ARCHIVED SEPTEMBER 30, 2026

Hospitality Service Terms and Conditions

These Hospitality Services Terms and Conditions (“Hospitality Terms“) effective as of the date of execution as set forth in the signature block of the applicable Service and Subscription Fee Terms (the “Effective Date“) are entered into by and between Digital Arbitrage Inc. (“Company“) and the Customer identified in the Service and Subscription Fee Terms (“Service Fees”). Together, these Hospitality Terms and the Service Fees constitute the “Hospitality Service Agreement.” The Company and the Customer may be referred to individually as a “Party” and/or collectively as the “Parties.”

Customer operates one or more hotels, inns, bed and breakfasts (B&Bs), hostels, vacation rentals and/or other properties (each a “Property“) and desires to subscribe to and obtain access to the Company’s online, cloud-based software, systems and technologies (collectively, the “System(s)“) that are used by Company to provide the services specified in Service Agreement (the “Service(s)“) in order to receive from Company such Services for Customer’s Authorized Properties (as defined below).

In consideration of the mutual promises contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. CUSTOMER AUTHORIZATION, ACCESS AND TRAINING.

1.1. Access to and Use of the Services. Subject to the terms and conditions of this Agreement, including Customer’s timely payment of the Fees (as defined below), during the term of this Agreement, the Company grants Customer a non-exclusive, non-transferable (except pursuant to a valid assignment under Section 15 (Assignability), non-sublicensable right to access and use the System solely to receive the Services for the Properties specified on a completed “Property Contact Sheets” provided by Customer to Company (or such other form specified by the Company from time to time) (collectively, the “Authorized Properties“) in all cases as such Services are specified in (a) the Services Addendum signed by the Parties in the form attached hereto as Exhibit A (the “Service Addendum“) or (b) “add-on” or “optional” Services for each Authorized Property as specified in the Property Contact Sheet for that Authorized Property.

Customer and its Designated Users (as defined below) will access and use the Systems and Customer will receive the Services solely in connection with Customer’s operation of the Authorized Properties and in compliance with the terms and conditions of this Agreement.

For purposes hereof, the term “Designated Users” for an Authorized Property means employees of the Customer or the applicable Authorized Property (i) listed in the Property Contact Sheet for the Authorized Property and (y) as added to the System by a Designated User for the Authorized Property.

Except as expressly granted in this Section, there are no other rights or licenses granted to Customer, express, implied or by way of estoppel. All rights not granted in this Agreement are reserved by Company.

For clarity, the term “Services” include all the services provided by Company under this Agreement, including support services and onboard services.

1.2. Authorized Properties; Service Start Dates and Billing Day. Following the Effective Date, in the event the Customer wishes to designate one or more Properties as Authorized Properties, Customer shall submit to Company a completed Property Contact Sheet. The Service start date for each Authorized Property will be specified by Customer the Property Contact Sheet (the “Service Start Date“). The System and the Services will not be available to Customer or to the Designated Users for an Authorized Property until the Service Start Date for the Authorized Property. The day of the month for the Service Start Date for the first Authorized Property will be the “Billing Day” for all other Authorized Property regardless of the Service Start Date for any such other Authorized Property. By way of example, if the Service Start Date for the first Authorized Property is September 15^th, then the Billing Day is the 15^th of each month. If the Billing Day is the 31^st or 30^th of the month and a month does not have 31 or 30 days, then the last day of the month will be the date used to bill for that month.

1.3. Required Information

1.3.1 Property Information. Customer shall provide and input into the System (or cause each Authorized Property to provide and input into the System) all necessary information and content, on a timely basis, including as required for building of initial System database and the user interface for each Authorized Property, including room types, written descriptions of the Authorized Property, prices for rooms at the Authorized Property, username/password, quality photographs, logos, etc. (collectively, the “Required Data“). Customer will continually maintain and update in a timely fashion (or cause Authorized Properties to do same) all Required Data for each Authorized Property in the System database and ensure (or cause the Authorized Properties to ensure) that all such Required Data remains current, accurate and not misleading, including in order to prevent errors due to incompatibility with distribution channels, including Bookings.com and Expedia. Company will not be responsible or liable if any Required Data is incomplete, misleading, inaccurate or otherwise contains errors. Company is authorized to rely upon all Required Data in the System.

1.4. Designated Users. Access to the System is limited solely to Designated Users. Customer acknowledges and agrees that, as between Company and Customer, Customer is solely responsible for all acts and omissions of its Designated Users, including access and use of the System by Designated Users and for such Designated User’s compliance with this Agreement.

