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HomeMy WebLinkAboutSoftware Agreement - The Flybook LLC - East Race Event Payment Software{��a� ---_ -- - -- i — _ - PROVIDER: THE FLYBOOK, LLC. (the "Provider") CUSTOMFR: South Bend Parks (the "Customer") EFFECTIVE DATE: 5/24/17 (the "Effective Date") Teens of Service BACKGROUND The Flybook is a custom-built sofhvare program for outdoor -based business owners that enable more efficient processes and business growth. It is a web -based p€atform located in the cloud and used to manage guide reservations (including staff, meals, and other logistics), lodging, and customer information. 1t is accessible to authorized managers, staff, guides, partners and guests on most Internet browsers on any compatible web -enabled computer or mobile device. The software provides automated functions such as itinerary generation, payment collection through a third -party payment processor, email confirmations and receipts, as well as a real-time calendar. In consideration of the premises and conditions of these Terms of Service (the "Agreement") and other good and valuable consideration, the receipt and total sufficiency of which is hereby acknowledged, the parties agree as follows: AGREEMENT 1. Definitions 1.1 In this Agreement: (a) "Administrative Access" means access to the Platform functionality and tools designed to assist in management of Customer's business, including functionality and tools for (a) reservation management, staff scheduling, inventory management, email campaigns, social media integration, and financial management, (ii) generating and viewing reports and data for financial, marketing and other business purposes; (iii) creating, modifying, and disabling Guest User accounts; (iv) creating events and lodgings that Guest Users can browse and reserve; (d) customizing certain settings and features ofthe Platform; and (e) utilizing any other features or functionality that Provider makes available to Administrative Users within the Platform. (b) "Administrative User" means individuals designated by Customer with Administrative Access to access and use the Platform solely for the Customer's internal business use and who have been supplied a login identification and password by the Customer. Only the Customer's officers, directors, employees, and independent contractors may be Administrative Users, unless otherwise agreed in writing by the Provider. (c) "Anonymized Data" means information, data, and statistics about individuals or transactions that cannot be used, alone or in combination with other data stored or Iransmitted as part of the same or a linked data set, to identify Customer or a particular individual, including Personal Data that has been de -identified and anonytuized and aggregated with data about other individuals and transactions. HAN'�CHAFT�b 790 SW Industrial Way Suite I01, Bend, Oregon 97701 p. 855.909.2665 e. info@theflybook.com (d) "Authorized User" means an Administrative IJserorGLies t User. (e) "Charges" means the licensing fees set forth in Schedule 3. (f) "Confidential Information" means, with respect to either party, its trade secrets and confidential information, including without limitation marketing plans, technical information, customer information, pricing, know-how, ideas, designs, drawings, Specifications, techniques, programs, systems, code, and processes. I-orclarity, the Documentation and information about the Platform shalt he deemed Cott frde:ntial Information of Provider. For further clarity, the Customer Materials shall be deemed Con fide ntial Information of Customer. (g) "Customer" means the individual or entity identified above who has purchased a valid license from the Provider to use the Platform for the Permitted Purpose in accordance with the terms of this Agreement. (h) "Customer Materials " means all works, data, info€mation, and materials, including without limitation Personal Data: (i) uploaded to, stored on, processed using, or transmitted via the Platform by or on behalf of the Customer or any Guest User by any person or application or automated system using the Customer's account or any Authorized User's neeo€mt;and (ii) otherwise provided by the Customer or its Authorized Users to the Provider in connection with this Agreement. (i) "Documentation" means the documentation produced by the Provider and made available to the Customer specitying how the Platfo€m lunetions and bow it should be used. 0) "Guest Access" means access to the Platform through Customer's website for the purposes of (a) viewing, making reservations, and paying for lodging, events, and activities offered by Customer; (b) creating and editing the user's own individual user profile; and (c) utilizing any other features or functionality that Flybook and Customer make available