Fivepals Terms and Conditions to Master Saas Agreement

FIVEPALS – TERMS AND CONDITIONS TO MASTER SAAS AGREEMENT

Last Updated: March 24, 2016

These Terms and Conditions (as may be updated from time to time as set forth herein, theSE “Terms and Conditions”) shall apply to the Master Software as a Service Agreement (the “Agreement”) entered into by you with FivePals, Inc. (“FivePals”) that refers to These Terms and Conditions. Before you enter into the Agreement, carefully read these Terms and Conditions. By executing the Agreement, you agree to be bound by these Terms and Conditions. If you do not agree to these Terms and Conditions, you should not execute the Agreement. Capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Agreement. As used herein “you” means Licensee (as defined in the Agreement), and “the Agreement” means the Agreement together with these Terms and Conditions, which are incorporated into the Agreement by Reference.

TC-1.DATA AND OWNERSHIP.

(a)Licensee Data. As between FivePals and Licensee, Licensee shall exclusively own all right, title and interest in and to all data and information submitted by Licensee (or its Authorized Users or hotel guests of Licensee) in connection with its or their use of the SaaS Services, FivePals Software and Mobile Application (collectively, “Licensee Data”) and all intellectual property and proprietary rights anywhere in the world (“Proprietary Rights”) therein. Licensee hereby grants to FivePals a perpetual, irrevocable, non-exclusive, royalty-free, worldwide license to use, reproduce, adapt, combine with other data, edit and re-format, generate, store, disclose and exploit any and all Licensee Data that does not constitute Personally Identifiable Information for any purpose, including, without limitation, to provide the SaaS Services to Licensee and Authorized Users and to analyze use of, and develop improvements to, the FivePals Software, the SaaS Services and/or Mobile Application. Other than as set forth in this Section TC-1(a), Fivepals shall (i) acquire no rights in any Licensee Data contained in or used with the SaaS Services, FivePals Software or Mobile Application by virtue of the Agreement, and (ii) process Licensee Data only to provide the SaaS Services, FivePals Software and Mobile Application, or as otherwise instructed by Licensee, or as may be required or permitted by applicable law.

(b)FivePals Data. FivePals collects data and information regarding use of the SaaS Services, FivePals Software and Mobile Application, regardless of whether or not the data or information was generated by the SaaS Services, FivePals Software or Mobile Application, or as a result of use of the SaaS Services, FivePals Software or Mobile Application by Licensee (or its Authorized Users or hotel guests of Licensee) (“FivePals Data”). FivePals does not collect, and FivePals Data does not include, any information that is linked to an identified or identifiable person (“Personally Identifiable Information”). Licensee acknowledges and agrees that (i) FivePals Data (as between FivePals and Licensee) is the sole and exclusive property of FivePals and (ii) FivePals shall be entitled to use, reproduce, adapt, combine with other data, edit, re-format, generate, store, disclose and exploit any and all FivePals Data for any purpose.

(c)FivePals Intellectual Property. As between the parties, the SaaS Services, FivePals Software, Mobile Application and Documentation and all Proprietary Rights embodied therein (collectively, the “FivePals Intellectual Property”) shall remain the sole and exclusive property of FivePals. In addition, FivePals shall own any and all information, data and feedback concerning use or operation of the theFivePals Software, the SaaS Services and/or Mobile Application and any and all modifications, design changes, features and improvements to the FivePals Software, the SaaS Services and/or Mobile Application suggested by Licensee, or any of its officers, directors, employees or agents, or any Authorized User (collectively, “Feedback”) and FivePals shall have the right to use, in any manner and for any purpose whatsoever, any and all Feedback. Licensee agrees to assign and does hereby assign toFivePals all right, title and interest that Licensee may acquire in and to any and allFivePalsIntellectual Property and Feedback. Neither the Agreement nor any Order Form shall grant to Licensee any ownership right or title of any kind in or to any FivePals Intellectual Property or Feedback.

(d)Consumer Protection and Privacy. Licensee shall comply with (i) all applicable laws and regulations relating to (A) the privacy of users of the SaaS Services, FivePals Software, and Mobile Application, including without limitation providing appropriate notices to and obtaining appropriate consents from any individuals to whom Licensee Data relates; (B) consumer protection, marketing, promotion, and text messaging, email, and other communications; and (C) the use, collection, retention, storage, security, disclosure, transfer, disposal, and other processing of any Personally Identifiable Information; and (ii) the terms of the FivePals online privacy policy, available at Prior to (A) using the SaaS Services, FivePals Software, or Mobile Application for the purpose of sending any text, SMS, or MMS message or (B) sending any text, SMS, or MMS message to an individual who provided Licensee with his or her phone number in connection with Licensee’s user of the SaaS Services, FivePals Software, or Mobile Application, Licensee shall obtain the necessary and appropriate consent to send such a message from the recipient of the message, including without limitation consent required pursuant to the Telephone Consumer Protection Act of 1991 (the “TCPA”). Such consent shall, at a minimum, meet the following requirements (provided that FivePals makes no representation to Licensee that the following consents are sufficient under the TCPA or any other applicable law, and Licensee is solely responsible for determining and obtaining all necessary and appropriate consents):

