Party Materials that may form a component of the Licensed Software, Capstone exclusively owns and has the right to license all Licensed Software and other materials provided under these Terms and Conditions; and (iv) the grant of the License, together with the Club’s use of the Licensed Software, or any component thereof, does not and shall not infringe upon any Intellectual Property Rights of any third party.


  1. Representations, Warranties and Covenants of the Club.  The Club represents, warrants and covenants that:  (i) the Club has the power and authority to enter into and to perform the obligations of these Terms and Conditions, and the execution and performance of these Terms and Conditions by the Club does not, and shall not, violate any agreements, rights or obligations between the Club and any third party; (ii) the Club is and shall remain in compliance with all applicable Laws; and (iii) the Club shall not use the Licensed Software for any purpose other than the Permitted Use. 


  1. Warranty Disclaimer.  CAPSTONE MAKES NO WARRANTY WITH RESPECT TO THE LICENSED SOFTWARE. THE LICENSED SOFTWARE IS PROVIDED BY CAPSTONE “AS IS.”  CAPSTONE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, CAPSTONE MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE OR DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, SHALL MEET THE CLUB'S OR OTHER PERSONS' REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN THE CLUB AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH THIRD-PARTY MATERIALS.


  1. Confidentiality.


  1. Confidential Information. The parties agree that (i) the Licensed Software, Documentation, pricing, discounts and other terms offered to the Club, including, without limitation, the material terms of these Terms and Conditions, any functional limitations of, or Errors in, the Licensed Software, are the confidential property of Capstone, and (ii) any other confidential business, technical, financial or other information disclosed by one party to the other pursuant to these Terms and Conditions is the confidential information of the disclosing party (collectively, “Confidential Information”). Except as expressly allowed in Section 10(b), each party shall hold in confidence and shall not use or disclose to any third party any Confidential Information of the other party. The restrictions of this Section shall apply for the greater of (i) the Term of these Terms and Conditions and for two years thereafter, (ii) the time period dictated by any applicable law, statute or regulation, or (iii) for any Confidential Information that constitutes a trade secret, as long as such Confidential Information remains a trade secret under applicable law.


  1.  Permitted Disclosure. A party shall not be obligated under Section 10(a) with respect to information that it can document: (i) is or has become readily publicly available without restriction through no fault of such party or its personnel, (ii) is received, without restriction, from a third party lawfully in possession of such information and lawfully empowered to disclose such information, (iii) was rightfully in such party’s possession without restriction prior to its disclosure by the Disclosing Party, (iv) independently developed without use of the Confidential Information, or (v) or as otherwise required by law or regulation.


  1. Ownership of Intellectual Property Rights.  The Club acknowledges and agrees that, except for the license rights set forth in these Terms and Conditions, as between Capstone and the Club, Capstone is and shall be the exclusive owner of the Licensed Software and Documentation, and all Intellectual Property Rights therein, subject only to the rights of third parties to any Third-Party Materials contained therein. The Club shall obtain no rights in or to the Licensed Software by operation of these Terms and Conditions or otherwise, other than the rights and licenses set forth in Section 2.  


  1. Indemnification. 


  1. Indemnification by Capstone.  Capstone shall at its expense defend, indemnify, and hold harmless the Club from and against any and all claims, costs, fees (including reasonable attorneys’ fees and expert witness fees), damages, liabilities and expenses arising out of, relating to, or to the extent alleging: (a) infringement or misappropriation of any Intellectual Property Rights by any Licensed Software; or (b) breach by Capstone of any of its representations, warranties or obligations under these Terms and Conditions. The Club shall:  (i) provide written notice of the claim to Capstone promptly after becoming aware of the same, (ii) relinquish control of the defense or settlement of any action to Capstone (provided, however, and only so long as, Capstone is diligently pursuing the defense of such action), and (iii) at Capstone’s request, provide reasonable assistance and cooperation to Capstone, at Capstone’s expense.