1.5. Restrictions. Neither the Customer, any Authorized Property, nor any Designated User may: (i) make any copy, modification, reproduction or derivative work of any of the System (or any portion thereof) or any Company Confidential Information; (ii) sell, assign, convey, rent, lease, loan, sublicense or otherwise transfer its rights to use or access the System or allow any third party other than a Designated User to use or access the System or receive the Services; (iii) decompile, disassemble, reverse engineer, or modify in any way, the System or any portion thereof; (iv) reconfigure or redeploy the System in a manner not expressly authorized by the Company; (v) remove, alter or obscure any proprietary notice or legend of the Company, its suppliers or licensors upon the System or any documentation provided therewith; (vi) violate any federal, state or local laws or regulations; (vii) publish or disclose to third parties any evaluation of the System or the Services without Company’s prior written consent; (viii) use the System or the Services for any purpose other than its intended purpose; (ix) interfere with or disrupt the integrity or performance of the System or the Services; or (x) attempt to gain unauthorized access to the System or the Services. Customer will immediately notify the Company if the Customer becomes aware of any violation of the terms of this Agreement and/or any violation by Company or its Designated Users of applicable law, rules or regulations. Customer will not access or use the System or any Company Confidential Information for purposes of creating (or assisting any third party with creating) a competing system, product or service.

1.6. Use of Third-Party Offerings. Company or third parties may from time to time make Third-Party Offerings available to Customer via the System or the Services. “Third-Party Offerings” means certain software or services delivered or performed by third parties that are required for or used in connection with the Services or other online, web-based, or other business application subscription services, and any associated offline products provided by third parties, that interoperate with the System or the Services. Any acquisition by Customer of any such Third-Party Offerings, and any exchange of data between Customer and any provider of a Third-Party Offering, is solely between Customer and the applicable provider of the Third-Party Offering. Company does not warrant or provide technical support any Third-Party Offering, whether or not they are designated by Company as “certified” or otherwise. If Customer enables any Third-Party Offering for use with Services, Customer acknowledges that Company may allow providers of that Third-Party Offering to access Customer data as required for the interoperation and support of such Third-Party Offering with the Services. Company shall not be responsible for any disclosure, modification or deletion of Customer data resulting from any such access by the providers of Third-Party Offerings.

1.7. Integration with Third-Party Offerings. The Services may contain features designed to interoperate with Third-Party Offerings (e.g., Google, Facebook or Twitter applications). To use such features, Customer may be required to obtain access to such Third-Party Offering from their providers. If the provider of any Third-Party Offering ceases to make the Third-Party Offering available for interoperation with the corresponding Services features on reasonable terms, Company may cease providing such features without entitling Customer to any refund, credit, or other compensation.

1.8. Supplier Access Codes. To the extent that Company requires that Customer grant Company authorizations, passwords or other user credentials to a Third-Party Offering (“Access Codes“) to retrieve Customer data or to enable interoperability with the Services, Customer shall promptly provide such Access Codes. Company shall not share, reassign, divulge or disclose any Access Codes except to Company employees or contractors specifically engaged in the performance of the Services. Access Codes shall constitute Customer’s Confidential Information under this Agreement.

1.9. Third-Party Hosting. Company may use the services of one or more third parties to deliver any part of the Services. Company will pass-through any warranties to the extent that Company receives any from its then current third-party service provider that it can provide to Customer. Customer agrees to comply with any acceptable use policies and other terms of any third-party service provider that are provided or otherwise made available to Customer from time to time.

1.10. Passwords and Security.

1.10.1. Passwords. Company may issue to Customer, user logins and passwords for each of their Designated Users authorized to access and use the System and Service. Customer shall be and shall ensure that each of their Designated Users are responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the Designated User to which it was issued. Customer is solely responsible for any and all access and use of the Services that occurs using logins and passwords Company issues to any of Customer. Customer shall restrict the Designated Users from sharing passwords. Customer agrees to immediately notify Company of any unauthorized use of any account or login and password issued to Customer’s or Customer’s Designated Users, or any other breach of security known to Customer. Company shall have no liability for any loss or damage arising from Customer’s failure to comply with the terms set forth in this Section.

1.10.2. Circumvention of Security. Neither Customer nor any of Customer’s Designated User may circumvent or otherwise interfere with any user authentication or security of the Services. Customer will immediately notify Company of any breach, or attempted breach, of security known to Customer.

1.10.3. Security. Company will use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards intended to protect the security, confidentiality and integrity of Customer Data in a manner consistent with what Company supplies generally to its other customers. Notwithstanding the foregoing, Customer acknowledges that, notwithstanding any security precautions deployed by Company, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Company Services and Customer Data. Company cannot and does not guarantee the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient. Company shall not (a) modify Customer Data, (b) disclose Customer Data except as compelled by law or as expressly permitted in writing by Customer, or (c) access Customer Data except to provide the Services and prevent or address service or technical problems, or at Customer’s request in connection with customer support matters.

2. PROPERTY SYSTEM REQUIREMENTS.

2.1. Minimum and Suggested Requirements. Customer will access the System online (i.e., over the Internet). Nothing is installed by Company on Customer’s computers or downloaded by Customer from the Company. The following table sets forth the minimum and suggested requirements for Customer’s and its Designated Users’ equipment, software, services and system in order to access and use the System and receive the Services. Customer is solely responsible, at its cost and expense, for procuring, deploying and maintaining the required equipment, software, services and system. Company is not responsible or liable for any failure of any such equipment, software, services or systems.

Company may update the foregoing requirements from time to time as technology changes and Company will provide advance written notice to Customer of any such changes. Customer will implement such changes.