to Guest Users within the Platform. (k) "Guest User" means an individual natural person who is an actual or potential guest or customer of Customer whom Customer provides with Guest Access to the Platform through Customer's website for the purpose of viewing events and lodging and making reservations. (1) "Payment Card Data" means Cardholder Data (including, without limitation, Primary Account Number, cardholder name, expiration date, and Service Code) and Sensitive Authentication Data (including without limitation ft€llmagnetic stripe data or equivalent on a chip, CAV2/CVC2/CW2/C]D, P]Ns/PIN block), as such terns are defined by the PC[ Security Standards Council. (m) "Personal Data" means the personally identifying information of any person, including without limitation, the individual's name, telephone number, date ofbirth, address, nationality, hobbies, preferences, and an), other information aboutthe person. (n) "Permitted Purpose" means the Customer's internal business purposes including business scheduling, reservation scheduling, customer and employee management, and marketing and reporting purposes, and does not include any unintended (by the Provider) or fraudulent activities or uses, (o) "Platform" means the software platform known as The Flybook that is owned and operated by the Provider, and that is made available to the Customeras a service via the Internet under this Agreement. (p) "Support Services" means the support and maintenance services provided or to be provided by the Provider (or a third party on the Provider's behalf) to the Customer in accordance with Schedule 2. 790 SW Industrial Way Suite 101, Bend, Oregon 97701 p. 855,909.2665 e. info@theflybook.com (q) "Upgrades" means new versions of, and updates to, the Platform, whether for the purpose of fixing an error, bug or other issue in the Platform or enhancing the functionality of the Platform, as further defined below. All other capitalized terns used in this Agree€€tent will have the meanings applied to such terns in this Agreement. 2. Term This Agreement will be effective as ofthe Effective Date and shall continue in effect for the period ofthne set forth in Schedule 3, unless earlier terminated in accordance with Section 16 of this Agreement (the "Initial Term"). This Agreement will automatically renew for consecutive terms equal to the length of the Initial Term (each, a "Renewal Term"), unless either party notifies the other of its intent not to renew within thirty (365) days prior to the expiration of the then -current initial Term or Renewal Term. Unless otherwise agreed by the parties, the Charges and the terms and conditions ofthis Agreement shall govern each Renewal Term. The Initial Term and all Renewal Terms are collectively referred to herein as the "Term." 3. The Platform 3.1 Access, The Provider will make the Platform available to the Customer by setting up all account for the Cnsto€tier on tine Platform, and providing to the Customer login details for that account within three (3) business days following the Effective Date, 3.2 License Grant. Subject to the limitations set out in Section 3.3 and the prohibitions set out ill Section 3.4, and the other terms and conditions ofthis Agreement, the Provider hereby grants to the Customer a limited, nott-exclusive, non- transferable, non-subliceusable, non -assignable license, during tine Tenn, to do the following, ill each case for the Permitted Purpose in accordance with the terms ofthis Agreement and the Documentation: (a) access and use, and Permit its Administrative Users to access and use the Administrative Access tools of Platfornt; (b) integrate the Guest Access tools of the Platform with Customer's guest/consumer-facing website using the integration tools provided by Provider; and (c) provide Guest Users with Guest Access to the Platform only through Customer's guest/consumer-facing website. There are no implied licenses under this Agreement, and all rights not expressly granted in this Agreement are expressly reserved by fire Provider. 3.3 Authorized Users. Other than the Authorized Users, no person or entity may access or use the Platfornt without the prior express written consent ofthe Provider. Administrative Users must only use the Platform on behalfofthe Customer in accordance with this Agreement. Tire Customer acknowledges and agrees that all actions of Authorized Users and all actions by anyone using the Customer's account or any Authorized User's account shall be deemed to be actions of the Customer for which the Customer shall be liable. Customer tnay change, acid, or remove all Authorized User in accordance with the procedures specified by the Provider. Customer shall promptly disable the account ofany person who ceases to be an Authorized User because their employment with Customer terminates