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This Hospitality Solutions Partner Agreement is made and entered into as of the Effective Date in the signature block on an associated RedAwning Professional Hospitality Participation Agreement (the “PA”) by and between the Company identified on the PA (hereinafter referred to as the “Manager”) and RedAwning.com, Inc. (“RedAwning.com” or “RedAwning”). As used herein, the term “Agreement” includes the PA, all Exhibits and linked pages and any amendments and addendums to any of the foregoing, which by this reference are each incorporated herein as though fully set forth.

Recitals

  1. Manager is authorized to exclusively manage and take reservations for one or more short-term rental properties or rooms or glamping tents or other accommodations (together, “Properties”; each a “Property”), to be identified by Manager;
  2. RedAwning operates a worldwide, Internet-based property promotion, distribution, marketing, reservations, payments, guest solutions, and customer service platform that enables property owners and managers of short-term rental properties to market and book their properties for rental to guests (each rental, a “Booking”), and provide improved guest experience through add-on tools and solutions (all such services and solutions, together, the “Services”).
  3. RedAwning and Manager desire to offer a combined solution of RedAwning’s Services with Manager provided local management, accommodations and guest services (together, the “Combined Solution”), and make available such Combined Solution to Guests (as defined below), all in accordance with the terms of this Agreement.

Agreement 

Now therefore, in consideration of the mutual covenants and undertakings herein contained, the parties agree as follows:

    1. RedAwning Services. RedAwning shall provide Manager with the following Services, which Manager covenants and agrees are reserved exclusively to RedAwning to perform:
      1. RedAwning shall advertise and book the Properties for short-term rental as part of the Combined Solution, including without limitation, on web pages specifically devoted to each Property (each a “Property Page”) on RedAwning’s proprietary websites and RedAwning’s mobile App (“RedAwning Websites“), on a Manager specific Website built and hosted by RedAwning (“Manager Website”), on all major third party short-term rental distribution channels and other RedAwning distribution partner websites, and on such other channels as RedAwning may add (together, “Channel Partners“) and such additional promotional methodologies, if any, that RedAwning may deploy from time to time. Property Pages shall include a description of each Property, including amenities, photos, and other information provided by Manager or RedAwning, as the case may be (the “Property Description”), and such other information as may be reasonably available to RedAwning or Channel Partners.
      2. RedAwning shall host Property-specific calendars (the “Property Calendars”) that shall enable users to view each Property’s availability and make Bookings conditioned on such user agreeing to the cancellation policy set by Manager with RedAwning, and meeting any applicable requirements and/or conditions set forth in this Agreement and the RedAwning Rental Agreement which can be found at https://www.redawning.com/content/rental-agreement (the “Rental Agreement”) which is incorporated herein by reference. Users that make Bookings are herein defined as “Guests”.
      3. RedAwning shall provide additional services to be agreed upon with Manager under this Agreement. Such services may include pricing optimization, photography services, Amazon Connect phone implementation, or other services as agreed by the parties.
      4. For each Booking, RedAwning shall
        1. Collect and process in advance of any tenancy all required base rental amounts (“Base Rent”), cleaning and other required Manager fees (together, “Manager Fees“) (Manager Fees and Base Rent, together, “Gross Rent”), any room-related taxes and assessments (together, “Taxes“), and any additional charges or fees for services, goods and benefits provided by RedAwning and/or third-party vendors (together, “RedAwning Fees“) for the time period(s) selected by the Guest in accordance with (1) each Property’s then current Base Rent schedule, (2) applicable Tax regulations, and (3) the RedAwning Rental Policies (“Rental Policies”) set forth in the Rental Agreement, as such policies may be amended from time to time in RedAwning’s sole reasonable discretion.  If Manager has requested rate management by RedAwning, RedAwning will use dynamic rate optimization and revenue management solutions to set the optimum Base Rent schedule to maximize revenues for each Property, while Manager may set a minimum nightly rent and minimum stay periods, as well as override specific dynamic rates or minimum stay periods in its own discretion based on Manager goals and/or based on input from Hosts;
        2. Provide the Manager the Guest’s contact information received by RedAwning, such as email address and telephone number and, similarly, provide the Guest via email and the RedAwning mobile app Manager’s contact information;
        3. Pay credit card services fees and process any refunds due Guests for cancelled Bookings in accordance with this Agreement and the Rental Policies;
        4. In the event RedAwning cannot collect all or any portion of the Gross Rent, Taxes and/or Fees from a Guest through an authorization against such Guest’s credit card, RedAwning shall use reasonable efforts to contact the Guest and collect in advance of the Booking commencement date alternative payment. If such Guest is unable or unwilling to pay all required amounts, the Booking shall be cancelled according to its terms.
        5. For each Booking, if applicable, perform the Repair Obligation in respect to Covered Damage as defined and described in Section 6 below.
      1.  
    2. Rent Collection & Assignment. 
      1. RedAwning shall pay Manager, as consideration for a confirmed Booking, the Gross Rent and Taxes collected by RedAwning, less the Participation Fee (as defined below), Channel Marketing Fees (as defined below), credit card processing fees (credit card processing fees are three percent (3%) of the Gross Rent and Taxes), RedAwning Fees, and any amounts disputed by Guest (such adjusted amount, “Net Rent”). Manager’s right to payment of Net Rent accrues if and only to the extent: (i) RedAwning collects the related Gross Rent, Taxes and fees; and (ii) Guest’s right, if any, to dispute any charge or receive any whole or partial refund thereof has expired or is terminated.
