WAYBLAZER, INC. ACCOMMODATION AI AFFILIATE PROGRAM AGREEMENT By checking the “Accept” or similar language box, you agree that the effective date (“Effective Date”), of the Accommodation Affiliate Program Agreement (“Agreement”) is the date on which you check such below box. This Accommodation Affiliate Program Agreement (“Agreement”) is made and entered into as (“Effective Date”), between WayBlazer, Inc. (“WayBlazer”), a Delaware corporation having a principal place of business at 9500 Arboretum Blvd. Suite L1, Austin, TX 78759, and you the customer] (“Customer”). This Agreement sets forth the terms pursuant to which Customer will be permitted to use WayBlazer’s web-­based software platform that provides reservation search functionality for hotels and other accommodations and delivers related information. We may modify these Terms, for any reason at any time, by posting a new version on Our Website;; these changes do not affect rights and obligations that arose prior to such changes. Your continued use of Our Website following the posting of modified Terms will be subject to the Terms in effect at the time of your use. Please review these Terms periodically for changes. If you object to any provision of these Terms or any subsequent modifications to these Terms or become dissatisfied with Our Website in any way, your only recourse is to immediately terminate use of Our Website. The parties agree as follows: 1. DEFINITIONS internally use a reasonable number of copies of the Documentation solely in connection with Customer’s use of the Service in accordance with this Agreement. 1.1 “API” means any application programming interface provided or made available by WayBlazer to enable Customer to access the Service. 2.4 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit, encourage, or authorize third parties to: (a) rent, lease, loan or otherwise permit third parties to use the Service, WayBlazer Data, or Documentation;; (b) use the Service to provide services to third parties (e.g., as a service bureau);; (c) circumvent or disable any security or other technological features or measures of the Service;; (d) attempt to derive the source code of, modify, or create derivative works of the WayBlazer Data or the Service, or any part thereof;; (e) make copies of the WayBlazer Data, the Service, or the Documentation;; (f) aggregate any WayBlazer Data to create databases or other compilations of the WayBlazer Data;; (g) publicly disclose or make available the API;; (h) implement or connect any API in or to any software other than as expressly required to interconnect with the Service;; (i) permit any “bot” or any other non-­person to use the Service;; (j) cache or store any search results;; nor (k) remove, alter, or cover any copyright notices or other proprietary rights notices placed or embedded on or in any part of the Service, Documentation, or WayBlazer Data. 1.2 “Booking Value” means the price paid by an End User for one or many hotel room(s) and /or other accommodations reserved via a Third Party Booking Site. For the avoidance of doubt, Booking Value does not include any taxes or other fees or surcharges, including sales, occupancy, value-­added, or other taxes and governmental charges. 1.3 “Customer Data” means any information, content, queries, or data provided by Customer to WayBlazer or uploaded, processed, or stored by Customer in or through the Service in the format provided by Customer. 1.4 “Documentation” means WayBlazer-­provided user documentation, in all forms, relating to the Service (e.g., user guidelines, on-­line help files, etc.). 1.5 “End User” means any customer or end user of the Service or Customer or any other person or entity who accesses or uses any website or mobile application of Customer. 2.5 Protection against Unauthorized Use. Customer will use reasonable efforts to prevent any unauthorized use of the Service and Documentation and immediately notify WayBlazer in writing of any unauthorized use that comes to Customer’s attention. If there is unauthorized use by anyone who obtained access to the Service, directly or indirectly, through Customer, Customer will be responsible for all such use and will take all steps reasonably necessary to terminate the unauthorized use. Customer will cooperate and assist with any actions taken by WayBlazer to prevent or terminate unauthorized use of the Service or Documentation. 1.6 “Service” means access to the WayBlazer Accommodation Affiliate Program, which leverages artificial intelligence to identify and dynamically merchandise hotels in context of a traveler and their trip preferences. The Service may be delivered via a WayBlazer hosted platform or via an API interface. This Service also provides for a click-­out that allows the End User to book the accommodation. 1.7 “Third Party Booking Site” means a third-­party vendor accessed via the Service who provides booking services for hotels and/or other accommodations listed on the Service. 2.6 Reservation of Rights. WayBlazer grants to Customer limited rights to the Service, WayBlazer Data, and Documentation under this Agreement. Customer will not have any rights to the Service, WayBlazer Data, or Documentation except as expressly granted in this Agreement. WayBlazer reserves to itself all rights to the Service, WayBlazer Data, and Documentation. 