This Software as a Service Agreement (“SaaS Agreement”) is a binding contract between you (“Customer,” “you,” or “your”) and Laguna Creek LLC (“Provider,” “we,” or “us”). This Agreement governs your access to and use of the Services. Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”

THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE [“I ACCEPT”/[OTHER NAME OF BUTTON]] BUTTON BELOW (the “Effective Date”). BY CLICKING THE [“I ACCEPT”/[OTHER NAME OF BUTTON]] BUTTON BELOW YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS SaaS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS SaaS AGREEMENT AND, IF ENTERING INTO THIS SaaS AGREEMENT FOR ANY ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.

IF YOU DO NOT AGREE TO THESE TERMS, PLEASE SELECT THE [“I DECLINE”/ [OTHER NAME]] BUTTON BELOW. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.

1. Definitions:

• “Access Credentials” means any username, identification number, password, license or security key, PIN, or other security code, method, technology or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Software.
• “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
• “Aggregated Statistics” means data and information related to Customer’s use of the Software that is used by Provider in an aggregate and anonymized manner, including, but not limited to compiling statistical and performance information related to the provision and operation of the Software.
• “Authorized User” means Customer’s employees, and contractors who are authorized by Customer to access and use the Software under the rights granted to Customer pursuant to this SaaS Agreement (and in the case of contractors are not competitors of Provider).
• “Customer Website Bookings” means a consumer’s reservation and/or purchase of Customer’s accommodations, products and/or services through the Services via a website owned, operated, or controlled by Customer.
• “Customer Data” means (other than Aggregated Statistics) data and other content in any form or medium that is submitted or otherwise transmitted by or on behalf of Customer or an Authorized User through their use or access to the Software.
• “Documentation” means the written or online user instructions and/or manual for the Software, as updated by Provider from time to time.
• “Harmful Code” means any virus, worm, trap door, back door, snoop-ware, spyware, malicious logic, Trojan horse, time bomb or other malicious software functionality that would intentionally erase or render the Software unusable or intentionally interfere with the use of the Software or an Authorized User’s computer system or software. Harmful Code does not include any Provider Disabling Device.
• “On-Site Bookings” means a consumer’s reservation and/or purchase of Customer’s accommodations, products and/or services through in-person, point-of-sale transactions or manually entered transactions.
• “Mobile App” means the downloadable mobile application(s) provided to Customer and its Authorized Users by Provider specifically for purposes of facilitating access to, operation of, or use with the Services, including all Upgrades thereto.
• “Order” means the document(s) that records the Services and the fees purchased by the Customer.
• “Processor” means the payment services provider identified in Section 10 of this SaaS Agreement.
• “Provider API” means any Application Program Interface provided by the Provider for the purposes of the integration of the Services with a website owned, operated, or controlled by Customer.
• “Provider Disabling Device” means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Provider or its designee to disable Customer’s or any Authorized User’s access to or use of the Software automatically with the passage of time or under the positive control of Provider or its designee.
• “Services” means the software-as-a-service offering described on Provider’s website available at [URL] and reflected in Customer’s Order.
• “Software” means all software contained in the Services, including all Upgrades thereto, and the Mobile App.
• “Transactions” means a consumer’s reservation and/or purchase of accommodations, products and/or services of Customer through internet-based transactions, in-person, point-of-sale transactions, or manually entered transactions.
• “Term” means the Initial Term of this SaaS Agreement together with any and all Renewal Terms, as those terms are defined in Section 12(a) of this SaaS Agreement.
• “Third-Party Products” means any third-party products that are owned by third-parties and are incorporated into or accessible through the Services.
• “Upgrades” shall mean upgrades, updates, bug fixes or modified versions to the Software from time to time issued and applied by the Provider in its sole discretion.

2. Access and Use:

• Provision of Access to Software: Subject to and conditioned on Customer’s and its Authorized Users compliance with the terms and conditions of this SaaS Agreement:
  • Customer may access and use the Services on a non-exclusive and non-transferable basis during the Term in the United States solely for use by Authorized Users in accordance with the terms and conditions herein.
  • Provider grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable license during the Term in the United States to download and use the Mobile App solely on the electronic devices of Customer’s Authorized Users subject to the terms of the End User License Agreement for such Mobile App.
• Documentation: Subject to the terms and conditions contained in this SaaS Agreement, Provider grants to Customer a limited, non-exclusive, non-sublicensable license to use the Documentation during the Term in the United States solely for Customer’s internal business purposes in connection with its use of the Software.
• Integration of Services with Customer Website: Customer acknowledges and agrees the integration of Provider’s Services with Customer’s website is required for the purposes of enabling Customer Website Bookings. Provider in its sole discretion may choose the solution by which integration of its Services with Customer’s website may be accomplished whether via iframe, API, or otherwise. To the extent of any Provider API, Customer may only access and use such Provider API on a non-exclusive, , and non-transferable basis during the Term in the United States for Customer Website Bookings solely in the manner described in the Documentation. Any integration of the Services with Customer’s website must be certified by Provider in writing to confirm it is functional. For the avoidance of doubt, if this SaaS Agreement terminates pursuant to Section 12 of the SaaS Agreement, then Customer has no right to link to, embed or connect to the Services, whether via Provider API, iframe, or otherwise.
• Use Restrictions: Use of the Software and Documentation is limited to Customer’s internal business use. Customer shall not use the Software or Documentation for any purposes beyond the scope of access and use granted in this SaaS Agreement. Customer shall not and shall not permit any person other than its Authorized Users to access or use the Services except as expressly permitted by this Agreement. For the avoidance of doubt, Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to otherwise (i) create internet links, interfaces or otherwise connect any third-party to the Software (except for those approved Third-Party Products as set forth in Section 5 of this SaaS Agreement); (ii) modify, or create derivative works of the Documentation, or Software, in whole or in part; (ii) redistribute, sublicense, sell or otherwise make the Software or Documentation available to third parties; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof or the underlying ideas or algorithms thereof by any means whatsoever; (iv) bypass or breach any security device or protection used by the Services or access or use the Services or Software other than by an Authorized User through the use of their own then valid Access Credentials; (v) input, upload, transmit or otherwise provide to or through the Services or Software any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code; (vi) access or use the Services or Software in order to build a competitive product or service, (vii) use the Software or Documentation, or any part thereof in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law or (viii) input, upload, transmit or otherwise provide to or through the Services or Software any information or materials that includes threats of violence, obscenity, child pornography, or harassing content. Except as expressly provided in this SaaS Agreement with respect to the Mobile App, the Software shall not be downloaded, delivered or transferred to, or copied by, Customer or any Authorized User, and may only be accessed as contained in the Services via Provider’s website(s). Except as expressly provided in this SaaS Agreement with respect to the License to use the Mobile App, neither Customer nor any Authorized User will obtain any license to the Software, in each case, by virtue of this SaaS Agreement or any agreement or arrangement entered into between the Customer and any Authorized User.
• Reservation of Rights: Provider reserves all rights not expressly granted to Customer in this SaaS Agreement. Customer agrees and acknowledges also on behalf of Authorized Users, that Customer shall not acquire or obtain, and Provider does not assign or otherwise transfer by virtue of this SaaS Agreement ownership or title to any intellectual property (including, without limitation copyrights, trademarks, patents, developments, know-how, service or trade secrets and any other registered or non-registered intellectual property rights of any kind) contained in, derived from, implemented in or related to the Software, Documentation, or other materials provided by Provider.
• Customer Data: Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. Pursuant to this license under this Subsection 2(e), Provider may distribute Customer Data as required for the interoperation and support of Third-Party Products with the Software as identified in Section 5 of this SaaS Agreement.
• Aggregated Statistics: Notwithstanding anything to the contrary in this SaaS Agreement, Provider may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data. Customer agrees that Provider may (i) make Aggregated Statistics available to third parties in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Proprietary Information.