      2. Manager hereby irrevocably assigns to RedAwning Manager’s right to collect and receive Gross Rent and Taxes from Guests for Bookings generated by the Services. The agreement between Manager and RedAwning set forth in this Section 2 is strictly an assignment of a limited right to collect and receive Gross Rent and Taxes and does not result in RedAwning assuming any other right or obligation of Manager in respect to the Properties. Manager acknowledges and agrees that RedAwning shall deposit Gross Rent and Taxes collected and received in respect to the Properties into a Stripe Connect account.
      3. RedAwning shall trigger Stripe Connect to remit to Manager via ACH deposit accrued Net Rent due and payable by RedAwning to Manager hereunder the sooner of the first business day after Guest check out or five (5) days after Guest check in.  If any jurisdiction requires a Channel Partner or RedAwning to pay any portion, or all, of the Taxes related to a Booking directly to that jurisdiction due to marketplace facilitator or other laws, then RedAwning shall deduct such Taxes from payments to Manager and notify Manager of such amounts.
      4. Manager acknowledges and agrees that RedAwning is only responsible for forwarding Net Rent to Manager. RedAwning is not responsible for any financial arrangements, tax liability or transfers between Manager and any other entity, person or governmental authority with an interest in or right to all or any portion of the Property, Net Rent, Taxes, or other amount in any way related to the Property or Booking activities herein contemplated, including without limitation, any Host, asset or onsite Manager, manager or owner association and/or taxing authority.  If Manager prefers RedAwning pay Hosts directly for each Booking, that option is available.
      5. In the event Manager takes or registers a direct Booking for a Property outside of RedAwning from any Guest during the Term of this Agreement, whether by any separate website, by phone, by email, in person or by any other means, Manager shall enter such Booking directly into the RedAwning system with RedAwning providing the same payment processing and other services for that Booking.
      6. If a Guest attempts at any time to dispute or chargeback, through its credit card issuer or otherwise, any payments previously collected in respect to a Booking, Manager shall fully cooperate with RedAwning and Guest to promptly resolve such dispute. In the event such dispute results in the reimbursement of all or any portion of the disputed amounts, RedAwning and Manager shall each contribute toward such reimbursement amount in the pro rata proportion of the amounts each party is entitled to receive in respect to the Gross Rent, Taxes and fees. The parties acknowledge and agree that RedAwning shall have sole discretion to resolve the Guest dispute and pay or return any amounts in satisfaction thereof. Manager shall reimburse RedAwning upon demand Manager’s pro rata share of the returned sum, which amount shall be satisfied by credit memo or direct payment at RedAwning’s election.
      7. Timely cancellations of Bookings shall result in (1) the return to the Guest by RedAwning of collected Gross Rent and Taxes amounts, if any, as provided in the Rental Agreement, and (2) distribution by RedAwning to Manager of any non-refundable collected amounts net of the Participation Fee, any applicable Channel Marketing Fees, and processing fees (“Net Collections“). In all cases, for customer service and channel management purposes, RedAwning may allow Guests to cancel Bookings within two (2) business days of making a Booking without charge, even if that policy is inconsistent with the Rental Agreement or Manager’s selected cancellation policy.
      8. RedAwning and its Channel Partners require that Guests be allowed to cancel their Bookings if there is a Force Majeure Event impacting multiple properties such as a (natural) disaster, hurricane, volcanic eruption, flood, national or local emergency, mandatory evacuation, terrorism, civil disorder, airport, port or depot closure or any other exceptional or catastrophic event, circumstance or emergency. In addition, certain Channel Partners maintain extenuating circumstances or similar policies that allow Guests to receive a partial or complete refund due to Guest-specific issues such as a death in the family. In the event of any cancellation or refund due to any of these requirements, RedAwning and Manager shall each contribute toward such reimbursement amount in the pro rata proportion of the amounts each party is otherwise entitled to receive under this Agreement with respect to the affected Booking’s Gross Rent, Taxes and fees.

