Terms of Service

1.      INTRODUCTION

1.1     Your access to the DYNAMIC CHANNELS MARKETPLACE also known as the P2P (Partner-to-Partner) MarketPlace, (“MarketPlace”) dba Dynamic Channels Marketplace (aka “P2P Marketplace” or the “Company”) website (the “Site”) as "Listing Partner" is subject to the following terms of use. READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE PROCEEDING. If you do not agree to these terms of use and are not willing to be bound by the terms do not accept the term as your sole recourse is to cancel your P2P Marketplace Agreement and not to use the Site as a Listing Partner.  Terms of agreement apply solely to distribution through the P2P Marketplace website.

1.2     In consideration of the mutual covenants and agreements contained in this Agreement, Listing Partner and P2P and P2P agree to the terms and conditions set out in this Agreement.

2.      DEFINITIONS

2.1     “Documentation” shall be instructional and other documentation, in printed and electronic form, relating to the marketing, use, and support of the Products including, but not limited to, internals, externals, procedures, training manuals, and education materials, and any update and modification thereto.

2.2     "End User" shall be an entity which has licensed the Products for its own internal use and not for further distribution.

2.3     "Affiliate Marketer" shall be any nonemployee representative of P2P or a P2P subsidiary, or any majority owned subsidiary of P2P or any third party appointed by the MarketPlace to represent, market, or sale Products listed on The Site.

2.4     "Affiliate Marketer's Fee" shall be the amount retained by or paid to an Affiliate Marketer as its compensation for marketing the System or Services.

2.5     "License Agreement" shall be the license agreement with End Users for each Product and which is confirmed by the electronic acceptance terms and conditions of End User's use of the Products.  P2P shall have the exclusive right to define the License Agreement terms for its products.  Listing Partner may submit for consideration their own license agreement to govern terms of use their Products and/or services.  If no other license to govern End Users is agreed, the P2P License Agreement will prevail as the term of use for End Users.   

2.6     License Charge" shall be the fee, as further defined in this Paragraph 2.6, received by P2P from End User, directly or indirectly, for licensed use of a specific version of the Products, for a specified period of time.  Any additional sales of Product or future versions of the Products by P2P to End User may also require an additional “License Charge” of End Users.  P2P may charge a License Charge each time a Product is licensed or “sold”, as may be the case with licenses of perpetual use.  License Charges shall include initial license charges, subscription license charges, lease license charges, rental license charges, upgrade license charges, renewal or annual usage license charges, and any similar charges.  License Charge shall not include; installation charges; implementation charges; optional services charges; maintenance charges; trial agreement charges; demonstration charges; consulting services charges; education charges; subcontractor fees; financing or interest charges, including those rolled into any license charge; service or late charges; or other similar charges; sales tax, use tax, value added tax, or other similar taxes.

2.7     “Net Income” shall be the License Charges received by P2P less any amount paid to third parties that are not a P2P owned or controlled subsidiary.

2.8     "Products" shall be the computer software products which are proprietary to Listing Partner and are more fully described in Appendix A, Description of the Products.  Products shall include all documentation necessary for End User to perform the functions of the Products.  Products shall also include all enhancements, improvements, modifications, releases, versions, and any replacement products.

2.9     "Royalty Quarter" shall be successive quarters of the calendar year, ending on March 31, June 30, September 30, and December 31.

2.10    "Royalty Year" shall be the 12 month period beginning April 1st and ending March 31st of the following year.

3.      LICENSE GRANTS

3.1     Listing Partner hereby grants and P2P hereby accepts for itself and its Agents a(n) nonexclusive, worldwide, perpetual, irrevocable license to distribute, market, promote, sublicense/license, copy, and demonstrate, the Products, exclusively through the P2P Marketplace (an on-line e-commerce directory); directly or indirectly, including through affiliates, value added resellers, dealers, distributors, Agents, original equipment manufacturers, and others validly Licensed through the P2P Marketplace ; including Listing Partner's copyrights, trademarks, and proprietary rights related to the Products.

3.2     Listing Partner grants P2P a nonexclusive, perpetual, irrevocable worldwide license to distribute, market, promote, sublicense, price, and demonstrate and, at its option, if requested in writing by Listing Partner, and P2P agrees to do so, for P2P to support, maintain, copy, translate, rename, repackage, manufacture, the Products, directly or indirectly, to End Users.  Otherwise, Listing Partner assumes all responsibility to support End Users in the use of their Products according to the terms of the prevailing license.

4.      DEVELOPMENT

4.1     If Listing Partner declines to perform any new development for Listing Partner Products that P2P requires, then P2P shall have the right to perform that development and retain resulting intellectual property.