  1. Additional Obligations.  In addition to the obligations under Section 12(a), if any Licensed Software becomes the subject of an action described above, or the Club’s use thereof is enjoined or prohibited in connection with any such action, Capstone shall, at its expense: (a) obtain a license or other necessary rights permitting the continued exercise of the rights conferred by or pursuant to these Terms and Conditions with respect to such Licensed Software; or (b) if such license or rights are unavailable, replace or modify the affected Licensed Software so that it is not infringing and still provides substantially the same functionality.  In the event that Capstone cannot accomplish (a) or (b) above within ninety (90) days after Capstone becomes aware of the applicable action, the issuance of such injunction or prohibition, or receipt of the Club’s notice that an action is likely to occur, then provided the Club cannot use substantially all of the Licensed Software because of such events, the Club or Capstone shall be entitled to terminate these Terms and Conditions and neither party shall have any further liability to the other under these Terms and Conditions.  Notwithstanding the foregoing, Capstone’s obligations pursuant to this Section shall not apply to the extent that the claim of infringement is caused by the Club’s modification of the Licensed Software or the use or combination of the Licensed Software with other products, equipment, software or data that was not intended to be used in combination with the Licensed Software, if such claim of infringement would have been avoided but for such modification or combination.


  1. Indemnification by the Club.  The Club shall at its expense defend, indemnify, and hold harmless Capstone from and against any and all claims, costs, fees (including reasonable attorneys’ fees and expert witness fees), damages, liabilities and expenses arising out of, relating to, or to the extent alleging: (a) infringement or misappropriation of any Intellectual Property Rights by any Club Modification; or (b) breach by the Club of any of its representations, warranties or obligations under these Terms and Conditions.  Capstone shall:  (i) provide written notice of the claim to the Club promptly after becoming aware of the same, (ii) relinquish control of the defense or settlement of any action to the Club (provided, and only so long as, the Club is diligently pursuing the defense of such action), and (iii) at the Club’s request provide reasonable assistance and cooperation to the Club, at the Club’s expense, provided that Capstone’s failure to comply with any of the foregoing shall not modify any of the Club’s obligations under this Section 12 except to the extent that the Club’s ability to fulfill any of such obligations is materially prejudiced by such failure.


  1. Settlement.  Subject to Sections 12(a) and 12(c), the indemnifying party shall have control of the defense and negotiations for settlement of actions under this Section; provided, however, that the indemnifying party must consult with the indemnified party prior to settling any such action, and the indemnifying party cannot bind the indemnified party or materially prejudice the indemnified party without the indemnified party’s prior written consent, not to be unreasonably withheld.  The indemnified party shall also have the right to participate in the investigation, defense and settlement negotiations of any such action with separate counsel chosen and paid for by the indemnified party.  Moreover, at any time, the indemnifying party may at its own cost and expense settle any such actions against it so long as such settlement is expressly without prejudice to the interest or position of the indemnified party.


  1. Limitation of Liability.  NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES BASED ON ANY BREACH OF THESE TERMS and CONDITIONS; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATION DOES NOT APPLY TO THE OBLIGATION OF CONFIDENTIALITY UNDER SECTION 10 OR ANY OBLIGATION TO DEFEND, INDEMNIFY, OR HOLD HARMLESS UNDER THIS SECTION 12.


  1. Remedies.  The parties hereto each recognize and agree that the Licensed IP is valuable, novel, and unique, and that there is no adequate remedy at law for a breach of these Terms and Conditions, that such a breach by any party hereto would irreparably harm the remaining parties and that any party bringing an action to enforce these Terms and Conditions is entitled to equitable relief (including, without limitation, an injunction) with respect to any such breach or potential breach, in addition to any other remedies available.


  1. Miscellaneous.


  1. Binding Nature.  The terms hereof shall bind the parties, their heirs, assigns, transferees, devisees, and successors.  


  1. Non-Waiver.  No failure to exercise, and no delay in exercising, on the part of either party, any privilege, any power or any rights hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. 


  1. Severability.  If any provision of these Terms and Conditions shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms and Conditions shall otherwise remain in full force and effect and enforceable.