    3. Participation Fee.  In consideration of the Services herein provided, RedAwning shall receive a fee (the “Participation Fee”) for each Booking equal to a percentage of the Gross Rent at the rate specified on the PA.  This Participation Fee shall be due and payable for all Bookings received or taken during the Term, including without limitation, Bookings through the Services, including the Manager Website, and Bookings taken or received by the Manager directly over the phone, via email, on or through any website owned or operated by Manager other than the Manager Website and whether or not connected to the Services, made personally by a Guest, or through any other means or method.

    4. Channel Marketing Fee.  RedAwning shall pay any fees related to Bookings taken via channel and distribution partners, including Bookings taken via RedAwning Websites (“Channel Marketing Fees”) as part of the Services, and such Channel Marketing Fees shall be added to the prices paid by Guests on such channels.  Channel Marketing Fees for channel partners, such as Airbnb, Booking.com, Expedia, Vrbo, and others, shall be the actual fees paid to such channels for marketing and distribution. Channel Marketing Fees for additional channels that bill on a per click or per impression basis, if agreed by the parties, shall be the actual amounts charged by such channels.


    5. Manager Obligations. Manager shall perform the following obligations:
      1. Manager shall obtain and maintain in good standing during the Term all required authorizations, licenses and approvals necessary or desirable to qualify and serve as the Manager of record for Properties participating in the Combined Solution.  If required, Manager shall execute property management agreements with Hosts which are consistent with the terms of this Agreement.
      2. Manager shall promote the Combined Solution on its public-facing website and at its public office locations, which efforts shall include, without limitation, (i) informing Hosts about the Combined Solution, (ii) endorsing the Combined Solution and RedAwning as Manager’s exclusive provider of the Services as part of Manager’s property management services, (iii) promoting the revenue opportunity that listing and renting Properties through the Combined Solution in partnership with RedAwning represents for Hosts.
      3. Establish and periodically update as necessary the required Property Description information for each Property for use on the Property Pages. Manager shall also include for display on the Property Pages, when available, recent digital images of each Property (together, “Photos”). RedAwning may also include digital images of such Property submitted to RedAwning by Guests or taken by RedAwning sourced photographers (together, “RedAwning Photos”).
      4. For each Booking, Manager shall provide to RedAwning at least seven (7) days in advance the check-in information for each Guest and deliver the Property in arrival-ready condition upon Guest’s arrival (Booking commencement date), including without limitation, fresh linens and a professional standard of cleanliness.
      5. The Property Description and Photos shall be at all times accurate, truthful, up to date and not misleading in all material respects. RedAwning and Guests shall have the right to rely on such data in all matters in any way related to Bookings and the Services hereunder. All Property appliances, utilities and advertised amenities must be fully functioning and operating at 100% capacity. The Property structure, fixtures, utilities, safety equipment, amenities and contents must meet applicable governmental and industry hygiene, security, safety and fire regulations, codes and standards. If the Property is deemed uninhabitable for safety, hygiene or maintenance reasons and Guest must be relocated to an alternative property, Manager must organize and pay for all related relocation expenses, including any additional rental charges. If the Property is technically habitable but is not fully consistent with the representations on the Property Page or does not meet reasonable expectations, Guest is entitled to financial compensation from Manager in an amount to be negotiated in good faith by Manager and Guest. In the event Manager fails or refuses to negotiate with the Guest promptly and in no event more than five (5) calendar days following request by RedAwning, RedAwning may, in its sole discretion and on Manager’s behalf, perform such negotiations and agree on and issue financial compensation. Manager shall reimburse RedAwning such compensation amount upon demand, which amount shall be satisfied by credit memo or direct payment at RedAwning’s election.
      6. Review and, via the RedAwning Portal, make any desired changes to the Base Rent schedule established by RedAwning for each Property, or directly provide such Base Rent schedule.  Establish and periodically update as needed fees for cleaning or other services, applicable Taxes, if any, and such additional fees and payments to be withheld from and/or paid by a Guest of the Property. Manager shall timely provide any updates to the Base Rent schedule to RedAwning, and both Guests and RedAwning shall each have the right to rely on the most recent Base Rent schedule in, respectively, renting each Property and performing the Services as herein contemplated.
      7. Pay when due all required Taxes, fees, assessments and other costs, if any, related to each Property, including any Bookings sourced through the Services.
      8. Establish and continuously update as necessary, the Property Calendars, including without limitation, entering the dates each Property is not available for Bookings for any reason whatsoever (together, “Black-Out Dates”), including for the use thereof by Hosts. Manager shall enter such Black-Out Dates on the Property Calendar immediately as they become known to Manager. In the event Manager’s failure to perform in accordance with this Section 5.h. results in a scheduling conflict between a Booking and a Black-Out Date, the Booking shall supersede and take precedence over the Black-Out Date. In no event may Manager cancel a Booking otherwise properly made by a Guest for personal use by a Host, their friends or family members.  If Manager is unable to honor a Booking for any reason, and Manager is unable to relocate the Guest to a comparable property, Manager will compensate RedAwning for any and all related costs to rebook the Guest into another similar or better property including any higher price of such property or other compensation to the Guests that RedAwning reasonably makes.
      9. Notify RedAwning immediately in the event (i) any Booking conflicts with a Black-Out Date, (ii) any issue, question, concern or dispute arises or is made known to Manager in respect to a Property, a Booking, a Guest or any other matter in respect to the Services, or (iii) of a casualty adversely affecting a Property subject to a Booking.
      10. Notify RedAwning, within 24 hours following the expiration or earlier termination of a Booking term (i) of any reasons to hold all or any part of any payment to Manager instead of refunding same to Guest, and (ii) of any Covered Damage or other claims to be submitted. In all instances, RedAwning shall have the right to rely on Manager’s instructions in respect to collected payments and refunds.
      11. Promptly respond to and use reasonable, good faith efforts to timely resolve any Guest complaint within six (6) hours of notice thereof. Such notice may be from Guest or RedAwning. If Manager is unwilling or unable to timely resolve a Guest complaint, then RedAwning may, but is not obligated to, in its sole reasonable discretion investigate and resolve the complaint on behalf of Manager, including reimbursement of an amount equal to all or any portion of the Gross Rent collected from the Guest (less the Participation Fee), which amount Manager hereby acknowledges and agrees that RedAwning may deduct by way of credit memo from any sums then or thereafter due Manager hereunder, regardless of source.
      12. At all times maintain the Properties in good, clean and habitable condition and in conformance with all applicable international, foreign, federal, state, local and association laws, regulations, ordinances, rules and covenants (together, “Laws”). In furtherance of this Section 5.l., Manager shall enter into and maintain, and timely pay and perform when due, its duties under, contracts with such third-party service providers to the Properties, including by way of example only, utilities, waste disposal, house cleaning, pool maintenance and yard maintenance services, as may be necessary or required to satisfy its obligations hereunder.
      13. At all times during the term hereof, insure that for each Property, the Host maintains sufficient, appropriate and customary types and amounts of insurance relating to each Property including: (1) general property damage insurance covering fire, flood and/or other casualty on a per occurrence basis; (2) liability for bodily injury on a per occurrence basis; and (3) comprehensive general liability insurance. Such policies of insurance shall include coverage for the third-party rental and Service activities herein contemplated.
      14.  Upon RedAwning’s request, provide proof to RedAwning’s reasonable satisfaction of Manager’s sole right, license and authority to rent each Property to third parties, enter into this Agreement to effect such rentals through RedAwning, and receive Net Rents as herein contemplated.