or they otherwise cease to be designated by Customer as an Authorized User, 3.4 Limitations oil Use. Customer shall, during and after the tern ofthis Agreement, comply with the following limitations: (a) Customer shall not permit any person other than its designated Administrative Users to use the Administrative Access tools of tile Platfornt. Customer shall not permit any person other than its designated Guest Users to use the Guest Access tools of tile Platform. (b) The Plattorn may not be used for any purpose other than the Permitted Purpose (c) The Platform may not be used for any fraudulent activities. HANDACT?AFTFD 790 SW Industrial Way Suite 101, Bend, Oregon 97701 p. 855.909,2665 e. info a theflybook.co€n (d) The Platfonu may not be used in any way this is €mlawfid, illegal, fraudulent, harntfi€1, or o(lie rwise prohibiter! by the terms and conditions ofthis Agreement. By way ofexample, and not as a complete list, the Customer agrees that it and its Authorized Users will not, directly or indirectly, do any ofthc fallowing or assist or permit any third party to do any ofthe following: (i) distribute or make available the Platform andlor Documentation to any third party, except as expressly authorized herein: Platform; (d) reverse engineer, deconnpile, disassemble, translate or othetivise attempt to discover the source code for the (iii) alter or tamper with the Platform and/or Documentation in any way; (iv) attempt to defeat any security mcasures that Provider may take to protect the con fide utiality and proprietary nature ofthe Platfo€7n; (v) remove, obscure, conceal, or alter any marking or notice of proprietary rights that may appear oil or in the Platform and/or Documentation,, (vi) use Personal Data in any way other than in accordance with the relevant individual's consent and in compliance with all applicable laws and regulations and Customer's own privacy policy; (vii) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Platform or any part thereof; (viii) except as expressly permitted herein, copy the Platform, in whole or in part; (ix) use the Platform for purposes of competitive analysis ofthe Platform, the development ofa competing sott.vare platform, product, or service or any other purpose that is to Provider's commercial disadvantage. 3.5 Owne€shin. The Platfonn and Documentation constitute and involve the valuable intellechial property and proprietary rights ofthe Provider. There is no transfer to the Customer or any Authorized User ofany right, title or ownership its or ofthe Platform or Documentation, or any patent, copyright, trade secret, trade nattte, trademark, or other intellectual property rights or proprietary rights therein. It is understood and agreed that the Provider is the sole and exclusive owner ofall right, title, and interest in and to the Platform and Documentation. 4. Rights and Responsibilities 4.1 Hardware; Solhvare. The Customer acknowledges and agrees that it is exclusively responsible for the purchase, maintenance and service ofalthardware and software needed to access and use the Platform, as well as torpaying all necessary third -party access charges incurred while accessing and using the Platfor€tl, including but not limited to: Internet service and equipment to provide Internet service, and all computers, network, and other devices and system requirements required to access and use the Platfiornn. 4.2 feedback. The Provider shall be the sole and exclusive owner of, and the Customer hereby assigns to the Provider Without compensation to the Customer (other than the access to the Platform granted to the Customer in this Agreement), all rights in any of the Customer's (or any Authorized User's) recommended or requested changes, modifications, upgrades, or enhancements to the Platfor€n or other feedback about the Platform (collectively, the "Feedback"). The Customer nANDA CRAFTED OREGON 790 SW Industrial Way Suite 101, Bend, Oregon 97701 p. 855.909.2665 e. info@theflybook.com acknowledges and agrees that (a) the Customer's, andlor any Authorized User's, Feedback does not contain the confidential or proprietary information of the Customer, the Authorized User, or any third party; (b) the Customer or the Authorized User is not under any obligation of confidentiality, express or implied, xvith respect to the Feedback; (c) the Provider may already have similar changes, modifications, upgrades, or enhancements under consideration or development; and (d) the Provider is under no obligation to consider or implement the Feedback. 5. Support Services and Upgrades 5.1 Support Services. 'rhe Provider agrees to provide the Support Services set forth in Schedule 2. "r€te Provider may sub- contract the provision or delivery ofany ofthe Support Services without obtaining the consent ofthe Customer. 