Customer is responsible for (a) obtaining, deploying and maintaining the all computer hardware, software, modems, routers and other communications equipment necessary for Customer and Designated Users to access and use the System and Services via the Internet; (b) contracting with third party ISP, telecommunications and other service providers to access and use the System and Services via the Internet; and (c) paying all third party fees and access charges incurred in connection with the foregoing. Company shall not be responsible for supplying any hardware, software or other equipment to Customer under this Agreement.

2.2. No Unauthorized Upload. Utilizing an intermediary system that has not been authorized by Company in writing to upload data to the Company’s System violates the terms of this Agreement. From time to time the Company may provide to Customer one or more APIs to permit Customer to upload Required Data to the System. Company may require Customer to agree to additional terms, conditions, restrictions and limitations in connection with Customer’s use of such APIs.

3. FEES AND PAYMENT.

3.1. Activation Fee and Subscription Fees. The fees for the Services as of the Effective Date are set forth in the Service Fees document. Unless stated to the contrary in a written amendment to this Agreement signed by each Party, on a Property-by-Property basis, the Customer shall pay to Company:

3.1.1. the then-current on-boarding or activation fee (“Activation Fee“), and

3.1.2. the then-current subscription fee and the then-current fee for each add-on or optional Service requested on the Property Contact Sheet for each Authorized Property (collectively, the “Subscription Fee“), and

3.1.3. support fees, training fees, and any other fees that may be set forth in the Service Fees document, a Property Contact Sheet or otherwise mutually agreed by the Parties (collectively, the “Other Fees” and together with the Activation Fees and Subscription Fees, the “Fees“).

For the Initial Authorized Properties, the invoice for the Activation Fee, the first Fee and any Other Fees will be sent to Customer on the Effective Date and such invoice due and payable prior to the Service Start Date for the first Authorized Property.

For each Authorized Property, access to the System and use of the Services will not be available until the later of (i) the Service Start Date for the Authorized Property or (ii) receipt of the Activation Fee, the first Subscription Fee, and any Other Fees for that Authorized Property.

3.2. Payment Terms. All invoices for all Fees will be delivered to Customer electronically via email to the designated contact specified in the Service Fees document. Except for the initial invoice for an Authorized Property, each invoice for the Service Fees will include the Fees for all Authorized Properties. All invoices will be sent on the Billing Day regardless of the Service Start Date for each Authorized Property. A generic email address specific to Customer’s Accounts Payable department, rather than a specific person’s address, is recommended to ensure Customer’s receipt of invoice. Company is not responsible for “undeliverable” or returned emails. In the event of a returned or denied payment attempt, Customer agrees to pay Company a reprocessing fee of $100.00 USD per instance. Except for the initial invoices for the Fees for an Initial Authorized Property, invoices are due and payable as provided in the Service Fees document, and if not specified therein, then within fifteen (15) days after receipt of the invoice.

NON-UTILIZATION FEE The following applies to properties in the United States, Mexico, UK and Canada who are contracted to be users of Cloudbeds Payments. Customer acknowledges that the pricing, discounts, and commercial terms provided under this Agreement are conditioned upon Customer utilizing Cloudbeds Payments as Customer’s primary payment processing solution for Applicable Transactions processed through the Cloudbeds platform. Customer agrees that one hundred percent (100%) of Applicable Transactions processed through or facilitated by the Cloudbeds platform during each calendar month shall be processed through Cloudbeds Payments (the “Minimum Utilization Requirement”). Company may, in its reasonable discretion, disregard minor deviations from the Minimum Utilization Requirement. For purposes of this Section, an “Applicable Transaction” means any transaction for goods or services provided by Customer where Cloudbeds receives, stores, tokenizes, transmits, or otherwise processes payment credential data associated with a credit card or other electronic payment method through the Cloudbeds platform or related Cloudbeds services. Notwithstanding the foregoing, for properties located in Mexico, “Applicable Transactions” shall strictly mean e-commerce (card-not-present) transactions and shall exclude any card-present or physical payment terminal transactions. Applicable Transactions do not include transactions paid exclusively by cash, check, wire transfer, ACH, direct billing, Net 30 invoicing, cashier’s check, or other payment methods where no payment credential data associated with a credit card or electronic payment method is processed through the Cloudbeds platform.

3.3. Failure To Pay. Failure to pay any undisputed Fees may result in late fees equal to the lesser of 1.5% per month or the maximum rate allowed by law from the date due until paid in full, and in the Company’s discretion, immediate suspension or termination of the Services. To reinstate the Services after non-payment or late payment of undisputed Fees, the Company reserves the right to, if payment is settled within 30 days of suspension, require Customer to pay a reinstatement fee up to 50% of the applicable Activation Fee, plus all outstanding Fees if settled within 30 days of suspension and if settled after 30 days of suspension a reinstatement fee up to 100% of the initial Activation Fee. Unpaid balances over 90 days old will be subject to additional collection costs and expenses, including reasonable attorneys’ fees, as well as immediate suspension or termination of Company’s Services, and the Customer hereby agrees to pay all such reasonable collection and legal fees incurred by the Company (in addition to any unpaid Fees).