3. Access Credentials:

• Provider shall provide to Customer the necessary Access Credentials to allow Customer to access the Services. Customer will assign one or more Authorized Users to be administrators who will grant and remove access and access levels to all other Authorized User accounts. Administrators may assign only an individual Authorized User to each account (i.e., no shared accounts). Customer will ensure that each Authorized User maintains the confidentiality of their Access Credentials. Customer is solely responsible for access and use of the Services that occur using Access Credentials issued to any of its Authorized Users. Customer is responsible for retiring each Authorized User’s access to the Services when the Authorized User’s employment or contract is terminated or the individual otherwise no longer requires access to the Services. Customer agrees to immediately notify Provider of any unauthorized use of any account or credentials issued to Authorized Users, or any breach of security known to or reasonably suspected by Authorized Users and any time that Authorized Users should no longer have access to the Services or the data derived therefrom. Provider will have no liability for any loss or damage arising from Customer’s failure to comply with the terms set forth in this Section. Customer acknowledges and agrees that, as between Customer and Provider, Customer shall be solely responsible for all acts and omissions of Authorized Users, including any act or omission by an Authorized User, which, if undertaken by Customer, would constitute a breach of this Agreement and any act by a person (whether or not an Authorized User) using Customer’s Access Credentials. Provider is not responsible for resolving and is not liable for disputes between Authorized Users.

4. Customer Responsibilities:

• General: Customer is responsible and liable for all uses of the Software and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this SaaS Agreement. Customer shall use reasonable efforts to make all Authorized Users aware of this SaaS Agreement’s provisions as applicable to such Authorized User’s use of the Software and Documentation, and shall cause Authorized Users to comply with such provisions.
• Responsibility for Accuracy of Customer Data: Customer acknowledges and agrees that Provider neither endorses the contents of Customer Data nor assumes any responsibility for any content therein. Customer is responsible and liable for the completeness, integrity, quality, currency and accuracy of Customer Data. Provider is not obligated to verify, authenticate, or monitor the Customer Data. Customer will comply with any applicable laws and regulations when providing or otherwise making Customer Data available to Provider and shall provide any necessary notices or disclosures and obtain any required consents or authorizations to permit Provider to collect or process Customer Data and provide the Services.
• Equipment: Customer is solely responsible for obtaining and maintaining all equipment, computer hardware and software and all telecommunications and network services required by it to access and use the Services and will ensure that all such equipment and services comply with the technical specifications in the Documentation or as provided by Provider from time to time.
• Data Security: Customer assumes full responsibility for the security of data on its website or otherwise in its possession or control. Customer agrees that at all times it shall be compliant with applicable laws and regulations with regard to use of the Services by Customer or its Authorized Users and applicable industry standards, including but not limited to, the Payment Card Industry Data Security Standards (“PCI-DSS”) and the Payment Application Data Security Standards (“PA-DSS”). Customer shall use all procedures and safeguards necessary to securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services and control the content and use of Customer Data, including, without limitation, the provision of Customer Data.