5.2 Upgrades, The Provider may, at any time and in its sole discretion, replace, modify, alter, improve, update, enhance, or otherwise change the Platform and/or Documentation (collectively, "Upgrades"), as further set forth in Schedule 2. In the event that Upgrades are developed by the Provider, the Provider may, in its sole discretion, make such Upgrades available to the Customer under the terms ofthis Agreement, so long as the Customer has paid the Charges and any additional required fees for use of such Upgrades. in the event the Provider makes such Upgrades available to the Customer and the Customer pays all required fees for use thereof, Upgrades shall be considered the "Platform" or "Documentation," as the case may be, tinder this Agreement, and shall be subject to the terms and conditions of this Agreement. Notwithstanding the foregoing, the Customer acknowledges and agrees that the Provider is not required to create or provide, nor does it agree that it will create or provide, any Upgrades for the Platform. 6. Customer Materials and Data Rights and Responsibilities 6.1 Customer Materials. The Customer hereby grants the Provider a worldwide, perpetual, irrevocable, non-exclusive, royalty-fi-ee, sublicensable (through multiple tiers ofsubticensing) license to use, reproduce, display, perform, and distribute, the Customer- Materials in any media tto%v known or hereinafter created and for the purpose ofperforming its obligations under this Agreement and as otherwise expressly permitted herein. 6.2 Backups. Customer is solely responsible for maintaining backups ofany Customer Materials, including Personal Data, stored using the Platform. Provider shall have no liability in the event ofany loss, destruction, or corruption ofCustomer Materials, including data, stored or transmitted using Elie Platform, Customer acknowledges and agrees that it will not have access to the Customer Materials uploaded to the Platform upon expiration or termination of this Agreement. Customer is solely respons ble for making copies ofany Customer Materials prior to expiration or termination of this Agreement. 6.3 Payment Processing. `rile Platform enables payment processing through tools provided by third party payment processors (see "Platform Specifications" below). Such tools include data fields that are clearly pre -designated by Provider for entry of payment card data to facilitate payment ('Pre -Designated Payment Fields"). Fields that are not clearly pre - designated for payment card data are not intended to be used to transmit or store Payment Card Data. Customer therefore agrees to use only Pre -Designated Payment Fields, and not any other fields, for en(ry, transmission or storage ofpaynient card data. Customer and its Authorized Users shall not create any custom fields for payment card data, and Customer shall not, and shall not pennit its Authorized Users or third parties to, enter payment card data into any data field other than Pre - Designated Payment Fields �vitltin the Platform, including any free -text field or custom field created by Customer. Provider may, but is not required to, search for and delete any Payment Card Data it discovers or finds is being stored by or on behalf of Customer in data fields other than Pre -Designated Payment Fields. IfCustomer violates the restrictions set forth in this paragraph, then Customer's use of the Platform for storage or transmission of Payment Card Data shall be at Customer's HANDA CP.APTP) 790 SW Industrial Way Suite 10I, Bend, Oregon 97701 p. 855.909.2665 e. info@tlieflybook.com own risk and Provider shall have no liability to Customer with respect to such data, including its loss or unauthorized use or disclosure. 6.4 Anonvutized Data. Provider may, during and alter the term ofthis Agreement, (a) use and analyze the Customer Materials and Usage Data to generate Auonymized Data and (b) use, publish, and otherwise disclose Anonyntized Data without restriction, so long as the Auonymized Data is disclosed in a form in which it cannot be used to identil}y Customer or any particular individual(s), including Customer's travel guests, By way of example and without creating any limitation, Provider may analyze the Customer Materials along with data gathered from other sources to generate statistics and analytics about industry trends and the relative effectiveness of various types of marketing programs.. During and after the teen of this Agreement, Provider inay retain, use, and disclose Auonymized Data derived using the Customer Materials (but not the CustomerMaterials thetnsel,es). 