      15. Maintain at all times accurate and complete contact information on the applicable Manager Website and/or Services administration page(s), including without limitation, Manager’s name, full street and, if different, postal address(es), email address, daytime and evening phone numbers, and cell phone number. In addition, Manager shall include all such data for any authorized local agent of Manager with access to the Properties and authority to resolve any Guest questions or issues in respect to a then current Booking.

    6. Damage Protection Program

      1. Program Description. As a convenience and inducement to Guests to rent the Properties, Manager has agreed in the Property Rental Agreement with each Guest of a Property promoted by RedAwning via the Services to a partial waiver and release (the “Waiver“) of the Guest from liability for timely submitted claims solely and specifically limited to damage to the Property caused by the unintentional, non-breaching acts or omissions of the Guest or its authorized guests (the “Covered Damage“) in an amount not to exceed three thousand United States dollars (US$3,000) (the “Damage Protection Cap“). In exchange for the Waiver, the Guest is paying a fee set by RedAwning in its sole discretion, that is included as a RedAwning Fee for purposes of this Agreement. 

      2. Repair Obligation. For and in exchange for the payment of the RedAwning Fee, RedAwning hereby agrees to repair or replace the Covered Damage to the Property, and to indemnify Manager for the related actual direct costs of such repair or replacement (together, the “Repair Obligation“); provided, that in no event shall the Repair Obligation of RedAwning for a single Booking exceed the Damage Protection Cap.

    7. Proprietary Rights.

      1. The Services, the RedAwning Websites, the Manager Website, all Service functionality, products and services, the proprietary trademarks, service marks and logos of the RedAwning Group companies, the Property Pages, the Property Calendars, the RedAwning Photos, the advertising and marketing copy appearing anywhere on or in connection with the foregoing, the underlying software platform design, algorithms and related applications supporting the Services, all domestic and foreign patent, trademark and copyrights in any way related to the Services, and any updates thereto (together “RedAwning IP”) are the sole and exclusive property of RedAwning. RedAwning hereby grants to Manager, during the term of this Agreement, a limited, revocable, non-exclusive, royalty-free, worldwide right and license to access and use the RedAwning IP in strict conformance with the terms of this Agreement. All such use by Manager shall inure to the benefit of RedAwning, and Manager shall not acquire or retain any right in or to the RedAwning IP except to the limited extent herein set forth. Manager shall cease use of all or any aspect of the RedAwning IP immediately upon written demand by RedAwning, and the limited license herein granted shall cease immediately upon the expiration or earlier termination of this Agreement.