5. Third-Party Products:

• General: Provider may use Third-Party Products to deliver any part of the Services. For purposes of this SaaS Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow-through provisions presented to you for acceptance within the Services by website link or otherwise. THIRD-PARTY PRODUCTS AND THE SERVICES OFFERED BY SUCH THIRD-PARTY PROVIDERS ARE NOT “SOFTWARE” UNDER THIS SaaS AGREEMENT AND PROVIDER HAS NO LIABILITY IN CONNECTION THEREWITH. CUSTOMER SHALL BEAR ALL RISKS ASSOCIATED WITH ACCESS TO AND USE OF SUCH THIRD-PARTY PRODUCTS. It is Customer’s responsibility to read the terms and conditions and privacy policies applicable to such Third-Party Products before using them.
• Customer Data and Third-Party Products: If Customer requests, activates or enables any Third-Party Products for use with the Software, Customer acknowledges that providers of that Third-Party Product may thereby be given access to Customer Data as required for the interoperation and support of such Third-Party Product with the Software. Customer hereby explicitly authorizes and instructs Provider to provide such access. Customer understands and agrees that any use by Customer of any such Third-Party Products, and any exchange of data with any provider of a Third-Party Product, is solely between Customer and the applicable provider of the Third-Party Product. Provider is not responsible for the privacy, security, integrity or use of Customer Data once transmitted or Customer Data stored outside of the Software, including to or in any Third-Party Product. For clarity, Provider is not responsible or liable for any act or omission arising from or relating to Third-Party Products.
• Change in Availability of Third-Party Products: The Services may contain features or APIs designed to interoperate with Third-Party Products. Customer may be required to obtain access to each such Third-Party Product from the respective third-party provider thereof. Client acknowledges that the nature, type, quality, and availability of Third-Party Products and features of the Services that interoperate with Third-Party Products depend on continuing availability of such third parties’ applicable programming interfaces for use with the Software. Provider may (at its sole discretion) update, change, or modify the Software as a result of a change in, or unavailability of, such Third-Party Products or APIs. For clarity, Provider is not obligated to incur any costs or create any new API or interoperability features except as set forth in the Order and subject to the charges (if any) set forth therein. Any changes to Third-Party Products or APIs, including their availability or unavailability, does not affect the Customer’s obligations under this SaaS Agreement. If any third party ceases to make its Third-Party Product or APIs available on reasonable terms for the Services, as determined by Provider in its sole discretion, Provider may cease providing such features immediately. As provided in Section 12, Provider has the right to suspend or terminate any portion or all of the Services without liability if a Third-Party Product required to enable Customer to access or use the Services is unavailable.
• Stripe: The Processor is Stripe, Inc., organized under the laws of California, which is a technical services provider and may offer such services as an agent of one or more financial institutions in the United States (each, a “Financial Services Provider”). The processing and settlement of Transactions (“Payment Processing”) is carried out by the Processor and any of the Financial Services Providers pursuant to a separate Stripe Connected Account Agreement https://stripe.com/en-us/connect-account/legal, including the United States Stripe Services Agreement https://stripe.com/en-us/legal and the applicable Financial Services Terms https://stripe.com/en-us/legal, and to the extent of a payment method that is subject to additional terms, the Payment Terms https://stripe.com/payment-terms/legal (collectively, the “Processor Terms”). By accepting this SaaS Agreement, Customer is also accepting and agreeing to be bound by the Processor Terms, which is the legal agreement between Customer and the Processor. Nothing in this SaaS Agreement diminishes Customer’s liability under the Processor Terms. Customer is obliged to fulfill Customer’s obligations under the Processor Terms. Customer assumes sole and exclusive responsibility for Transactions under the Processor Terms. Provider is not a party to the Processor Terms and is not liable to Customer in respect thereof. By accepting this SaaS Agreement and the Processor Terms, Customer agrees to the creation of an account with the Processor. Customer hereby appoints Provider as Customer’s agent to deliver information and instructions on Customer’s behalf to the Processor. For the avoidance of doubt and without limiting Section 10 of the SaaS Agreement, Customer agrees Provider is permitted to contact and share Customer Data with Processor and other third parties, including, about the Transactions for regulatory and compliance purposes, for use in connection with the management and maintenance of the Services, and for Processor’s risk management process. Provider reserves the right to change the Processor at any time, in which case Provider will notify Customer at least thirty (30) calendar days before the change becomes effective using the communication process specified in Section 20 of the SaaS Agreement.
• Reserves: Funds held in reserves are amounts of money set aside to cover chargebacks, refunds, or other payment obligations under this SaaS Agreement (the “Reserve Account”). Provider, in its discretion, will set the terms of the Reserve Account and notify Customer of such terms, which may require that a certain amount (up to the full amount) of the funds received for a Transaction are held for a period of time, or that additional amounts are held in the Reserve Account. Provider, in its discretion, may elect to change the terms of the Reserve Account at any time, for any reason, based on Customer’s payment processing history or as requested by Processor. Provider may require Customer to fund the Reserve Account by means of (a) any funds payouts made or due to Customer for Transactions submitted to the Processor; or (b) requesting that Customer provide funds for deposit to the Reserve Account. Customer acknowledges and agrees that: (a) Customer is not entitled to any interest or other compensation associated with the funds held in the Reserve Account; (b) Customer has no right to direct that account; (c) Customer has no legal interest in those funds or that account; and (d) Customer may not assign any interest in those funds or that account.
• Chargebacks: Provider has agreed to indemnify and hold the Processor harmless for some, and, in some cases, all of Customer’s liabilities occurring under the Processor Terms, including, but not limited to, disputes including, but not limited to, chargebacks, refunds, reversals, returns and fines as such terms are defined in the Processor Terms. Insofar as Provider becomes liable to the Processor or any other third party for any penalties, fines, fees, or other such liabilities under or in respect of the Processor Terms, Customer agrees to indemnify and hold Provider harmless from and against any and all such liabilities. Without limiting Customer’s Indemnification in Section 15 of the SaaS Agreement, Customer agrees to indemnify and defend Provider Indemnitees against any Action brought by a third party against Provider Indemnitees, and Customer agrees to fully reimburse the Provider Indemnitees for any Action that results from: (a) any fees, fines, penalties, disputes, reversals, returns, chargebacks (as such terms are defined in the Processor Terms), or any other liability Provider incurs that results from Customer’s use of the facilitated payment solution of Processor; and (b) third-party indemnity obligations Provider incurs as a direct or indirect result of Customer’s acts or omissions, including, but not limited to, indemnification of the Processor or any Payment Network (Visa U.S.A Inc., Mastercard International Incorporated, American Express, or other applicable card network). Customer is required to reimburse Provider for such liabilities occurring under the Processor Terms, including, but not limited to, chargebacks, refunds, reversals, returns and fines. Customer will not receive a refund of any Platform Services Fees paid to Provider. If Customer is liable for any amounts owed to Provider, Provider may immediately remove such amounts from the Reserve Account and deduct the amounts owed to Provider from such Reserve Account funds. If Customer does not have sufficient funds in the Reserve Account to cover Customer’s liability, Customer will be required to immediately add additional funds to the Reserve Account to cover funds owed to Provider.
• Prohibited Businesses: Customer agrees and acknowledges it is prohibited from using the Services to conduct a Prohibited or Restricted Business or to transact with a Prohibited or Restricted Business as defined under Processor’s Terms. By registering for an account with Processor, Customer is representing that it is duly established in the United States, and if necessary, registered or licensed as a business entity authorized to conduct business in the United States. The Services are only made available to persons in the United States that operate a business selling goods, accommodation services, and other related offerings to the hospitality industry.
• Payment Network Rules: The Payment Networks, including, Visa, Mastercard, American Express, or other applicable card networks, have established guidelines, bylaws, rules, and regulations in the form of Payment Network Rules. Customer is required to comply with all applicable Payment Network Rules. The Payment Network Rules for Visa, MasterCard and American Express are available on the Internet at the following links: VISA https://usa.visa.com/dam/VCOM/download/about-visa/visa-rules-public.pdf, MasterCard https://www.mastercard.us/en-us/about-mastercard/what-we-do/rules.html and AMEX https://www.americanexpress.com/uk/merchant/downloads.html?inav=gb_business_merch_support_dwnld. The Payment Networks may amend the Payment Network Rules at any time and without notice to Provider or to Customer. Provider or Processor may add or remove one or more types of Payment Networks in their sole discretion at any time without prior notice to Customer.
• Channel Management: Provider offers Channel Management Tools as part of the Services as set forth in the Order. Such Channel Management Tools enable access to online travel agencies (“OTAs”) (subject to the additional terms and conditions applicable to such OTAs). For the avoidance of doubt, Provider may distribute Customer Data as required for the interoperation and support of such Channel Management Tools with the Software, including, but not limited to, the rate, inventory, and availability information as provided by Customer. Customer has sole responsibility for delivery of the services being reserved by the consumer. It is the sole responsibility of the Customer to carefully manage their reservations and inventory. Provider does not accept any liability for unavailability of products/services caused by Customer’s over-selling their available inventory. Without limiting the indemnity in Section 15, Customer agrees to indemnify and hold Provider Indemnitee (as defined in Section 15) harmless from and against any and all Losses incurred by such Provider Indemnitee in connection with the failure of Customer or its Authorized Users to honor a reservation.