(i)With respect to any text, SMS, or MMS message that advertises the commercial availability or quality of any property, goods, or services, or serves similar promotional purposes (each a “Promotional Message”), Licensee shall obtain a signed consent from the recipient in substantially the form attached to the Agreement as Exhibit B; and

(ii)With respect to any text, SMS, or MMS message that is not a Promotional Message (each a “Non-Promotional Message”), Licensee shall only send such Non-Promotional Message if (A) Licensee has obtained a signed consent from the recipient in substantially the form attached to the Agreement as Exhibit B, or (B) such Non-Promotional Message is sent by Licensee in response to an inquiry from a hotel guest and is related to such inquiry, provided that such inquiry was sent to Licensee by such hotel guest via text, SMS, or MMS message, and further provided that such hotel guest has not otherwise instructed Licensee to refrain from sending such hotel guest messages via text, SMS, or MMS.

TC-2.TERM AND TERMINATION.

(a)Term. The Agreement shall commence on the Effective Date and continue in effect for the initial term set forth on the Order Form, unless terminated earlier in accordance with the Agreement (the “InitialTerm”); provided, that the Agreement shall automatically renew for successive one (1)-year terms (each, a “Renewal Term” and together with the Initial Term, collectively, the “Term”), unless one party provides written notice to the other at least ninety (90) days prior to the expiration of any term of its intention not to renew the Agreement, or unless otherwise terminated earlier in accordance with the Agreement.

(b)Termination. The Agreement may be terminated by FivePals in the event Licensee breaches any provision of the Agreement and fails to completely cure the breach within thirty (30) days (ten (10) days in the event of a breach of Licensee’s payment obligations) following FivePals’s written notice of the breach to Licensee; provided, however, that Licensee’s breach of any of its obligations in Section 2(c)of the Agreement or Section TC-6 of these Terms and Conditions shall be incapable of a cure and, in such event, FivePals shall have the right to terminatethe Agreement immediately upon written notice to Licensee.

(c)Effect of Termination. Upon expiration or any termination of the Agreement, all rights and licenses granted to Licensee under Sections 2(a) and 2(b) of the Agreement shall immediately terminate and revert to FivePals and Licensee shall cease all use and refrain from all further use of the SaaS Services and the FivePals Software. Neither party shall incur any liability whatsoever for any damages, loss or expenses of any kind suffered or incurred by the other party arising from or incident to any termination of the Agreement by such party that complies with the terms of the Agreement whether or not such party is aware of any such damage, loss or expenses. Neither party shall incur any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by the other party arising from or incident to any termination of the Agreement by such party that complies with the Agreement, whether or not such party is aware of any such damage, loss or expenses. These Terms and Conditions, and Sections 5 and6 of the Agreement, shall survive the expiration and any termination of the Agreement.

TC-3.WARRANTY.

(a)Authority. Each party represents and warrants to the other party that (i) it has full power and authority under all relevant laws and regulations and is duly authorized to enter into the Agreement; and (ii) to its knowledge, the execution, delivery and performance of the Agreement by such party does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it.

(b)General. FivePals warrants to Licensee that (i) the FivePals Software and SaaS Services, when operated in accordance with the Documentation, will perform the functions described in the Documentation, and (ii) the Maintenance and Support Services will be performed consistent with generally accepted industry standards. These warranties extend only to Licensee. FivePals makes no warranty as to the security of servers on which any Licensee Data resides. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION TC-3(B), THE SAAS SERVICES, THE FIVEPALS SOFTWARE AND ALL OTHER SERVICES AND PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, CONDITION OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FIVEPALS DOES NOT WARRANT THAT THE SAAS SERVICES WILL MEET LICENSEE’S REQUIREMENTS OR, EXCEPT AS PROVIDED IN HEREIN, THAT THE FIVEPALS SOFTWARE OR THE SAAS SERVICES WILL OPERATE UNINTERRUPTED, TIMELY, COMPLETELY SECURELY OR ERROR-FREE, OR THAT ANY ERROR IN THE FIVEPALS SOFTWARE OR THE SAAS SERVICES WILL BE CORRECTED, OR THAT THE LICENSEE DATA STORED WITHIN THE FIVEPALS SOFTWARE OR SAAS SERVICES WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.

TC-4.INDEMNIFICATION.