6.5 Customer's Privacy Poli . Customer understands, agrees, and acknowledges that any Personal Data [bout Customer's actual or potential guests is being collected by or on behalf of Customer from individuals with whom Customer, rather than Provider, has an actual or prospective business relationship. Therefore, it is Customer's obligation, and not Provider's obligation, to provide any privacy notices or disclosures to, and obtain any consents from, travel guests and potential travel guests, as may be required by applicable lanes and regulations, with respect to Personal Data entered, collected, stored, or transmitted using the Platform. T Charges 8.1 Charaes. The Customer agrees to pay to the Provider the Charges set forth in Schedule 3 for use ofthe Platform. s.2 Taxes. All payments for the Charges to be made by the Customer to the Provider under this Agreement are exclusive of all taxes, and the Customer shall pay all total, state, and federal taxes, assessments, and charges (including without limitation sales and use taxes and any other applicable tax that now exists or that may arise in the future related to this Agreement) for the use of the Platform, excluding, however, any taxes based on the Providers income. If the Provider has the legal obligation to pay or collect taxes for which the Customer is responsible under this Section 8, the appropriate amount will be invoiced to and paid by the Customer. 8.3 Paynnent Due Date. Unless otherwise provided in Schedule 3 or elsewhere in this Agreement, the Customer's credit card shalt be charged automatically pursuant to the billing cycle set forth in Schedule I. The Custoliter will reimburse the Provider for all reasonable costs incurred (including without limitation reasonable attorneys' fees and costs) in collecting past -due amounts owed by the Customer to the Provider. Notrvithstandi€ng anything to the contrary in this Agreement, ifa charge to Customer's credit card is declined and the Customer does not provide an alternative form of payment within thirty (30) days of the date of the invoice, Customer's account will be considered delinquent, and the Provider shall have the right to suspend the Customer's access to and use of the Platform or terminate this Agreement, in the Provider's sole discretion, in addition to pursuing of the Provider's other rights or remedies. 8. Access Rights and Data About Platform Usage 9.1 Access Rialits. The Provider shall have the right to access the Customer's and any Authorized User's account from time to lime to respond to service or technical problems or to eusure compliance wilh the tenns and conditions ofthis Agree€vent. Suclt access will be reasonable in scope and duration and will not unreasonably interfere with the Customer's access or use ofthe Platform. HANDCPAFTEDJ OREGON 790 SW Industrial Way Suite 101, Bend, Oregon 97701 p. 855.909,2665 e. info @ theflybook,cotn 9.2 Data About Platform Usage. The Provider automatically collects and stores information about the Customer's use of the Platform (the "Usage Data"), such as dates and times of use by each Authorized User, activities conducted using the Platform, the type ofNveb browser used to access the Platfor€n, the operating system/platfonu the Customer is using, the Customer's IP address, and the Customer's CPU speed. The Provider may use Usage Data for any purpose reasonably related to providing and improving the Platform. For example, the Provider may use the Usage Data forbilling purposes, to track trends and statistics, for maintenance and technical support purposes, to improve the Platform, and to monitor compliance with this Agreement. 9. Representations and Warranties 10,1 Customer Representations and Warranties. The Customer represents and warrants to the Provider tliat: (a) it has the legal right and authority to enter into and perform its obligations under this Agreement; (b) it has the legal right and authority to grant the license granted to the Provider under Section 6 and make the assignment made under Section 4.2 above; and (c) its and its Authorized Users' use of the Platform, Documentation, and Customer Materials will not violate any applicable laws, statutes, ordinances, or regulations. 10.2 Provider Representations and Warranties. The Provider represents and warrants to the Customer that, during the tetra ofthis Agreement: (a) it lifts the legal right and authority to enter into and perform its obligations under this Agreement; (b) it will perform its obligations under this Agreement with reasonable care and skill, and (c) it will rise its best c Worts to ensure that the Platform will be available to the Customer in accordance with the uptinie commitments specified in Schedule 2, 10. Customer Acknowledgments The Customer acknowledges and agrees that: (a) complex software is never wholly free fi-ont defects, errors and bugs, and that the Provider gives no warranty or representation that the Platform will be wholly free from such defects, errors and bugs or that the Pialtornt will be available 100% ofthe time or that Customer's access thereto will be uninterrupted; (b) the Customer, and not the Provider, are responsible for ensuring the compatibility of the Platform with any application, program or software not specifically identified as compatible in Schedule 1; (e) the Provider will not and (toes not purport to provide any legal, taxation, or accountancy advice under this Agreement or in relation to the Platform; and (d) the Provider is not responsible for payments processed, collected, or obtained using the third -party payment collection systems or services nrade available through the Platform. 