      2. Manager hereby grants to RedAwning, during the term of this Agreement, a limited, revocable, non-exclusive, royalty-free, worldwide right and license to publish the Property Description information, Photos, promotional creative authored by or on behalf of Manager and Manager’s owned and licensed trademarks, service marks and logos (together, “Manager IP”) to promote the Properties in strict conformance with the terms of this Agreement. Without limiting the generality of the foregoing, the license granted herein includes the right, without limitation, for RedAwning to reproduce the Manager IP in digital form, to edit and make derivative works of such materials, and to publish the foregoing on the RedAwning Websites, the Manager Website, in applicable Service and Channel Partner environments and in such other media as RedAwning may elect all for the purpose and in furtherance of promoting the Properties as herein contemplated. Additionally, Manager grants to RedAwning a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, non-terminable, transferable, sublicensable license to any underlying copyright in the subject of the RedAwning Photos in order for RedAwning to exercise its rights in the RedAwning Photos as herein contemplated. All use of the Manager IP by RedAwning shall inure to the benefit of Manager, and RedAwning shall not acquire or retain any right in or to the Manager IP except to the limited extent herein set forth. RedAwning shall cease use of all or any aspect of the Manager IP immediately upon written demand by Manager, and the limited license herein granted shall cease immediately upon the expiration or earlier termination of this Agreement.

    8. Communications, Confidentiality, and Data Security.

      1. Unless otherwise agreed by the parties in writing, all communications between RedAwning and Manager shall be by email.

      2. Except as provided in this Section 8, any confidential information or proprietary data provided by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) or developed and collected by the Disclosing Party under this Agreement shall be deemed the Disclosing Party’s Confidential Information (as defined below). Confidential Information shall be maintained in the strictest confidence and shall be protected by security measures consistent with the security measures the Receiving Party maintains in protecting its confidential and proprietary information. Confidential Information shall not be released by the Receiving Party to anyone except an employee or agent who has a need to know same, and who is bound by confidentiality obligations no less restrictive as those set forth herein, or as otherwise may be compelled by law or legal process. The Receiving Party will not use any portion of the Disclosing Party’s Confidential Information for any purpose other than for performing its obligations under this Agreement. Upon termination of this Agreement or the earlier demand of the Disclosing Party, all Disclosing Party Confidential Information in the possession or control of the Receiving Party, in whatever form or medium, shall be promptly, in the alternative, either destroyed by the Receiving Party or delivered to the Disclosing Party. Notwithstanding the foregoing, all data, including without limitation, personally identifiable information disclosed by Guests and/or gathered or obtained by RedAwning in the performance of this Agreement on behalf of Manager as well as the terms of this Agreement, including the financial terms hereof, are the sole and exclusive property of RedAwning and deemed the Confidential Information of RedAwning for all purposes.

      3. RedAwning shall at all times during the term of this Agreement prominently post on the RedAwning Websites and the Manager Website, and adhere to, a privacy policy that conforms to all applicable Laws.

      4. Manager agrees to comply with all applicable Laws with respect to data confidentiality, security and management.

    9. Property Casualty and Sale.

      1.  In the event a Property is materially damaged or destroyed prior to or during a Booking, Manager shall, at Guest’s sole election, (i) immediately relocate Guest to an alternative accommodation in relatively close proximity to the Property having comparable size, quality, appointment and amenities to the Property (an “Alternative Property”) at no additional cost to Guest; or (ii) return an amount equal to the Gross Rent for that period remaining in the Booking period as of the date of the Property casualty; provided, that Manager’s obligation to relocate Guest to an Alternative Property is enforceable only to the extent such accommodation is then reasonably available (cost is not a factor in determining the availability of an Alternative Property).

      2. In the event a Property is sold during the term of this Agreement, (i) the purchaser thereof must honor all Bookings pending as of the sale closing date; or in the alternative, (ii) Manager shall secure a comparable or better Alternative Property for each Guest affected by such sale at no additional cost to Guest.

      3. In the event a Property is listed for sale during the term of this Agreement, (i) in no event shall Property showings occur at any time during a Booking; and (ii) Manager shall notify RedAwning in writing that the Property has been listed for sale and identify the requested date of Property Page and other Property-specific promotional activity de-activation, if any.