5.      TITLE

5.1     Except for the rights and licenses granted to P2P, Listing Partner shall retain all right, title, and interest in the Products including all rights under applicable patents, copyrights, trademarks, and trade secrets.

5.2     Except for the rights and licenses granted to Listing Partner, P2P shall retain all right, title, and interest in any human language translations or development as provided in Section 4.  of the Products which P2P requires and performs.

6.      TERM

6.1    

        This Agreement shall be effective as of Date of Execution.  From the date of its commencement, this Agreement shall continue in force for a term of one year(s) and thereafter will automatically renew for successive one year terms, unless terminated earlier as provided in Section 14, TERMINATION.

7.      DELIVERY

7.1     For Products to be shipped from P2P’s distribution center, Listing Partner shall provide P2P, at no charge to P2P, a master copy of each Product and Documentation.

7.2     Listing Partner, as the default practice, shall ship the Products directly to End User as soon as is practicable after receipt of an End User order.

8.      PAYMENT

8.1     P2P shall invoice End Users for License Charges for the Products licensed by End Users.

8.2     P2P shall pay Listing Partner a­­­ royalty of each License Charge paid by End Users for Products posted to the P2P Marketplace by Listing Partner, in the amount noted in Appendix A.

8.3     P2P shall pay Listing Partner a ­­­ royalty of Support and Service Charges paid by End Users for technical, consulting, service, and support of Products licensed by End Users on the P2P Marketplace and performed by Listing Partner for End Users, in the amount noted in Appendix A.

8.4     All royalty payments due to Listing Partner shall be payable by P2P within 60 days of the end of the Royalty Quarter in which P2P invoices the End User.

8.5     The parties acknowledge that in certain countries currencies may become not freely remittable outside of those countries or the transfer of charges outside of those countries may become taxed or prohibited by law.  In such case, the parties may mutually agree that payments be made in other than United States dollars and may take into consideration the manner in which such a situation could best be handled in the interests of both parties.

9.      SUPPORT

9.1     In consideration for Royalties paid, Listing Partner shall provide all support for the Products to End Users by Listing Partner according to the terms of the prevailing End User license agreement.  Additionally, Listing Partner will make available to P2P and its End Users and Affiliate Marketers initial training for each Product.  The training will include training in sales, pre-sales support, and other appropriate training for P2P and Affiliate Marketers to perform responsibility for the sales and support of Listing Partner’s Products and End Users to evaluate and use the the Product’s.  The cost of this training service will be a reasonable fee. 

9.2     Listing Partner shall assume responsibility, at no charge to P2P, to maintain its content on the P2P Marketplace site with the marketing materials required to list Products. P2P reserves the right to review and activate or de-activate listing for Products. At no cost to P2P, Listing Partner may, at its option, provide additional tools to help the sale of the Products through the P2P Marketplace.   

9.3     P2P reserves the sole right to provide and activate Listing Partner’s listing of the Product in the P2P Marketplace.  P2P will engage in efforts and investments to actively market and sell Listing Partner Products through the P2P Marketplace, as set out in Appendix B, MARKETING EFFORTS.

10.     REPRESENTATIONS AND WARRANTIES

10.1    Listing Partner warrants that:

        10.1.1  Listing Partner has full power and authority to grant all licenses conveyed to P2P under this Agreement and has full power and authority to enter into this Agreement;

        10.1.2  the Products and the use of the Products will not infringe any patent, copyright, or trade secret of any third party; and

        10.1.3  the Products will substantially conform with the functionality described in the Products' technical manuals and that the Products' media is free from defects.

10.2    EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT,  LISTING PARTNER MAKES NO OTHER WARRANTIES AND HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE PRODUCTS, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

10.3    P2P warrants that it has full power and authority to enter into this Agreement.

10.4    EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, P2P MAKES NO OTHER WARRANTIES AND HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.

11.     INDEMNIFICATION

11.1    Listing Partner shall defend, hold harmless, and indemnify P2P against any suit, claim, or liability, including reasonable attorney fees, against P2P based upon a claim that Listing Partner does not have sufficient right, title, and interest in the Products to grant the rights and licenses contained in this Agreement, or that the Products infringe any patent, copyright, trade secret, or other proprietary right of any third party and shall pay the amount of any settlement or the costs and damages finally awarded after appeal, if any, in such suit, claim, or liability.

12.     PROPRIETARY AND CONFIDENTIAL INFORMATION

12.1    P2P hereby acknowledges that Listing Partner claims that the Products and related source code contain valuable confidential information and trade secrets developed or acquired by Listing Partner through the expenditure of considerable time and resources.  P2P shall take all reasonable measures to protect the Products and the related source code.  P2P shall notify Listing Partner promptly in writing of any knowledge relating to possession or use of Listing Partner’s Products by any person or entity other than those authorized under valid license agreement.  P2P shall notify Listing Partner of changes P2P makes to the source code or shall coordinate such changes with Listing Partner.  P2P releases Listing Partner of support obligations to End Users for those portions of the Products changed as a result of the changes made by P2P to the source code.