6. Service Levels:

• Service Levels: Subject to the terms and conditions of this SaaS Agreement, Provider shall make commercially reasonable efforts to make the Services available in accordance with the service levels available at [URL LINK].
• Support: For an additional fee, Customer may obtain Provider’s standard customer support services (“Support Services”) in accordance with Provider’s service support schedule then in effect currently described at [URL LINK].

7. Fees and Payment:

• Fees: Customer acknowledges and authorizes the fees identified in the Order are charged as Provider’s Platform Services Fee. Provider’s Platform Services Fees are calculated as a certain percentage of the value of a Transaction provided such Transaction is a Customer Website Booking or On-Site Booking.
• A consumer who reserves and/or purchases accommodations, products and/or services of Customer enters into a direct contractual relationship with Customer (the “Activity Contract”). Provider is not a party to the Activity Contract and Customer is solely responsible for fulfilling obligations vis-à-vis consumer under the Activity Contract.
• When Customer Website Bookings or On-Site Bookings are made, Customer acknowledges and agrees consumers are charged the Provider’s Platform Services Fees in addition to the fee for the accommodations, products and/or services provided under the Activity Contract with Customer (“Activity Fee”).
• Provider’s Services are integrated with a facilitated payment solution offered by a certain payment services provider (“Processor”). The Processor’s role is to accept and process credit card, debit card, and other types of payments with respect to Transactions. By accepting this SaaS Agreement and the Processor Terms as identified in Section 10, Customer agrees to the creation of an account with the Processor for payment processing.
• To the extent permitted by law, Provider may collect Provider’s Platform Services Fees by requesting Processor to deduct the corresponding amounts from the funds received for the Customer Website Booking or On-Site Booking. Provider’s Platform Services Fees will be assessed at the time the Customer Website Booking or On-Site Booking is processed and first deducted from the funds received for such booking. Alternatively, and to the extent permitted by law, Provider may collect Provider’s Platform Services Fees by requesting Processor to deduct the corresponding amounts from the Reserve Account (as that term is defined in Section 10).
• Consumers are not charged and do not pay additional fees to the Processor for use of the Processor’s facilitated payment solution. Rather, the fees of the Processor are charged to Provider. Provider may consolidate Processor’s fees with the Provider’s Platform Services Fees. To the extent permitted by law, Provider may request Processor to deduct such fees from the funds received from the applicable Customer Website Bookings and On-Site Bookings at the time of processing or from the Reserve Account as identified in Section 10.
• For the avoidance of doubt, if any Customer Website Booking or On-Site Booking is cancelled, Provider has the right to retain the Platform Services Fees collected for such booking. Pursuant to Section 10, Provider does not assume any liability for reservations and/or purchases of accommodations, products, and/or services of Customer that may later be reversed or charged back.
• Provider may increase Platform Services Fees for any Renewal Term as identified in Section 12 by providing written notice to Customer at least sixty (60) calendar days prior to the commencement of such Renewal Term and the rates for the Platform Services Fees as set forth in the Order will be deemed amended accordingly.
• Taxes: All Platform Services Fees and amounts payable by Customer under this SaaS Agreement are inclusive of any taxes imposed by any governmental authority (whether federal, state, local, or tribal) on the Services. To the extent that Customer’s purchase of the Services is tax exempt, Provider will not invoice Customer for tax provided that Customer gives Provider a properly executed tax exemption certificate within thirty (30) calendar days of the Effective Date. For the avoidance of doubt, this Section does not govern taxes based on Provider’s net income.