(a)FivePals Indemnification. Subject to the limitations set forth in Section TC-5 below, FivePals agrees to defend, indemnify and hold harmless Licensee from all liabilities and expenses, judgments, fines or penalties which Licensee incurs that directly result from any third party claim, action, suit or proceeding and amounts paid in settlement thereof alleging that the FivePals Software and/or SaaS Services, as used within the scope of the Agreement, constitutes an infringement of a United States copyright, trademark or patent issued on or before the Effective Date. Notwithstanding the foregoing, FivePals shall have no obligation to Licensee under this Section TC-4(a) to the extent any claim arises from (i) Licensee’s breach of the Agreement or any Authorized User’s violation of the terms of use or any other agreement governing such Authorized User’s use of the SaaS Services; (ii) continued use of the SaaS Services by Licensee or an Authorized User after FivePalshas notified Licensee in writing of the claim; (iii) any infringement which is incidental to the FivePals Software or SaaS Services and does not result primarily from the use of FivePals Software or SaaS Services; (iv) any modification of the FivePals Software or SaaS Services by anyone other than FivePals; or (v) the combination, operation or use of the FivePals Software or SaaS Services with any products or materials not provided by FivePals. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF FIVEPALS FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY USE OF THE FIVEPALS SOFTWARE OR SAAS SERVICES AND IS PROVIDED IN LIEU OF ANY WARRANTY OF NON-INFRINGEMENT. In addition to the foregoing indemnification, if FivePals determines that the FivePals Software or SaaS Services, or any portion thereof, violates or infringes any third party Proprietary Rights, FivePals, at its sole option and expense, may: (x) obtain for Licensee the right to utilize the FivePals Software and/or SaaS Services; (y) make the FivePals Software and/or SaaS Services non-infringing without materially diminishing the utility to Licensee of the FivePals Software and/or SaaS Services; or, if FivePals is unable to effect the actions in the foregoing clauses (x) and (y) despite its reasonable efforts, (z) terminate the Agreement.

(b)Licensee Indemnification. Licensee agrees to defend, indemnify and hold harmless FivePalsand its directors, officers, employees, contractors and agents, from all judgements, costs and expenses (including but not limited to reasonable attorneys’ fees) thatFivePals incurs resulting from any third party claim, action, suit or proceeding and amounts paid in settlement thereof arising from or related to (i) any breach by Licensee of the Agreement or (ii) any violation by an Authorized User of the terms of use or any other agreement governing such Authorized User’s use of the FivePals Software and/or SaaS Services.

(c)Indemnification Procedure. A party entitled to be indemnified under the Agreement (the “Indemnified Party”), shall (i) notify the other party (the “Indemnifying Party”) in writing within thirty (30) days of receipt of notice of any claim, action, suit or proceeding subject to the Indemnifying Party’s indemnity under the Agreement; (ii) provide the Indemnifying Party with all information within the Indemnified Party’s possession that is required for the defense of such suit and shall reasonably cooperate with the Indemnifying Party and its attorneys in the investigation, trial and defense of such claim(s) and (iii) permit the Indemnifying Party to take control of the defense and investigation of such claim(s).

TC-5.LIMITATION OF LIABILITY.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FIVEPALS HAVE ANY LIABILITY TO LICENSEE OR ANY THIRD PARTIES ARISING OUT OF OR RELATED TO THE AGREEMENT FOR (I) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, EVEN IF FIVEPALS KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; OR (II) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES, TECHNOLOGY OR RIGHTS. WITHOUT LIMITATION OF THE FOREGOING, THE TOTAL LIABILITY OF FIVEPALS FOR ANY AND ALL CLAIMS AGAINST FIVEPALS UNDER THE AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID BY LICENSEE TO FIVEPALS UNDER THE AGREEMENT WITHIN THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION GIVING RISE TO LIABILITY AROSE. THE FOREGOING LIMITATION OF LIABILITY IS CUMULATIVE WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES IN CONNECTION WITH THE AGREEMENT BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

TC-6.CONFIDENTIALITY.

(a)Confidential Information. During the Term, Licensee may come into possession of FivePals’s Confidential Information. “Confidential Information” means any information that FivePals designates as confidential or that a reasonable person would understand to be confidential under the circumstances. Without limiting the foregoing, Confidential Information includes the terms of the Agreement, the FivePals Software, the SaaS Services, the Documentation, financial, business and technical plans and strategies, inventions, new products, code, services and technology. Licensee will hold and maintain all Confidential Information in strict confidence and will not use such information, except as permitted under the Agreement. Any Confidential Information supplied by FivePals or obtained by Licensee, as permitted under the Agreement, may only be used by Licensee for the purpose of exercising its rights under the Agreement. The foregoing restrictions shall not apply with respect to information which, as evidenced by Licensee’s written records: (i) is already known by Licensee at time of disclosure; (ii) becomes, through no act or fault of Licensee, publicly known; (iii) is received by Licensee from a third party without a restriction on disclosure or use; or (iv) is independently developed by Licensee without reference to FivePals’s Confidential Information. Licensee may disclose Confidential Information to the extent required to be disclosed by a court or governmental agency pursuant to a statute, regulation or valid order; provided that, to the extent permitted by applicable law, Licensee first notifies FivePals and gives it the opportunity to seek a protective order or to contest such required disclosure.