12.2    P2P shall take all reasonable measures to ensure that the confidentiality provisions included in the License Agreement are honored.

12.3    P2P shall not remove any notice of copyright, tradename, trademark, or any other proprietary notice from the Products or related documentation.

12.4    Any violation, breach or default of this Section 12 will subject P2P to injunctive remedies, as well as such other extraordinary remedies as may be allowed at law or in equity.

13.     LIMITATION OF LIABILITY

13.1    EACH PARTY'S LIABILITY ARISING OUT OF THIS AGREEMENT, OUT OF THE RELATIONSHIP CREATED BY THIS AGREEMENT, OUT OF THE ACTIVITIES RELATED TO THIS AGREEMENT, OR THE USE OR DISTRIBUTION OF THE LSITING PARTNER, EXCEPT FOR THE PAYMENT OF ANY ROYALTIES AND OTHER AMOUNTS DUE TO LISTING PARTNER UNDER THIS AGREEMENT, SHALL BE LIMITED TO 2 TIMES THE ROYALTIES PAID BY P2P TO LISTING PARNTER FOR THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM.  NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES UNDER ANY CIRCUMSTANCES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SAME.  HOWEVER, FOR LIABILITY ARISING OUT OF ANY INTENTIONAL OR WILLFUL BREACH OF THE OBLIGATIONS SET OUT IN SECTION 12, PROPRIETARY AND CONFIDENTIAL INFORMATION, OR ARISING OUT OF THE WARRANTIES SET OUT IN SECTION 10, REPRESENTATIONS AND WARRANTIES, THERE WILL BE NO LIMITATION OF DAMAGES OF ANY KIND.

14.     TERMINATION

14.1    This Agreement may be terminated as follows:

        14.1.1  Failure by either party to comply with any material term or condition of this Agreement shall constitute default and shall entitle the other party to give the defaulting party written notice requiring it to correct the default.  If the defaulting party has not cured the default within 60 days after receipt of the notice, the notifying party may, in addition to any other rights it may have under this Agreement or under the law, terminate this Agreement by giving written notice to the defaulting party effective immediately.

        14.1.2  If either party ceases to carry on the business contemplated by this Agreement, becomes or is declared insolvent or bankrupt, or makes an assignment for the benefit of its creditors, the other party may terminate this Agreement by giving 60 days' prior written notice to the party so acting or acted upon.

14.2    Upon termination of this Agreement, P2P's licenses to the Products as set out in Section 3, License Grants, shall terminate at the time such termination is effective except to the extent necessary for P2P to continue the support of the licenses for the Products to End Users existing at the time such termination is effective. In such event and for such End Users, P2P shall have continuing, royalty-bearing licenses to the Products as set out in Section 3, License Grants, to the extent such rights and licenses exist immediately prior to the time such termination is effective.

14.3    In the event of the termination of this Agreement for any reason by either party as set out in this Section 14, the obligations of Listing Partner and P2P which have accrued as of the effective date of termination shall survive such termination.  In addition, the rights and obligations of the parties pursuant to Section 8, PAYMENT; Section 9, SUPPORT; Section 10, REPRESENTATIONS AND WARRANTIES; Section 11, INDEMNIFICATION; Section 12, PROPRIETARY AND CONFIDENTIAL INFORMATION; Section 13, LIMITATION OF LIABILITY; Section 16, RESTRICTION ON SOLICITATION OF EMPLOYEES; Section 18, NOTICES; Section 22, GOVERNING LAW; and Section 25, ENTIRE AGREEMENT, shall survive the termination of this Agreement.

15.     RELATIONSHIP

15.1    This Agreement does not create any relationship of agency, partnership, or employment between the parties.  P2P and Listing Partner enter this Agreement as and shall remain independent parties.  Listing Partner understands and agrees that it shall not receive any fringe benefits and/or benefit costs of any kind and waives its right to receive any fringe benefits and/or benefit costs of any kind from P2P.  Except as provided in this Agreement, neither party shall have the right or authority to assume, create, or enlarge any obligation or commitment on behalf of the other party and shall not represent itself as having the authority to bind the other in any manner.

16.     RESTRICTION ON SOLICITATION OF EMPLOYEES

16.1    Listing Partner and P2P mutually agree, to the extent permitted by law, to refrain from soliciting for employment or employing, directly or indirectly, any End User, employee, agent, Indirect Marketer, reseller, or distributor, of the other until 12 months have elapsed following termination of this Agreement, or until at least 12 months have elapsed following termination of the employment of the employee, agent, Indirect Marketer, reseller, or distributor, whichever occurs first.