8. Upgrades:

• Customer acknowledges and agrees that the Software, Documentation and other materials that may be made available by Provider as part of the Software may be updated and modified from time to time, in Provider’s sole and reasonable discretion. Upgrades to the Software that Provider makes generally available to its clients will be made available to Customer at no additional charge; this does not include optional features or different versions of the Software for which Provider has a separate charge.

9. Provider Subcontractors:

• Provider may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”).

10. Backup:

• Customer is solely responsible for maintaining a copy and backup of Customer Data. Provider shall not be responsible for maintaining a copy and/or backup of Customer Data. PROVIDER IS NOT LIABLE FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.

11. Feedback:

• If Customer or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider on Customer’s behalf, and on behalf of its Authorized Users, and shall cause its contractors to assign, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.

12. Term and Termination:

• Term: This SaaS Agreement begins on the Effective Date specified above and will continue for the initial term specified in the Order (the “Initial Term”) unless terminated earlier pursuant to the provisions in this Section 12. At the end of the Initial Term, this SaaS Agreement will automatically renew for additional twelve (12) month renewal terms (each a “Renewal Term”) at Provider’s then current-rates or as otherwise agreed upon in writing by the Parties unless terminated earlier pursuant to the provisions in this Section 12. Each Party may give the other Party written notice of non-renewal of this SaaS Agreement no later than thirty (30) calendar days before the expiration of the then-current Initial Term or Renewal Term.
• Suspension and Termination:
  • Provider may directly or indirectly, and by use of Provider’s Disabling Device or any other lawful means, suspend or terminate Customer’s or any Authorized User’s access to or use of any portion or all of the Services, without incurring any resulting obligation or liability if:
    • Provider believes in its sole discretion that Customer or any Authorized User has failed to comply with any term of this SaaS Agreement, or accessed or used the Software beyond the scope of or for a purpose not authorized under this SaaS Agreement;
    • Customer or any Authorized User has failed to comply with any term of the Processor Terms or Processor requests such a suspension or termination;
    • Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities;
    • Customer becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; makes or seeks to make a general assignment for the benefit of its creditors; or applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;
    • any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Software.
  • Customer may terminate this SaaS Agreement, effective on written notice to Provider, if Provider materially breaches this SaaS Agreement, and such breach: is incapable of cure; or being capable of cure, remains uncured thirty (30) calendar days after Customer provides Provider with written notice of such breach.
• Effect of Termination: Upon final termination of this SaaS Agreement, Customer will no longer have access to the Services. Customer shall stop accepting new Transactions through the Services. Any funds in the Financial Services Provider’s custody (as the term is defined in the Statement of Work attached at Exhibit A hereto) will be paid out to Customer subject to the terms of Customer’s payout schedule as defined in the Processor Terms. Termination does not relieve Customer of its obligations as defined in this SaaS Agreement and Processor may elect to continue to hold any funds deemed necessary pending resolution of any other terms or obligations, including, but not limited to, chargebacks, fees, or refunds. Customer shall remain liable to Provider for any fees or fines, or other financial obligations incurred by Customer or through Customer’s use of the Services prior to termination. The termination or expiration of this SaaS Agreement for any reason shall not affect a Party’s rights or obligations that expressly or by their nature continue and survive, including without limitation terms regarding Third-Party Products, use restrictions, payment, ownership, perpetual licenses, confidentiality, limitations of liability, indemnification, and disclaimers. At the Customer’s request, Provider will transfer to Customer a copy of the Customer Data upon termination of this SaaS Agreement for any reason via a secure transfer method to be mutually agreed upon by the Parties. Customer will reimburse Provider for any significant expense incurred in the preparation and transfer of the Customer Data (i.e., expenses over $100 and/or more than one hour of Provider’s time).

13. Representations and Warranties:

• Mutual Warranties. Each Party warrants to the other Party that:
  • it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; and
  • it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this SaaS Agreement.
• Additional Provider Warranties: Provider does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in Exhibit B. PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
• Additional Customer Warranties: Customer warrants that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and processed in accordance with this SaaS Agreement, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law. Customer warrants that it will comply with all laws, rules, and regulations applicable to its use of the Services (including, without limitation, those governing financial services, consumer protections, unfair competition, anti-discrimination, or false advertising). Without limiting the foregoing, Customer warrants it will comply with all applicable laws and rules in connection with Customer’s collection, security, and dissemination of the personal, financial, and Transaction information of consumers and is compliant with the applicable Payment Card Industry Data Security Standards.

14. Warranty Disclaimer:

• EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 13, THE SOFTWARE, SERVICES, AND DOCUMENTATION ARE PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. PROVIDER WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR THE ACCURACY OF DATA PROVIDED BY CUSTOMER, INCLUDING WITHOUT LIMITATION CUSTOMER DATA.

15. Indemnification:

• Provider Indemnification:
  • Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this SaaS Agreement, infringes or misappropriates such third party’s US intellectual property rights provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
  • If a Third-Party Claim is made or appears possible, Customer agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this SaaS Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
  • This Section 15(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; (C) Customer Data; (D) Third-Party Products; or (E) Customer’s Indemnification obligations set forth in Section 12(b) below.
• Customer Indemnification: Customer shall indemnify, defend, and hold harmless Provider and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee resulting from any Action by a third party (other than an Affiliate of a Provider Indemnitee) to the extent that such Losses arise out of or result from, or are alleged to arise out of or result from:
  • Customer Data, including any processing of Customer Data by or on behalf of Provider in accordance with this SaaS Agreement;
  • any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Provider’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider;
  • allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this SaaS Agreement; or
  • negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this SaaS Agreement.