    10. Exclusivity.  During the Term, RedAwning shall be Manager’s exclusive provider of vacation rental promotion and booking services.  Manager will present all Properties through the Combined Services and shall add to and make part of the Combined Services any Properties for which Manager assumes management responsibilities within the Term.
    11. Term and Termination.  The initial term of this Agreement shall be for a period of one (1) year from the Effective Date. The term hereof shall automatically renew for successive terms of one (1) year each upon expiration of the then current term. The initial term and any renewal term are herein the “Term”. This Agreement may be terminated as follows: (i)  by either party at any time during a renewal Term upon at least one hundred and twenty (120) days prior written notice; (ii) by the non-breaching party immediately upon written notice in the event of a breach by the other party of any material obligation hereunder that remains uncured to the non-breaching party’s reasonable satisfaction for a period of fifteen (15) days (in the case of monetary default) or thirty (30) days (in the case of non-monetary default) from the date of delivery to the defaulting party of written notice of default and demand for cure thereof; (iii) at any time by either party upon one hundred and twenty (120) days prior written notice if the other party to this Agreement isn’t meeting its basic obligations herein and is unwilling or unable to reasonably cure the concerns within sixty (60) days of such notice. Notwithstanding any termination of this Agreement, Bookings with stay dates starting and/or extending beyond the effective date of such termination shall be honored.
    12. Representations and Warranties.  Each party represents and warrants to the other that (i) it has full power and authority to enter into this Agreement; (ii) entering into and performance of this Agreement by such party does not violate, conflict with, or result in a material default under any other contract or agreement to which such party is a party, or by which it is bound; (iii) the party’s IP does not and shall not infringe, violate or misappropriate any third-party copyright, patent, trade secret, trademark, or other proprietary right.
    13. Indemnification.
      1. By Manager. Manager shall defend, indemnify and hold harmless RedAwning, its affiliated entities, and their respective directors, officers, shareholders, employees and agents from and against any claim, action, liability, loss and expense, including reasonable attorneys’ fees, alleged, incurred or asserted by a third-party (collectively “Loss”) relating to or arising out of Manager’s (i) gross negligence or willful misconduct, or (ii) substantial breach of this Agreement.
      2. By RedAwning. RedAwning shall defend, indemnify, and hold harmless Manager its affiliated entities, and their respective, subsidiaries, directors, officers, shareholders, and employees against any Loss relating to or arising out of RedAwning’s (i) gross negligence or willful misconduct, or (ii) substantial breach of this Agreement.

    14. Limitation of Liability.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER PARTY WARRANTS AND NEITHER SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE SERVICES, TELECOMMUNICATIONS SYSTEMS OR THE INTERNET, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER SIMILAR INJURY, DAMAGE OR DISRUPTION OF ANY KIND. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. EXCEPT FOR BREACHES OF A PARTY’S CONFIDENTIALITY OBLIGATION AND INDEMNITY LIABILITY, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY HEREUNDER SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY REDAWNING TO MANAGER HEREUNDER (OR, DURING THE INITIAL TERM, THE ESTIMATED AMOUNT TO BE PAID) DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE LIABILITY FIRST AROSE.