3.4. Change of Services. If there is a change in Services during the term of this Agreement that require the payment of additional fees, including as a result of new features and functions being added to the Services, such changes to the Services will be added to this Agreement as mutually agreed upon by Customer and Company where such agreement is memorialized in a written update or amendment to the Service Addendum executed by the Parties, including the updated Fees that are payable from the month of change through balance of the Subscription Term for each Authorized Property. Customer acknowledges that the Services might not include all the features and functions that Customer desires and that the Services might not meet all of Customer’s needs or requirements.

3.5. Annual Increase. The Company may, at any time following the Initial Term of the agreement (see Item 1.3) and no more than once in any twelve (12) month period following the initial term of this Agreement, with at least thirty (30) days prior written notice to Customer, increase any or all of the Fees (other than Activation Fees for existing Authorized Properties) for the Services under this Agreement for any reason, including to account for inflation or any applicable compulsory wage, tax or social charge increases, which increase shall be effective starting on the date thirty (30) days following such written notice, including for existing Authorized Properties. Annual Increase shall be no more than 5% year over year.

3.6. Base Currency. All currency amounts stated in this Agreement are in USD $.

3.7. Taxes. The term “Taxes” means all taxes, levies, imposts, duties, fines or similar governmental assessments imposed by any jurisdiction, country or any subdivision or authority thereof including federal, state or local sales, use, property, excise, service, transaction, privilege, occupation, gross receipts or similar taxes, in any way connected with this Agreement or any instrument, order form or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes imposed on or measured by a party’s net income. Notwithstanding the foregoing, Taxes shall not include payroll taxes attributable to the compensation paid to workers or employees and each party shall be responsible for its own federal and state payroll tax collection, remittance, reporting and filing obligations. Fees and charges imposed under this Agreement or under any document ancillary to or referenced by this Agreement shall not include Taxes. Customer shall be responsible for all such Taxes. If, however, Company has the legal obligation to pay Taxes and is required or permitted to collect such Taxes for which Customer is responsible under this Section, Customer shall promptly pay the Taxes invoiced by Company unless Customer has furnished Company with valid tax exemption documentation regarding such Taxes at the execution of this Agreement or at the execution of any subsequent instrument, order form or agreement ancillary to or referenced by this Agreement. Customer shall comply with all applicable tax laws and regulations. Customer hereby agrees to indemnify Company for any Taxes and related costs paid or payable by Company attributable to Taxes that would have been Customer’s responsibility under this Section if invoiced to Customer. Customer shall promptly pay or reimburse Company for all costs and damages related to any liability incurred by Company as a result of Customer’s non-compliance or delay with its responsibilities in this Section. Customer’s obligation under this Section shall survive the termination or expiration of this Agreement.

4. OWNERSHIP AND USE OF INFORMATION.

4.1. Ownership Rights. Company owns all intellectual property rights (including all copyrights, patents, trademarks, service marks and trade secrets) in and to all versions of the Services and all elements of the System used to provide the Services, including all related intellectual property and industrial property rights and all derivative works based on the foregoing, including modifications or derivative works created at the request or suggestion of Customer or a Designated User. Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement. Company and Customer will, as it relates to their relative ownership rights, jointly own all data generated by any users of the System.

4.2. Use of Information. The Customer agrees to not use any Confidential Information (as defined in Section 8 (Confidential Information)) or any other information about or from Company or the System for chain letters, junk mail, “spamming,” solicitations (commercial or non-commercial) or bulk communications of any kind, including assembling or preparing distribution lists to any person who has not given specific permission to be included in such a list. If Customer is in violation of this Section, Company reserves the right to immediately terminate this Agreement without notice. This use of information is on a mutual / reciprocal basis.

4.3. Feedback. Customer and Designated Users may from time to time provide to the Company feedback, ideas, suggestions, comments and/or other feedback regarding the Services and the Systems, including suggestions for improvements or new features or functions for the System or Services (collectively, “Feedback“). The provision of Feedback by Customer to Company is voluntary. No Feedback shall constitute Confidential Information of Customer, and the Company is not required to hold any Feedback in confidence. Customer hereby irrevocably assigns and agrees to irrevocably assigns to Company all right, title and interest in and to the Feedback (including all intellectual property rights therein). The Company may use Feedback for any purpose without obligation of any kind to Customer or Designated Users. Company is not required to implement any Feedback in the Systems or the Services.

5. TERM AND TERMINATION.

5.1. Term. The term of this Agreement will commence on the Effective Date and this Agreement will terminate at the end of the Subscription Term for the last Authorized Property, unless earlier terminated as provided in this Agreement.

5.2. Termination for Cause. This Agreement may be terminated by a Party by written notice if the other Party is in material default or material breach of this Agreement and fails to cure such default or breach within thirty (30) days after receiving a written notice of the default or breach, provided that the cure period shall be five (5) business days in the case of Customer’s failure to pay amounts owed to Company.