Customer may not settle any Action against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Action or to participate in the defense thereof by counsel of its own choice. THIS SECTION 15 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

16. Limitation of Liability:

• IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS SaaS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS SaaS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, EXCEED THE LESSER OF EITHER THE ACCRUED PLATFORM SERVICES FEES COLLECTED BY PROVIDER DURING THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO SUCH DAMAGES, LOSSES, CLAIMS OR CAUSES OF ACTION OR FIFTY THOUSAND DOLLARS $50,0000.

17. Confidentiality:

• In the performance of this SaaS Agreement, each Party may disclose to the other Party certain Proprietary information, as defined below.
  • “Proprietary Information” means any and all nonpublic information, whether disclosed in writing, orally, or by any other medium, whether marked as “confidential,” “proprietary,” or not, disclosed to the Receiving Party by or on behalf of the Disclosing Party, including, but not limited to: (A) information, by its nature, recognizable as confidential information to a reasonably prudent person; (B) all financial, customer, vendor, supplier, employee, or other business information; (C) information relating to trade secrets (as defined by applicable law), trademarks, service marks, patents, or copyrights, or any applications therefore of the Disclosing Party; (D) information relating to existing or contemplated products, services, technology, processes, manuals, computer systems, and/or software of the Disclosing Party; (E) information relating to business plans, sales or marketing methods, methods of doing business, customer usages and/or requirements, and vendor or supplier information of Disclosing Party; (F) existence of this SaaS Agreement and all matters discussed or negotiations relating to this SaaS agreement; (G) all copies and reproductions of any of the foregoing; and (H) all analyses, compilations, notes, studies, or other documents disclosed to or prepared by or on behalf of the Receiving Party to the extent they contain, reflect, or are based upon or derived from any of the foregoing. “Proprietary Information” does not include any information that, at the time of disclosure: (i) is in the public domain; (ii) was in the Receiving Party’s possession before receipt from the Disclosing Party; (iii) is or becomes a matter of public knowledge through no fault of the Receiving Party; (iv) is rightfully received by the Receiving Party from a third party without a duty of confidentiality; or (v) is independently developed by the Receiving Party without reference to Proprietary Information.
  • “Disclosing Party” means the party disclosing any Proprietary Information hereunder, whether such party is the Provider or the Customer and whether such disclosure is directly from the Disclosing Party or through the Disclosing Party’s employees, contractors, or agents.
  • “Receiving Party” means the party receiving any Proprietary Information hereunder, whether such party is the Provider or the Customer whether such disclosure is received directly or through the Receiving Party’s employees, contractors, or agents.
• The Receiving Party acknowledges and agrees that the Proprietary Information of the Disclosing Party will remain the sole and exclusive property of the Disclosing Party or a third party providing such information to the Disclosing Party. The disclosure of the Proprietary Information to the Receiving Party does not confer upon the Receiving Party any license, interest, or right of any kind in or to the Proprietary Information, except as provided under this SaaS Agreement. At all times and notwithstanding any termination or expiration of this SaaS Agreement, the Receiving Party agrees that it will hold in strict confidence and not disclose to any third party the Proprietary Information of the Disclosing Party, except as approved in writing by the Disclosing Party. The Receiving Party will only permit access to the Proprietary Information of the Disclosing Party to those of its employees or authorized representatives having a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations substantially similar to those contained in this SaaS Agreement. The Receiving Party will be responsible to the Disclosing Party for any third party’s use and disclosure of the Proprietary Information that the Receiving Party provides to such third party in accordance with this SaaS Agreement and written instructions of Disclosing Party. The Receiving Party will use at least the same degree of care it would use to protect its own Proprietary Information of like importance, but in any case with no less than a reasonable degree of care, including maintaining information security standards for such Proprietary Information as are commercially reasonable and customary for the type of Proprietary Information.
• If the Receiving Party is required by a governmental agency or law to disclose any of the Proprietary Information of the Disclosing Party, the Receiving Party must, if legally permissible, first give written notice of such required disclosure to the Disclosing Party, make a reasonable effort at Disclosing Party’s expense to obtain a protective order requiring that the Proprietary Information so disclosed be used only for the purposes for which disclosure is required, take reasonable steps to allow the Disclosing Party to seek to protect the confidentiality of the Proprietary Information required to be disclosed, and will disclose only that part of the Proprietary Information which, in the written opinion of its legal counsel, it is required to disclose.
• Each Party to this SaaS Agreement will immediately, and in any event within forty-eight (48) hours, notify the other Party in writing upon discovery of any unauthorized loss, access, or disclosure of the Proprietary Information of the other Party.
• The Receiving Party will not reproduce Proprietary Information in any form except as required to accomplish the intent of this SaaS Agreement. Any reproduction of any Proprietary Information by the Receiving Party will remain the property of the Disclosing Party and will contain any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the Disclosing Party.
• Upon termination or expiration of this SaaS Agreement, upon written request of the other Party to this SaaS Agreement, or when no longer needed by either Party for fulfillment of its obligations under this SaaS Agreement or applicable law, each Party will either: (i) promptly return to the other Party all documents and other tangible materials representing the other Party’s Proprietary Information, and all copies thereof in its possession or control; or (ii) destroy all tangible copies of the other Party’s Proprietary Information in its possession or control.
• Neither Party will communicate any information to the other Party in violation of the proprietary rights of any third party.
• If either Party to this SaaS Agreement should breach or threaten to breach any provision of this Section 17, the non-breaching Party, in addition to any other remedy it may have at law or in equity, will be entitled to seek a restraining order, injunction, or other similar remedy in order to specifically enforce the provisions of this SaaS Agreement. Each Party to this SaaS Agreement specifically acknowledges that money damages alone may be an inadequate remedy for the injuries and damages that would be suffered and incurred by the non-breaching Party as a result of a breach of any provision of this Section 17. In the event that either Party should seek an injunction hereunder, the other Party hereby waives any requirement for the submission of proof of the economic value of any Proprietary Information or the posting of a bond or any other security. In the event of a dispute between the Parties, the non-prevailing Party will pay all costs and expenses, including, but not limited to, reasonable attorneys’ fees, associated with resolving the dispute.
• Notwithstanding any expiration or termination of this SaaS Agreement, all of the Receiving Party’s nondisclosure and use obligations pursuant to this SaaS Agreement will survive for the greater of ten (10) years or the maximum period permitted by applicable law after expiration or termination with respect to any Proprietary Information received prior to such expiration or termination. With respect to trade secrets, nondisclosure and use obligations pursuant to this SaaS Agreement will continue for so long as such information continues to constitute a trade secret under applicable law.
• The provisions set forth in this Section 17 supersede any previous agreement between the Parties relating to the protection of any Proprietary Information as set forth herein.