11. Disclaimer ofWarranties EXCEPT AS SET FORTH 1N SECTION 10.2 OF THIS AGREEMENT, THE PLATFORM, DOCUMENTATION, AND ALL CONTENT AND SERVICES PROVIDED THEREIN ARE PROVIDED "AS IS" AND "AS AVAILABLE." EXCEPT ASSET FOR`IH IN SECTION 10.2, THE PROVIDER EXPRESSLY DISCLAIMS,'T'O THE"• MAXIMUM EXTENT PERMITTED BY HANDA CRAFTED 790 SW Industrial Way Suite 101, Bend, Oregon 97701 p. 855.909.2665 c, info@theflybook.com APPLICABLE LAW, ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, TLIE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, SATISFACTORYQUALITY, PRODUCTIVENESS, AVAILABILITY, CAPACFFY, TIMELINESS, ACCURACY, 'TITLE, AND NONINFRINGEMENT. ANY INFORMATION OR DATA TRANSMITTED THROUGH OR UPLOADEDTO TI-CE PLATFORM, INCLUDING WITHOUT LIMITATION PERSONAL DATA, IS DONE AT THE CUSTOMER'S OWN DISCRETION AND RISK, THE PROVIDER DOES NOT WARRANT THAT THE PLATFORM OR DOCUMENTATION WILL BE ERROR FREE, UNINTERRUPTED, OR FREE OF VIRUS ES, OR THAT ANY ERRORS WILL BE CORRECTED. Some jurisdictions do not allow the exclusion ofimplied warranties so, solely to the extent such law applies to you, theabove disclaimernuty not apply to you. 12, Limitations and Exch€sions of Liability IN NO EVENT WILL THE, PROVIDER BE LIABLE TOTHE CUSTOMER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, ENHANCED, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF BUSINESS INFORMATION OR DATA, BUSINESS INTERRUPTION, LOSS OF ANTICIPATED BENEFIT, COMPUTER OR DEVICE FAILURE OR MALFUNCTION, OR OTHER INTANGIBLE LOSSES (WHETHER BASED IN CONTRACT, TOR`I'(INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE) ARISING OUTOF TLIE USE OF OR INABILITYTO USE THE PLATFORM AND/OR DOCUMENTATION, EVEN IF THE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES SO, SOLELY TO THE EXTENT SUCH LAW APPLIES TO YOU, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT, HOWEVER, WILL THE PROVIDER'S TOTAL AGGREGATE LIABILITY FOR ANY CLAINI ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF (A)THE TOTAL AMOUNT PAID BY TLIE CUSTOMER 1'0 THE PROVIDER FOR USE OF THE PLATFORM DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT THAT GAVE RISE TO THE CLAIM, OR (B) US 500, 13. Indemnification The Customer agrees that it will indemnify, defend, and hold harmless the Provider and its officers, directors, agents, representatives, employees, successors and assigns for, fi-oni, and against any acid all claims, allegations, actions, damages, losses, awards, fines, liabilities, and costs (including without limitation reasonable attorneys' fees and costs) resulting from or arising out of (a) the Customer's or any Authorized User's violation of any law, statute, or regulation; (b) the Customer's or any Authorized Users use, collection, transmittal, transfer, or other processing of any Personal Data; (c) the Customer Materials: (d) the Customer's or any Authorized Users' use, sale, marketing, prornotion, and/or distribution of or provision of the Customer's goods or services; (e) the Customer's or any Authorized User's misuse of the Platform or Documentation; and/or (f) the Customer's or any Authorized User's violation of any provision of this Agreement. 14. Confidentiality 15.1 Use and Diselosure. During the Term, the Provider Crud the Customer may have access to and become acquainted with the Confidential httormation oftlie other. Except as otherwise provided for in this Agreement, neither party shall; (a) use the Confidential Information far any purpose other than exercise of its rights and performance of its obligations under this Agreement without the prior written authorization of the other party; or (b) disclose the other party's Confidential Information 1iAPID)CPArTF_r) OREGON 790 SW Industrial Way Suite 101, Bend, Oregon 97701 p. 85 5.909.2665 e. info@theflybook.com to any other person or entity for any purpose other than exercise ofits rights and performance of its obligations under this Agreement without the prior written authorization of tile disclosing party. 