    15. Miscellaneous Terms
      1. The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. Except for assignments to affiliated entities or in connection with sales, mergers and similar transactions, this Agreement may not be assigned to any third party by either party without the prior written notice to and consent of the other party, which consent shall not be unreasonably withheld or delayed.
      2. If either party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of the party invoking this provision, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, wars, terrorism, strikes or labor disputes, fires, interruptions in telecommunications or Internet services or network provider services (each, a “Force Majeure Event”), such party’s performance shall be excused and the time for performance shall be extended accordingly, provided that the affected party promptly initiates all reasonably necessary steps to resume full performance. If a party’s performance is prevented or delayed for more than thirty (30) consecutive days due to a Force Majeure Event, then the other party may terminate this Agreement upon delivery of written notice to the non-performing party.
      3. In the event a dispute between the parties arises out of or relating to this Agreement, including with respect to any Bookings, Guests or sums billed, collected and/or distributed hereunder, the parties shall first attempt to resolve the dispute through informal good faith negotiations entered into promptly upon the request of a party. In connection with such process, each party shall share all non-privileged and/or confidential information relating to such matters reasonably requested by the other party. In the event such dispute has not been successfully resolved within 30 days of the parties’ initial dispute resolution conversation, the matter shall be submitted to binding arbitration for resolution. Such arbitration shall be conducted by the Berkeley, California offices of the Judicial Arbitration and Mediation Services, or its successor (“JAMS”). Arbitration shall be conducted by JAMS in accordance with applicable JAMS rules governing the resolution of commercial disputes, generally, provided that notwithstanding any contrary provision within the JAMS rules, the arbitrator shall determine the rights and obligations of the parties according to the substantive laws of the State of California. The parties shall share equally in the cost of the arbitration subject to the arbitrator’s discretion to allocate such cost among the parties in accordance with equitable considerations. Any award, which may include legal and equitable relief, will be final and binding and judgment may be enforced by any court of competent jurisdiction.
      4. The laws of the State of California shall govern the construction and enforcement of this Agreement, without giving effect to its choice of law provisions. The prevailing party in any suit or proceeding brought to interpret or enforce the terms of this Agreement shall be entitled to an award of all related costs and reasonable attorneys’ fees, and the fees of other professionals, incurred by the prevailing party in connection with such action.
      5. This Agreement may be signed in counterparts, which taken together shall constitute one Agreement. Copies of this Agreement in facsimile and .pdf format may serve as originals.
      6. This Agreement sets forth the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements and understandings, both oral and written, with respect to the same. Any modification or amendment of the provisions of this Agreement must be in writing signed by both parties hereto. A waiver of any right or obligation hereunder cannot be inferred by course of conduct but must, in each instance, be in a writing signed by the party to be bound. No terms, provisions or conditions of any Manager purchase order, invoice, acknowledgment or other business form that Manager may use, or any handwritten changes or notations by Manager on an RedAwning-provided form, including without limitation this Agreement, shall serve to alter, modify or have any effect on the terms of this Agreement and the parties’ resulting rights and obligations hereunder.
      7. Each party agrees that a breach of the provisions of this Agreement relating to the use or disclosure of the other party’s content, trademarks, or Confidential Information, will result in immediate and irreparable harm to the other party and that money damages alone would be inadequate to compensate the non-breaching party. Therefore, in the event of such a breach, the other party will be entitled to equitable relief, including without limitation, a temporary restraining order, temporary injunction or permanent injunction. The rights granted to the parties under this provision are in addition to any other remedies available to the parties under this Agreement, or common or statutory law.
      8. All notices, requests, demands and other correspondence (collectively “Notice”) hereunder shall be in writing and deemed delivered: (i) on the date Notice is by sent by facsimile or electronic mail with electronic confirmation of receipt thereof by the other party; (ii) one (1) business day after placing Notice with a national air courier service for delivery by next day air; or (iii) three (3) business days following placement of Notice in the US Mail, registered or certified, postage prepaid, addressed as follows:  
        1. If to RedAwning:
          Tim Choate, CEO
          RedAwning.com, Inc,
          5900 Hollis St. Suite S
          Emeryville, CA 94608
          tim@RedAwning.com
        2. If to Manager:
          Primary Contact Identified in the PA
      9. The parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party. Neither party shall hold itself out as an agent of the other party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.
      10. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the invalid or unenforceable provision will be limited or eliminated to the minimum extent necessary.
      11. The headings of the sections and subsections contained in this Agreement are inserted for convenience and are not intended to be part of or to affect the interpretation of this Agreement. References in this Agreement to “days” shall mean calendar days, unless otherwise specifically provided.
      12. In construing or interpreting this Agreement, the word "or" shall not be construed as exclusive, and the word "including" shall not be limiting. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party, and that ambiguities shall not be interpreted against the drafting party.
      13. Sections 8, and 12 - 15 of this Agreement shall survive the completion, expiration, termination or cancellation hereof. In addition, any provision that expressly states that it shall survive or which, by its nature, must survive the completion, expiration, termination or cancellation of this Agreement, shall survive the completion, expiration, termination or cancellation of this Agreement. For the avoidance of doubt, no fees shall accrue to Manager under this Agreement for Bookings made after the termination or expiration of this Agreement.
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IN WITNESS WHEREOF, by signing the PA or submitting the online version of the PA, Host hereby accepts and agrees to be bound by the terms of this Agreement.

Last Updated June 2022

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