18. Data Privacy and Security:

• Provider will have and maintain, throughout the Term, written privacy and security policies. Provider’s privacy policy will be accessible at Provider’s website. Provider reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. In the event that Customer Data contains “personal information,” as defined by applicable data privacy or security law, Provider shall use and disclose such personal information only for the purposes for which Customer provides personal information, or access to it, in accordance with this SaaS Agreement. Provider will not use or otherwise disclose or make available personal information for Provider’s own purposes without Customer’s prior written consent. Provider may aggregate, de-identify, or anonymize personal information and use such aggregated, deidentified, or anonymized data, which shall no longer be considered personal information, for its business purposes. Provider shall implement and maintain reasonable, appropriate technical and organizational measures to ensure a level of security for Customer Data commensurate with the Customer Data provided.

19. Independent Contractor:

• Each Party is an independent contractor and is independent of the other party. Under no circumstances will any employees of one Party be deemed the employees of the other Party for any purpose. This SaaS Agreement does not create a partnership, joint venture or agency relationship between the Parties of any kind or nature. This SaaS Agreement does not create any fiduciary or other obligation between the Parties, except for those obligations expressly and specifically set forth herein. Neither Party will have any right, power, or authority under this SaaS Agreement to act as a legal representative of the other Party. Neither Party will have any power to obligate or bind the other or to make any representations, express or implied, on behalf of or in the name of the other in any manner or for any purpose whatsoever contrary to the provisions of this SaaS Agreement. Each Party acknowledges that the relationship of the Parties hereunder is non-exclusive.

20. Notices:

• All notices, requests, demands and other communications hereunder will be deemed to have been duly given if the same shall be in writing and be delivered by registered or certified mail, postage prepaid or by overnight delivery service and addressed to the recipient’s address set forth in the Order. Either party may change its address for notices or other contact details by giving written notice to the other party in accordance with this Section.

21. Force Majeure:

• In no event will Provider be liable or responsible to Customer, or be deemed to have defaulted under or breached this SaaS Agreement, for any failure or delay in fulfilling or performing any term of this SaaS Agreement when and to the extent such failure or delay is caused by any circumstance beyond Provider’s reasonable control (a “Force Majeure Event”). Without in any way limiting the foregoing, a Force Majeure Event may include, but is not restricted to, acts of God or of a public enemy, government order, law, or actions, war, invasion, hostilities (whether war is declared or not), riots, fires, floods, epidemics or pandemics, mass health issues or disease, quarantine restrictions, strikes or labor difficulties, civil tumult, freight embargoes, natural disasters, unusually severe weather, a failure or disruption of utilities or critical electronic systems, Internet service provider failures or delays, acts of terrorism, mass shootings or other emergencies that may disrupt Provider’s operations.

22. Applicable Law:

• Any dispute regarding or arising under this SaaS Agreement, or the interpretation of this SaaS Agreement, will be subject to and resolved in accordance with the laws of the State of Arizona, without regard to its conflicts of laws principles. Any Action arising out of, or related to, this SaaS Agreement shall be instituted exclusively in the Superior Court of Arizona in Maricopa County, and any appellate court thereof. Customer waives any and all objections to the exercise of jurisdiction over Customer by such courts and to venue in such courts.

23. Dispute Resolution:

• In the event of any dispute, claim, question, or disagreement arising from or relating to this SaaS Agreement or the breach, termination or validity thereof, the Parties will first attempt to resolve the matter over a period of at least thirty (30) calendar days before resorting to formal dispute resolution, except that equitable remedies may be sought immediately. To this effect, they will consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both Parties.

24. Assignment:

• This SaaS Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by Customer without Provider’s prior written consent, but may be assigned by Provider without consent or other restriction.

25. Severability:

• If any provision of this SaaS Agreement shall for any reason be found invalid, illegal, unenforceable, or in conflict with any valid controlling law: (a) such provision will be separated from this SaaS Agreement; (b) such invalidity, illegality, unenforceability, or conflict will not affect any other provision hereof; and (c) this SaaS Agreement will be interpreted and construed as if such provision, to the extent the same shall have been held invalid, illegal, unenforceable, or in conflict, had never been contained herein.

26. Waiver:

• The waiver of a breach hereunder may be affected only by a writing signed by the waiving party and will not constitute, or be held to be, a waiver of any other or subsequent breach or to affect in any way the effectiveness or enforceability of the provision in question.

27. Amendment:

• Provider may amend this SaaS Agreement from time to time by sending Customer written notice thereof. Such amendment will be deemed accepted and become effective thirty (30) calendar days after such notice (the “Proposed Amendment Date”) unless Customer first gives Provider written notice of rejection of the amendment. In case of such rejection, this SaaS Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s Renewal Term following the Proposed Amendment Date (unless Customer first terminates this SaaS Agreement pursuant to Section 12). Customer’s continued use of the Services following the effective date of an amendment will confirm Customer’s consent thereto. This SaaS Agreement may not be amended in any other way except through a written agreement by authorized representatives of each Party. Customer recognizes and agrees that Provider’s privacy policy is not incorporated into this Agreement, and Provider may revise it at any time in its sole discretion with or without the procedures of this Section 27 and Provider may revise the SLA as set forth therein.