15.2 Exceptions. The confidentiality obligations imposed by this Agreenictil shall not apply to: (a) information that becomes part ofthe public domain through lawlu] means and without breach of any confidentiality obligation; (b) information subsequently and rightfully received by either party from a third party without any confidentiality obligation; (c) information that was known to and reduced to writing by the receiving party prior to the Effective Date ofthis Agreement, except in connection with a prior relationship between the parties; and (d) information that is independently developed by tine receiving party without use ofor reference to any Confidential Information ofthe disclosing party. Notwithstanding the restrictions contained herein, either party may disclose Confidential Information to the extent and only to the extent required by compulsory judicial or administrative process or by law or regulation, provided further that the receiving party first provides the disclosing party notice ofthe required disclosure and complies with any protective order or siniilar protection obtained by the disclosing party and provided that the receiving party only discloses as much of the disclosing party's Confidential Information as is require(] to be disclosed by the judicial or administrative process or the law or regulation, as informed by legal counsel; and (0 information that is the subiect of written permission to disclose between the parties. 15.3 Survival. The obligations concerning Confidential Information set forth in this Agreement shall survive the termination of this Agreement in perpetuity, regardless ofthe reason for such termination. 15. Termination 16.1 Ter iivalion. This Agreement and the license granted to the Customer hereunder may be terminated as follows: (a) Either party may terminate this Agreement immediately by giving written notice to (lie other party ifthe other party commits a breach ofor default under any term or provision ofthis Agreement, and: (i) the breach is not remediable, or (ii) file breach is remediable, but the other party fails to remedy the breach within thirty (30) days ofreceipt ofa written notice requiring it to do so. 16.2 Effect of Ex iration or Termination. In the event ofexpiration or termination ofthis Agreement, the parties agree as follows: (a) the license granted to the Customer under Section 3.2 will immediately and automatically terminate; (b) the Customer and all Authorized Users will immediately discontinue all use ofthe Platform and Documentation, and will have no right to access the Platform or to receive a copy ofany Customer Materials uploaded to the P]atfonn; (c) except as necessary to allow time Provider to use the Customer Materials as set lbrtli in Section 6 above, each party will return to the other party or destroy (and conf€rni such destruction in writing) all materials comprising or containing the Confidential Information ofthe other party, including all copies (including electronic copies which shall be destroyed), s€tninmaries, and excerpts ofsucli Confidential hiforcnation; (c) all the provisions ofthis Agreement will cease to have effect, save that the following provisions ofllmts Agreement will survive and continue to have eflect (in accordance with their terms or otherwise indefinitely): Sections 1, 3.4, 3.5, 4.2, 64,, 8- 15, 16,2, 17, and 18; (d) the Customer will not be reimbursed or relinided for any Charges or other amounts paid to the Provider under this Agreement, regardless ofthe reason for the expiration or termination ofthis Agreement; and HANDA CRAFTED 790 SW industrial Way Suite 101, Send, Oregon 97701 p. 855.909.2665 e, info a theflybook.eom (e) the expiration or termination of this Agreement will in no way rclie ve the Customer of its obligations to pay the Provider any Charges accrued under this Agreement prior to such expiration or termination, and any and all payment obligations of (lie Customer incurred prior to the date ofexpiration or termination shall immediately become due. (t) Unless otherwise specified in schedule 3 16. intellectual Property infringement and Misappropriation The Customer agrees to notify the Provider immediately ofany known or suspected unauthorized use ofor access to the Platform (including Customer's account or any Authorized user's account), the Documentation, or the Confidential ]nfortnation, of ofany allegation by a third party that the Platform, Documentation, Customer Materials, or Confidential Information infringes or misappropriates any third party's intellectual property rights. 18. Miscellaneous 18.1 Assie,nment. This Agreement and the Customer's rights and obligations hereunder are personal to the Customer and may not be assigned or delegated by the Customer without the prior written consent ofthe Provider, which may be withheld for any reason. Any attempt by the Customer to assign or delegate this Agreement or the Customer's rights or obligations hereunder without the Provider's prior written consent shall be void and of no force or effect. 