5.3 Effect of Termination; Survival. In case of any termination of this Agreement, Customer shall, on the termination date, pay (i) all Fees currently owed to Company as of the date of termination, including all Fees accruing between the date of the notice of termination and the actual termination date and (ii) unless Customer has terminated this Agreement due to an uncured material breach by Company as provided above, all Fees due for the then-current Authorized Property based on the balance of the Subscription Terms for such Authorized Properties, assuming the Subscription Term does not renew on the next anniversary of the Service Start Date for each such Authorized Property. The termination of this Agreement automatically and immediately revokes Customer’s right to access and use the System and receive the Services. The provisions of Sections 1.6 (Restrictions), 3 (Fees and Payments), 4 (Ownership and Use of Information), 5 (Term and Termination), 6 (Competitor), 7 (Confidential Information), 8 (Indemnification), 9 (Disclaimer), 10 (Limitation on Liability) and 11 (Entire Agreement; No Third-Party Beneficiary) – 21 (Headings and Interpretation) and all rights and obligations that may have accrued prior to termination, along with any other provisions that might reasonably be deemed to survive such termination.

5.4. Property or Ownership Dispute. In the event of any dispute regarding ownership, control, or operation of any property listed as an Authorized Property (including the right to access any Customer account), Customer agrees that Company may, in Company’s sole discretion, suspend any or all services and may terminate this Agreement with respect to that specific property.

6. COMPETITOR. Notwithstanding anything to the contrary contained in this Agreement, no person working with or in any way related to the Company’s competitors may have access to the System under any circumstances and any such person shall not be a Designated User hereunder.

7. CONFIDENTIAL INFORMATION.

7.1. Confidential Information. As used herein, “Confidential Information” means all information of a Party (the “Disclosing Party“) disclosed to the other Party (the “Receiving Party“), whether orally or in writing, that is designated as confidential or that otherwise reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement. The Fees, the System, the design of the System and Services and all technical information, business processes related to the System and all information and data related to the Company’s employees, contractors, and distribution channel partners will be the Company’s Confidential Information. However, Confidential Information does not include any information that (a) is or becomes generally available to the public other than as a result of a breach of this Section by the Receiving Party, (b) was known to the Receiving Party at the time of disclosure by the Disclosing Party without any obligation of confidentiality, (c) was disclosed to the Receiving Party by a third party without a breach of any obligation of confidentiality such third party may have to the Disclosing Party, or (d) was independently developed by the Receiving Party without use of any Confidential Information of the Disclosing Party by persons who have had no access to such Confidential Information.

7.2. Protection and Use of Confidential Information. The Receiving Party agrees to take the same security precautions to protect against disclosure or unauthorized use of Confidential Information of the Disclosing Party that the Receiving Party takes with its own confidential information of like nature, but not less than reasonable precautions. The Receiving Party will not use the Confidential Information for any purpose other than the performance of obligations or exercise of rights under this Agreement and will not disclose Confidential Information to any other entity or person other than to its employees, officers, directors, or advisors (“Representatives“) who have a need to know such Confidential Information for such purpose and who are bound by confidentiality obligations at least as protective of the Confidential Information as this provision. The Receiving Party is responsible for full compliance with the terms and conditions of this Agreement by its Representatives. Nothing in this Agreement will prevent the Receiving Party from disclosing Confidential Information that is required to be disclosed to comply with applicable laws or regulations or a judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such intended disclosure where possible so that it may seek reasonable legal remedies to prevent or minimize such disclosure. The obligations of this provision will survive termination of this Agreement (i) with respect to Confidential Information that constitutes a “trade secret” under applicable law, for so long as such Confidential Information remains a trade secret under applicable law and (ii) with respect to all other Confidential Information, for a period of three (3) years from termination. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.

8. INDEMNIFICATION.

8.1. Obligation of Company.

8.1.1. IP Infringement Indemnity. Subject to the terms and conditions in this Agreement, Company shall, at its cost and expense, (a) defend, or at Company’s option settle, any claim, suit, proceeding or action brought against Customer, its officers, directors, employees and agents (collectively, the “Customer Indemnitees“) by a third party (each a “Claim“) alleging that Customer’s use of the System and receipt of the Services as permitted under this Agreement infringes any of such third party’s patents issued as of the Effective Date, or copyrights, or misappropriate any of such third party’s trade secrets (an “IP Claim“); and (b) indemnify and hold harmless the Customer Indemnitees from (i) any final award of damages awarded by a court of competent jurisdiction and paid to the third party bringing the IP Claim, excluding enhanced damages and attorneys’ fees for willful infringement that is based on or is the result of the acts or knowledge of the Customer Indemnitees, or (ii) any settlement amount agreed to in advance and in writing by Company and paid to the third party bringing the IP Claim. For clarity, the Company’s obligation to defend an IP Claim includes the cost of Company’s counsel to defend the IP Claim, fees for expert witnesses hired by the Company and court related costs. The counsel employed by the Company to defend an IP Claim may also serve as counsel to Company.