28. Merger and Integration:

• This SaaS Agreement and all additional terms incorporated herein contains the entire understanding between the Parties concerning the Services and supersedes any and all prior understandings, agreements, representations, and warranties, express or implied, written or oral, between the parties concerning the Services.

ORDER

1. Initial Term:

• [Specify date the Services go live (if this is later than the Effective Date) and the length of the Initial Term here]

2. Description of Services:

• Customer purchases the following Services:
  • Tour booking
  • PMS
  • POS

• The Services are delivered as a cloud-based solution design to improve project management efficiency.
• The Hogan PMS Services include the following features and functionalities:
  • Reservation management
  • Rate management and External Channels where applies
  • Inventory Management
  • User management, Permission and Roles management
  • Sales and marketing Reservation management
  • Daily Business Management through Night Audit with Financial Reporting to external Accounting(not Included)
  • Notification Management (Email / SMS)
  • Maintenance ticketing management
  • Housekeeping management
  • Reporting and Data Exports with option for Custom Reporting
  • Document management
  • Property Settings, Amenity and Attribute management
  • ( OTA ) Third party Integration APIs as specified in this Agreement
  • Vendor API management per request and subject to an additional Statement of Work to be agreed upon by the Parties
  • POS integrated with the Hogan PMS
  • Booking platform for tour and package sales integrated with the Hogan PMS

3. Customer Properties:

• The Parties acknowledge and agree that Customer and its Authorized Users will use the Services for managing and supporting Customer Properties. The Customer Properties are as follows: X.

4. Fees:

• Provider’s Platform Services Fees are assessed based on the following percentage(s) of the total value of a Transaction provided that it is a Customer Website Booking or On-Site Booking:
  • [PERCENTAGES]
  • Provider’s Platform Services Fees are only assessed for Transactions that constitute Customer Website Bookings or On-Site Bookings. Provider’s Platform Services Fees are not assessed and do not apply in the case a consumer makes a reservation and/or purchase of Customer’s accommodations, products and/or services on the platforms of third-party OTAs, which are integrated with the Services as identified in Section 10 of the SaaS Agreement.
  • For the avoidance of doubt, Provider does not charge on a subscription basis for access to the Services.

5. POS Equipment:

• Per Section 4(c) of the SaaS Agreement, Customer is responsible for obtaining and maintaining POS Equipment required to access the Services per Provider’s specifications.








Service Level Agreement

This Service Level Agreement (this “SLA”) is incorporated into the SaaS Agreement between Provider and Customer (“SaaS Agreement”).

Terms defined in the SaaS Agreement have the same meanings when used in this SLA. Further, as used in this SLA, calendar months and other timeframes are in the ______ time zone, and business days and business hours refer to the period from 8:00 a.m. to 6:00 p.m. on any day except Saturday, Sunday, or any federal legal holiday in the United States.

Provider shall exercise commercially reasonable efforts to achieve this SLA’s target service levels.

1. Monthly Uptime:

Provider undertakes to use reasonable efforts such that Monthly Uptime does not fall below 99.9% of the total minutes in any calendar month.

As used above:

• “Monthly Uptime” means the total minutes in the month minus the minutes of Downtime suffered during such month; provided Downtime of less than _____ minutes does not count for such purposes in the aggregate or otherwise.
• “Downtime” means any period during which Customer cannot log into the System, other than because of errors of Customer or its agents or failures of software or equipment operated by Customer or under its control. Notwithstanding the foregoing, Downtime does not include: (a) Scheduled Maintenance; (b) failures due to Force Majeure (as defined in Section 21) or (c) issues related to external Third-Party Products or other factors outside of Provider’s reasonable control. Downtime begins when Customer submits a Trouble Ticket.
• “Scheduled Maintenance” means any period of maintenance on the System, provided Provider has given Customer at least forty-eight hours advance notice of such maintenance. Provider will use commercially reasonable efforts to schedule downtime for routine maintenance of the Services between the hours of 2:00 AM and 4:00 AM on Sundays.
• “Trouble Ticket” means a written trouble ticket properly submitted through Provider’s customer portal.

2. Error Response and Remedy Times:

Time-frames below begin on Customer’s submission of a Trouble Ticket (as defined above in Subsection 1(e).

• Severity 1 (Critical): Major system outage or critical functionality failure affecting all users and financial impacting.
  Response Time: Within 1 hour.
  Resolution Target: Within 4 hours.
• Severity 2 (High): Significant impact on service performance affecting multiple users.
  Response Time: Within 2 hours.
  Resolution Target: Within 8 hours.
• Severity 3 (Medium): Minor functionality issues affecting some users with workarounds available.
  Response Time: Within 2 hours.
  Resolution Target: Within 12 hours.
• Severity 4 (Low): Cosmetic or non-critical issues.
  Response Time: Within 2 hours.
  Resolution Target: Within 2 business days.

Reporting: Customer shall report all incidents via the submission of a Trouble Ticket and provide details of the incident, including, a description of the incident, any error messages, and any steps to reproduce it.

Acknowledgment: Provider will acknowledge receipt of the Trouble Ticket within the specified Response Time.

Investigation and Resolution: Provider will diagnose and work to resolve the incident in accordance with the severity level targets above.

Communication: Regular updates will be provided to Customer until resolution.

3. Recovery Objectives:

• Recovery Point Objective (RPO): In the event of a system failure, data can be restored to within 1 hour prior to the incident.
• Recovery Time Objective (RTO): Provider will make commercially reasonable efforts to restore data and services within [TBD] hours of an incident notification.

Provider may revise this SLA by posting a new version to Provider’s website and providing written notice to Customer. However, during the then- current Term, Customer may reject any such version that on balance materially reduces Customer’s rights, provided Customer provides written notice of such rejection, disclosing the material reduction in detail, within thirty (30) calendar days of Provider’s notice of the revision.