18.2 Entire Agreement, This Agreement and the Schedules hereto (which are incorporated herein and trade part oflhis Agreement by this reference) set tirr€h the entire understanding of the parties with respect to the subject matter ofthis Agreement, and supersedes any and all prior and contemporaneous negotiations, understandings, and agreements, whetlterwritten or oral, between the pa€lies with respect to such subject €natter, 18.3 Binding Effect. ']`his Agreement will be binding upon the parties and their respective successors and permitted assigns, and wit{ inure to their benefit, 18.4 Amendment; Waiver. Unless and except as otherwise expressly provided in this Agreetttent, this Agreement tray be amended only by a written instrument signed by both parties, The waiver by any party ofa breach orviolation of all), provision of€his Agreement xvill not operate and may not be construed as a waiver ofany other provision or any subsequent breach ofthe same provision. No waiver will he binding Unless executed in writing by the party making the waiver. 18.5 Severability. Whenever possible, each provision oflhis Agreement shall be interpreted in such trtantter as to be effective and valid under applicable law. lfany term or provision of this Agreement is held to be invalid or unenforceable in any situation in any jurisdiction, such invalidity or unenforce ability shall not alte ct the validity or enforceability ofthe remaining ter€rts and provisions hereofor the validity orenforecability ofsuch term or provision in any other situation or in any other jurisdiction. [ripe final judgment ofa court ofcourperent jurisdiction declares that any terns or provision hereofis invalid or unenforceable, the parties agree that the court making (lie determination of invalidity or utienforceability shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a terns or provision that is valid and enforceable and that comes closest to expressing the intention ofthe invalid or unenforceable term or provision, and this Agreement shall be enforceable as so niodif€ed. 790 SW Industrial Way Suite 101, Bend, Oregon 97701 p. 855.909.2665 e. info@theflybook.com a WIN-& ""Aa,0011" 01 Ad -I u r "Ai-lo ill V, rN I" L I 0 1 17,f .3 ;.01 -111, 1 A.14� c TI -n i Id -I ?IUL Oil val yLlr. -.1 4.01 (4 7 v- -; Ak. I W LI -- F&-zlv no --- 4 NOW V io Ii4 11 "i m irl I M 9� r qw, Schedule 2 Support Services I. Support Services and Helpdesk 2.1 Unless o1henvise agreed by the parties in writing, the Provider agrees to provide the Customer the training and support services set forth athttps://theflybookhelp.zendesk.coitt/hc/en-us/articles/216813158-Support-Requirements-, which may be updated by Provider kom time to time. 2.2 Support can be obtained by clicking on "Contact l:lybook Support" from within the back end platform, by emaihng supportn thetlybook.com, or by directly contacting your account manager via phone or email. 2.3 The Provider will NOT under any circumstances enter reservations, collect or refund payments to the Customer's customers or clients, edit content, or change settings within the Platform on the Customer's or any Authorized User's behalf. 2. Response and Resolution Times The Provider Nvill provide a prompt response to questions submitted by the Customer. While the Customer will open receive an immediate response from the Provider, please allow up to one (1) full business day for a response. 3. Upgrades 4.1 The Customer acknowledges that from time to time during the Term the Provider may apply Upgrades to the Platform, and that such Upgrades may, subject to Section 4.2 ofthis Schedule 2, result in changes to the appearance and/or functionality ofthe Platform. 4.2 Provider may, in its sole discretion, decide which Upgrades to make available to Customer all similarly situated customers at no additional Charge, and which Upgrades shall be available to Customer and all similarly situated customers only at an additional charge. 4. Availability The Provider endeavors to provide uninterrupted access to the Platform, however, downtime does and will occur. The Provider will use its best efforts to minimize such downtimes and, when reasonably practicable, will provide the Customer with at least fourteen (14) days' advance notice of any scheduled service, Upgrades, or changes that will result in a change, reduction, or suspension of access to or use ofthe Platform or any of its features or functionality. 5. Back-up and Restoration Details about back-up and restoration ofthe Platform can be found: http://aws.amazon.com/corrsole/ HANDA CRAFTED 790 SW Industrial Way Suite 101, Bend, Oregon 97701 p. 855.909.2665 e. info a theflybook.com Schedule 3 Charges Fees: USD.$1 perguest InitialTerm: L year 790 SW Industrial Way Suite 101, Bend, Oregon 97701 p. 855.909.2665 e. info@tbe%lybook.coni 9ANDA CRAPFEU OREGON ff M�w -J",