  1. Governing Law; Jurisdiction; Venue.  These Terms and Conditions shall be deemed to have been made under, and shall be construed pursuant to, the laws of the State of Florida and the United States without regard to conflicts of laws provisions thereof.  The parties hereto each consent to the jurisdiction of the State of Florida and hereby waive any objection thereto.  Venue for the commencement of any action brought to enforce the terms hereof shall exclusively lie in the state and federal courts located in Duval County, Florida.


  1. Attorneys’ Fees and Costs.  The prevailing party in any action to enforce these Terms and Conditions shall be entitled to recover costs and expenses including, without limitation, attorneys' fees. 


  1. Modification.  Any waivers or amendments shall be effective only if made in writing and signed by the parties. 


  1. Entire Agreement.  All parties agree that these Terms and Conditions are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of these Terms and Conditions. 





EXHIBIT A

DEFINITIONS


Capitalized terms used and not otherwise defined herein are defined as follows:


“Affiliate” means, any entity that controls, is controlled by, or is under common control with, another entity. For purposes of the foregoing, “control” of an entity means the power to direct or cause the direction of the management and policies of such entity through the ownership of fifty percent (50%) or more of the voting securities (or in the case of a non-corporate entity, equivalent ownership interests) of the controlled entity.


“Authorized User” means an individual appointed by the Club to use the Licensed Software pursuant to the License granted herein.  


“Confidential Information” means the confidential information of each party, as defined in Section 10(a) of these Terms and Conditions.


“Derivations” shall include the functional and technical creation or development of products incorporating, or inspired by, any component of the Licensed IP.  


“Club Modifications” means any modifications, enhancements, or derivative works of the Licensed Software created by the Club, alone or jointly with Capstone.


“Disclosing Party” means, with respect to any Confidential Information, the party that is the owner or discloser of such Confidential Information.  


“Documentation” means any user guides, manuals, operator guides, installation guides, technical reference manuals, data dictionaries, source code annotations and other programming materials, and other similar materials made available by the Club that are applicable to the Licensed Software.  


“Effective Date” has the meaning set forth in the Preamble.


“Error” means any malfunction or other deficiency in the Licensed Software which prevents it from performing in accordance with applicable specifications.  


“Intellectual Property Rights” means all intellectual, industrial or other proprietary rights recognized in any jurisdiction, whether issued or pending, registered or unregistered, including all forms of copyrights, patents, trademarks and service marks, and rights in trade secrets, and all embodiments thereof.  


“Laws” means all applicable laws, statutes, regulations, rules, ordinances and judicial precedents.


“License” means the license granted in Section 2 of these Terms and Conditions.


“Licensed IP” has the meaning set forth in Section 2 of these Terms and Conditions.


“Licensed Software” means the Software known as Drive, together with all related Documentation and Updates as of the Effective Date of these Terms and Conditions.


“Members” shall mean individuals who engage the services of the Club and who, or have in past, paid dues to the Club for access to such services.  


“Modifications” shall include modifications, enhancements, extensions or further developments of the Licensed IP.


“Permitted Use” means use of the Licensed Software by an Authorized User for the benefit of the Club in the ordinary course of its business operations for the purpose of selling and maintaining club memberships.


“Personally Identifiable Information” means any information that relates to the identity of an individual that may cause the identify of the individual to be reasonably inferred by either direct or indirect means, including such individual’s address, social security number or other identifying number or code, telephone number, email address.


“Recipient” means, with respect to any Confidential Information, the party who may have had or may have access to Confidential Information of the other party.


“Software” means the instructions for a computer, whether in the form of source code, object code, executable code, firmware or otherwise, and whether tangible or intangible, together with all documentation and other related materials.  


“Term” shall mean the Term of the Agreement as provided therein, unless earlier terminated under these Terms and Conditions.


“Third-Party Materials” means any materials and information, in any form or medium, that are not proprietary to Capstone, including any third-party: (a) documents, data, content, or specifications; (b) software, hardware, or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing. 


“Update” means any modification, enhancement or addition to the Licensed Software, including without limitation those intended to correct an Error, that may or may not include additional features, level of performance, or functionality, and all related Documentation.