8.1.2. Mitigation. At any time after notice of an IP Claim, or if Company believes there is a basis for an IP Claim, Company has the right, at Company’s sole option and expense, to either (a) procure the right for Customer to continue accessing and using the System and receiving the Services as provided in this Agreement, or (b) replace or modify the System or Services with services or systems that has substantially similar functionality and that Company believes would not be subject to the IP Claim. If Company deems (a) or (b) not feasible or not commercially reasonable, Company has the right to terminate this Agreement or all rights under this Agreement to the applicable Company System or Service. In the event of any such termination, Company will refund to Customer the unused portion of any Fees pre-paid by Customer for the affected Services. In addition, upon any such termination, Customer shall cease accessing and using the applicable Systems and cease receiving the applicable Services.

8.1.3. Exceptions. Notwithstanding anything to the contrary, Company shall have no obligations or liability under this Section 8.1 (Obligations of Company) or otherwise, including any duty to defend a Claim or any portion of a Claim or any enhanced damages for a Claim, if the Claim is based upon, arises out of, or is related to, in whole or in part, or if any of the following apply: (a) the combination of the Services with any product, software, solution, or service not developed and provided by Company to Customer or the use of any such combination, (b) any modifications made to the Systems or Services made by Company in compliance with specifications or instructions provided by Customer, (c) use of the System or Services outside the scope of the rights set forth in this Agreement or in violation of any law or any restriction or limitation set forth in this Agreement, (d) Customer’s failure to comply with Company’s direction to cease any activity that in Company’s reasonable judgment may be ruled to be an infringement or misappropriation of a third party’s rights, (e) any allegation by a third party that does not specifically reference the System, the Services or a feature of function of the System or Services, (f) any Claim related to, arising out of, related to, or connected with any third party’s products, software, solutions, or services, or (g) any IP Claim for which Customer does not promptly tender control to Company. In addition, Company will not have any obligations under this Section and Customer forfeits its right to defense and indemnity under this Section if Customer is in breach of its confidentiality or payment obligations at the time of the Claim or at any time thereafter or if Customer has exceeded or is exceeding the scope of the rights granted to Customer under this Agreement.

8.1.4. Sole Remedy. THE TERMS IN THIS SECTION 8.1 (OBLIGATIONS OF COMPANY) SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND COMPANY’S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION WITH RESPECT TO THIRD PARTY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8.1 (OBLIGATIONS OF COMPANY), COMPANY SHALL NOT HAVE ANY OBLIGATION TO DEFEND OR INDEMNIFY CUSTOMER FOR THIRD PARTY CLAIMS. Company has no obligation or liability under this Section 8.1 (Obligations of Company) with respect to any IP Claim for which Customer first provides written notice to Company more than one (1) year after the termination or expiration of this Agreement.

8.2. Obligation of Customer. Subject to the terms and conditions in this Agreement, Customer shall, at its cost and expense, (a) defend, or at Customer’s option settle, any claim, suit, proceeding or action brought against Company, its officers, directors, employees and agents collectively, the “Company Indemnitees“) by a third party (each a “Claim“) arising out of or relating to: (a) acts or omissions of Customer and/or any Designated User that result in personal injury or death, (b) an intentional, fraudulent, tortious or grossly negligent act or omission or willful misconduct of Customer and/or any Designated User, (c) a breach of any covenant in this Agreement by Customer and/or any Designated User, including any Required Data or other data or information about an Authorized Property being inaccurate, misleading, incomplete or erroneous, including the prices for room and the availability of rooms, (d) a breach of any representation or warranty in this Agreement by Customer and/or any Designated User, (e) the failure of Customer’s or and/or any Designated User to comply with applicable laws, (f) an allegation or claim by a visitor, customer, resident or patron of an Authorized Property, (g) any claim by an employee or contractor at an Authorized Property, and (h) any allegation or claim that any Required Data or any other Customer and or Designated User intellectual property, data, logos, trademarks, photographs, videos, images, or information made available to the Company for use in rendering the Services under this Agreement or otherwise used on the System as permitted under this Agreement constitutes an infringement or misappropriation of any intellectual property or privacy rights of any third party.

8.3. Indemnification Notification and Procedure. Upon becoming aware of any claim for defense and indemnification under this Agreement in connection with a third party Claim (an “Indemnification Claim“), the Company Indemnitee or Customer Indemnitee, as the case may be, seeking defense and indemnification (the “Indemnified Party“) shall give written notice thereof to the Customer or the Company as the case may be (the “Indemnitor“) promptly (but in no event later than fifteen (15) days) after the Indemnified Party learns of the existence of such Indemnification Claim; provided, however, the failure to give such notice shall not affect the rights of such Indemnified Party except and only to the extent the Indemnitor is materially prejudiced by such failure. The Indemnitor shall have the right to select and employ legal counsel at Indemnitor’s expense, to defend against any such Indemnification Claim, or to compromise, settle or otherwise dispose of the Indemnification Claim; provided, however, that if the settlement of an Indemnification Claim would adversely affect or otherwise place an obligation (monetary or otherwise) on the Indemnified Party that is not paid by the Indemnitor, the Indemnitor shall have the right to settle the Indemnification Claim as to the Indemnified Party only with the Indemnified Party’s prior written consent, which consent may be withheld in the Indemnified Party’s sole discretion. The Indemnified Party shall fully cooperate in the investigation, trial and defense of the Indemnification Claim at its own expense, shall make available to the other Indemnitor any books or records useful for the defense of any such Indemnification Claim, and shall make available its representatives with respect to defense of the Indemnification Claim. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such Indemnification Claim within fifteen (15) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Party shall be free to reasonably dispose of the Indemnification Claim, at the expense of the Indemnitor (but only if indemnification is adjudged to be proper), in any way in which the Indemnified Party deems to be in its best interest.