17.     RECORDS, REPORTS, AND AUDITS

17.1    P2P shall prepare and maintain complete and accurate books and records documenting the marketing and distribution of the Products to Affiliate Marketers and End Users.

17.2    During the term of this Agreement, Listing Partner shall have the right, at its expense and upon reasonable notice, to exam P2P’s books and records which pertain to the matters of this Agreement in order to determine and verify P2P’s compliance under this Agreement.

18.     NOTICES

18.1    Any notice required or permitted hereunder shall be validly and effectively given only if in writing and sent by telefax, or by certified mail, postage prepaid, return receipt requested, or by hand delivery to the other party at the following address:

        If to P2P:   P2P Systems, Inc.

                         Dreve Du Monastere, 2

                         4280 Hannut, BELGIUM

                         Attention: Eric Nies

                         eMail: eric.nies@purelybusinessapps.com

        or to such other address as shall be advised by any party to the other in writing.  Notices shall be effective as of the date of receipt or refusal of receipt.

19.     ASSIGNMENT AND SUCCESSORS

19.1    This Agreement and any rights or obligations under this Agreement shall not be transferred by either party to any third party without the prior written consent of the other party.  This consent shall not be unreasonably withheld.  However, P2P may transfer, without the consent of Listing Partner, all or any part of this Agreement to any of its affiliated companies.  Subject to the restriction on transfer set forth in this Paragraph, this Agreement shall be binding upon and shall inure to the benefit of the parties' successors and assigns.

20.     WAIVER

20.1    The failure of either party to act upon any right, remedy, or breach of this Agreement shall not constitute a waiver of that or any other right, remedy, or breach.  No waiver is effective unless made in writing and signed by the waiving party.

21.     SEVERABILITY

21.1    If any provision of this Agreement is found to be unenforceable or illegal, such provision shall be severable and this Agreement shall be interpreted as if such provision does not exist.  If the elimination of such a provision materially affects this Agreement, the Agreement shall be renegotiated so that any change in the rights and obligations hereunder is shared as equitably as is feasible.

22.     GOVERNING LAW

22.1    This Agreement and the terms and conditions herein shall be governed by and construed in accordance with the laws of the State of Ohio, United States of America, without regard to its conflict of law principles.

23.     FORCE MAJEURE

23.1    Neither party shall be liable for any nonperformance or delay caused by any condition or event beyond its reasonable control.

24.     CONSTRUCTION OF TITLES

24.1    The titles of the Paragraphs and Sections of this Agreement are for convenience only and are not to be used in construing or interpreting this Agreement.

25.     ENTIRE AGREEMENT

25.1    This Agreement, which includes all referenced Appendices and other addenda, constitutes the entire agreement and understanding between P2P and Listing Partner relating to the marketing, sublicensing, and support of the Systems.  Any previous proposals or statements, whether oral or written, are hereby superseded.  This Agreement may not be amended or modified except by a writing which specifically references this Agreement and is signed by authorized representatives of P2P and Listing Partner.

APPENDIX A

               TO THE MARKETPLACE LISTING AGREEMENT

                    DESCRIPTION OF THE PRODUCT

All products listed on the P2P Marketplace, posted by the User Author associated with Listing Partner.

       Appendix A is first referenced in Paragraph 2.8.

P2P shall pay Listing Partner a ­ royalty in the amount of the % defined on The Site for each License Charge paid by End Users for Products.

P2P shall pay Listing Partner a ­­­ royalty in the amount of the % defined on The Site Support and Service Charges paid by End Users for technical, consulting, service, and support of Products performed by Listing Partner for End Users.

Listing Partner sale make available to P2P and Affiliate Marketers, at the costs noted below, the following additional education on the Products:

Listing Partner sale pay the amounts noted below for the additional listings:

• Basic Listing Posting Fee – First Product Posted is FREE of listing fee.

• Additional Product Posting Fee – at the rate noted on The Site

APPENDIX B

               TO THE MARKETPLACE LISTING AGREEMENT

                        MARKETING EFFORTS

       Appendix B is first referenced in Paragraph 9.3.

P2P will engage in efforts and investments to actively market and sell the Products through the P2P Marketplace (https://www.dynamicchannels.expert/marketplaces) and the Indirect Marketers licensed by it.  These efforts typically include the following:

a.   List the Product in the on the Marketing site and in the e-commerce order entry system of the P2P Marketplace.

b.   Review and vet the marketing material to ensure they meet the standards of the P2P Marketplace.

c.   At P2P’s option and election, provide support for additional marketing campaigns to promote the Products to the P2P Marketplace target market.

d.   Inform, through a non-dedicated e-mail notification, the P2P Marketplace representatives and End Users of the availability of the Product.

T

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