9. WARRANTY DISCLAIMERS.

9.1. Mutual Warranties. Each Party represents and warrants to the other Party that: (i) it is a corporation duly organized and validly existing under the laws of its jurisdiction of incorporation; (ii) it has the requisite corporate power and authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement; (iii) the execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated by this Agreement, have been duly authorized by the requisite corporate action and will not conflict with their respective charters or by-laws; and (iv) this Agreement is a valid and binding obligation, enforceable against it in accordance with the terms set forth herein, except as limited by (a) applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other laws of general application affecting the enforcement of creditors’ rights, and (b) general principles of equity (e.g., if an injunction issues that precludes the performance of an obligation).

9.2. COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SYSTEM OR ANY SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT , TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, COMPLIANCE WITH ANY APPLICABLE LAW OR REGULATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, OR AS TO THE ACCURACY OR COMPLETENESS OF THE CONTENT, DATA OR INFORMATION PROVIDED OR MADE AVAILABLE BY COMPANY, INCLUDING ON THE COMPANY’S WEBSITE. IN ADDITION, COMPANY MAKES NO REPRESENTATION THAT THE OPERATION OF THE COMPANY SYSTEM OR THE PROVISION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, SECURE, WILL OPERATE IN COMBINATION WITH ANY SOFTWARE, EQUIPMENT NOT SPECIFIED BY COMPANY OR THAT THE SYSTEM OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. COMPANY WILL NOT BE LIABLE TO THE CUSTOMER OR ANY OTHER THIRD PARTY FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS IN THE OPERATION AND/OR PERFORMANCE OF THE COMPANY SYSTEM OR THE AVAILABILITY OF THE SERVICES. NO AGENT OF COMPANY IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF COMPANY AS SET FORTH HEREIN.

10. LIMITATION OF LIABILITY.

THE COMPANY, ITS SUPPLIERS, AND/OR LICENSORS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, ANY PENALTIES OR FINES OF ANY KIND, OR ANY LOSS OF REVENUE, PROFITS, BUSINESS OR DATA, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, OR THE SYSTEM, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR SYSTEMS.

FURTHER, THE COMPANY, ITS LICENSORS, AND/OR SUPPLIERS SHALL NOT BE LIABLE FOR ANY CUMULATIVE AGGREGATE DAMAGES OR ANY OTHER LIABILITY OR OBLIGATIONS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, AND THE SYSTEM EXCEEDING THE LESSER OF THE TOTAL ANNUAL FEES PAID TO DATE BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE OF THE CLAIM FOR THE APPLICABLE PROPERTY(IES) TO WHICH THE CLAIM RELATES, OR $5,000 USD, LESS IN ALL CIRCUMSTANCES PREVIOUS AMOUNTS PAID IN SATISFACTION OF LIABILITY UNDER THIS AGREEMENT.

THE FOREGOING LIMITATIONS OF LIABILITY IN THIS SECTION 10 (LIMITATION OF LIABILITY) SHALL APPLY (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (B) REGARDLESS OF THE CLAIM, CAUSE OF ACTION OR THEORY OF LIABILITY, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STATUTE, REGULATION, INDEMNIFICATION, OR ANY OTHER THEORY OF LIABILITY. CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 11 (LIMITATION OF LIABILITY) SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

COMPANY WILL NOT, IN ANY WAY, ALTER THE POLICIES, RULES, AND REGULATIONS FOR ANY WEBSITE THAT CUSTOMER CONTRACTS (INCLUDING BOOKINGS.COM, EXPEDIA.COM) TO YIELD THROUGH COMPANY AND/OR ITS SOFTWARE. COMPANY IS DEPENDENT UPON THE ACCURACY OF DATABASE INFORMATION AS DIRECTED BY CUSTOMER, INCLUDING ROOM TYPE NAMES, USERNAMES, PASSWORDS, MARKUP PERCENTAGES AND/OR MARKUP DOLLAR AMOUNTS, RATES, FEES, ROUNDING TYPES AND AMOUNTS, ETC., AND COMPANY SHALL NOT HAVE ANY OBLIGATIONS OR LIABILITY AND WILL NOT BE IN BREACH OF THIS AGREEMENT AS A RESULT OF ANY INACCURACY OR DISPLAY (INCLUDING ANY FAILURE TO DISPLAY ON ANY BOOKING ENGINE) OF ANY SUCH INFORMATION.

11. ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement and its associated schedules addendums and attachments sets forth the entire understanding between the Parties and supersedes any and all oral and/or written agreements and/or understandings between the Parties, including any warranties and/or representations with respect to the System and/or to the subject matter of this Agreement. Nothing in this Agreement, express or implied, is intended to confer on any person or entity (including any Authorized Property or any Designated User), other than the Parties and the Indemnified Parties, any right or remedy of any nature whatsoever under this Agreement.

12. NOTICE. All notices required by or relating to this Agreement will be in writing and will be personally delivered or sent by means of overnight or express courier or certified mail, postage prepaid. Notices to Customer will be addressed to Customer to the address and to the principal contact (or in the case of a billing notice, to the billing contact) set forth above or such other contact and address as Customer notices to Company in writing in accordance with this provision. Notices to the Company will be addressed to the Company’s Chief Executive Officer at the address set forth above or such other address and contact as the Company notices to Customer in writing in accordance with this provision.

13. GOVERNING LAW; JURISDICTION; ATTORNEYS’ FEES. This Agreement will be governed by and interpreted in accordance with the laws of the State of California, without regard to conflicts of law principles thereof. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The Parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or any version thereof, adopted by any state of the United States in any form. For purposes of all disputes and claims related to or brought under this Agreement, each of the Parties hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located in San Diego County, California, provided that either Party shall have the right to seek equitable relief in any court of competent jurisdiction. In case of an action or claim related to this Agreement, including to enforce any rights or conditions of this Agreement, or any appeal, it is mutually agreed that the losing Party in such suit, action, proceeding or appeal shall pay the prevailing Party’s reasonable attorneys’ fees and costs incurred.

14. AMENDMENTS. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.

15. ASSIGNABILITY. Either Party may assign this Agreement to a third party without the consent of the other Party only in the event of a sale of all, or substantially all of its assets related to the subject matter of this Agreement, or to a third-party involved a change of control of such Party through stock sale, merger or otherwise. Company may assign this Agreement to a direct or indirect affiliate of Company. This Agreement shall be binding on either Party’s respective permitted successors and assigns. Any attempt to assign this Agreement in violation of this provision is null and void.

16. NO WAIVER. Neither party’s failure to enforce strict performance of any provision of this Agreement will constitute a waiver of any right to subsequently enforce such a provision or any other provision of this Agreement.

17. PUBLIC ANNOUNCEMENT

17.1 Public Announcement. Company may use the Customer’s name(s) and/or brand names(s), image(s), logo(s) or likeness for identifying the Customer’s company as a customer in public relations, print and online marketing, sales or promotion purposes. Customer grants Company the right to announce the relationship with a press release upon contract signing. The Customer retains the right of ownership of all name(s) and/or brand name(s) and will have the right to pre-approve quotes or text endorsements, not to be unreasonably withheld, prior to public distribution. Customer hereby grants to the Company a worldwide, non-exclusive, royalty-free, fully paid-up right and license to use Customer’s name and mark(s) for purposes contemplated by this Section.

17.2. Non-Disparagement. The Parties agree not to disparage each other in any manner, including making disparaging statements on the Internet, through any type of media, and through communication with any individuals or entities of any sort. To the extent they exist, each Party shall immediately take down any disparaging website or blog post in any way relating to the other Party.

18. FORCE MAJEURE. Neither Party will be liable for failure to perform or delay in performing any obligation under this Agreement, other than for delay in the payment of money due and payable hereunder, if such failure or delay is due to fire, flood, earthquake, weather, acts of God, power failure, strike, war (declared or undeclared), commercial impracticability , embargo, blockade, epidemic or pandemic (declared or undeclared), legal prohibition, governmental action or order, riot, insurrection, damage, destruction or any other cause beyond the reasonable control of such Party whether or not such other cause is similar to one or more of the causes set forth above (“force majeure events“). Upon written notice, dates by which performance obligations are scheduled to be met, other than for delay in the payment of money due and payable hereunder, will be extended for a period of time equal to the time lost due to any force majeure event. As a condition to the claim of non-liability, the Party experiencing a force majeure event shall give the other Party prompt written notice (prompt written notice is considered to be no more than ten days from the date of force majeure event impacting the Party), with reasonable details following the occurrence of the cause relied upon.

19. ENFORCEABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

20. COUNTERPARTS. This Agreement may be executed by facsimile, electronic mail (including PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.

21. HEADINGS AND INTERPRETATION. The headings and titles contained in this Agreement are included for convenience only and will not limit or otherwise affect the terms of this Agreement. Unless expressly stated otherwise, references in this Agreement to “Sections” mean sections of this Agreement and include all subsections thereof. For the purpose of the construction and interpretation of this Agreement, the words “including,” “include,” “includes,” and “such as” are not terms of limitation, but rather will be deemed to be followed by the words “without limitation,” and the words “hereby,” “herein,” “hereof,” and “hereunder” refer to this Agreement as a whole. This Agreement has been negotiated and prepared by the Parties and their respective counsel, and should any provision of this Agreement require judicial interpretation, the court or arbitrator interpreting or construing the provision shall not apply the rule of construction that a document is to be construed more strictly against one party.