1.8 “WayBlazer Data” means any information, content, or data either developed, derived or licensed by WayBlazer, and used by the Service and/or provided by WayBlazer to Customer and/or End User through use of the Service in accordance with this Agreement, excluding Customer Data. 2. USE OF THE SERVICE 2.7 Feedback. If Customer provides any feedback to WayBlazer concerning the functionality or performance of the Service (including identifying potential errors and improvements), Customer hereby assigns to WayBlazer all right, title, and interest in and to the feedback, and WayBlazer is free to use the feedback without payment or restriction. 2.1 Use of the Service. Subject to the terms and conditions of this Agreement, WayBlazer grants to Customer a limited right during the term of this Agreement to access the Service solely as necessary to display the WayBlazer Data as permitted in Section 2.2 and in accordance with the Documentation. 2.8 License to Customer Data. Customer will provide WayBlazer with the Customer Data WayBlazer reasonably requests to provide the Service. Customer grants to WayBlazer a worldwide, non-­exclusive, perpetual, royalty-­free, fully paid right and license to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute Customer Data, in whole or in part, solely in connection with WayBlazer’s provision of the Service to Customer. WayBlazer may use queries and aggregated information related to End Users’ use of the Service to improve the Service. Customer represents and warrants that it has all rights and authority to provide WayBlazer the Customer Data and to grant to WayBlazer the rights to the Customer Data granted herein. 2.2 WayBlazer Data License. Subject to the terms and conditions of this Agreement, WayBlazer grants to Customer a limited, non-­exclusive, non-­sublicensable, non-­transferable (except as part of an assignment of this Agreement as permitted in Section 11.2), revocable license, during the term of this Agreement, to publicly display the WayBlazer Data as provided by the Service to End Users. 2.3 Documentation License. Subject to the terms and conditions of this Agreement, WayBlazer grants to Customer a limited, non-­exclusive, non-­sublicensable, non-­transferable (except as part of an assignment of this Agreement as permitted in Section 11.2), revocable license, during the term of this Agreement, to reproduce, without modification, and 1 3. PROPRIETARY RIGHTS equipment or software other than that which is consistent with the Documentation, or misused or abused. Upon notice by Customer to WayBlazer of a breach of this warranty, WayBlazer will either (a) repair or replace the Service, which may include the delivery of a commercially reasonable workaround;; or (b) if WayBlazer determines that repair or replacement is not commercially practicable, then terminate this Agreement. This Section 6.2 states WayBlazer’s sole and exclusive obligation, and Customer’s sole and exclusive remedy, for any non-­
conformity to the express limited warranty provided in this Section 6.2. 3.1 Ownership. Customer acknowledges that the Service, Documentation, and WayBlazer Data are the sole and exclusive property of WayBlazer and its suppliers, and contain WayBlazer’s confidential and proprietary materials. For clarity, Customer does not own indexes of the Customer Data not provided by Customer. 3.2 Third-­Party Products. Any third-­party products, services, or websites that are provided or made available by WayBlazer in connection with the Service or WayBlazer Data, including for example those provided by Third Party Booking Sites, are provided pursuant to the terms of the applicable third-­party, and WayBlazer assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any third-­
party products or services. 4. 6.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 6, WAYBLAZER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. WAYBLAZER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NONINTERFERENCE, ACCURACY, TITLE, AND NON-­INFRINGEMENT. WAYBLAZER DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICE, DOCUMENTATION, OR WAYBLAZER DATA. WAYBLAZER DOES NOT WARRANT THAT THE SERVICE, DOCUMENTATION, OR WAYBLAZER DATA ARE ERROR-­FREE OR THAT OPERATION OF THE SERVICE WILL BE SECURE OR UNINTERRUPTED. WAYBLAZER EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON CUSTOMER’S OR ITS END USERS’ USE OF THE SERVICE, WAYBLAZER DATA, OR DOCUMENTATION OR THE ACTS OR OMISSIONS OF ANY THIRD PARTY OR THE SERVICES OR PRODUCTS OF ANOTHER THIRD PARTY, INCLUDING ANY THIRD PARTY BOOKING SITE. REVENUE SHARE AND PAYMENT 4.1 Revenue Share and Payment. During the term of this Agreement, WayBlazer will pay Customer an amount equal to 60% of the amount received by WayBlazer from the transactions completed by End Users using the Service. WayBlazer will make such payments within 30 days of the date WayBlazer receives payment from the Third Party Booking Site. WayBlazer will hold any payments until the outstanding cumulative payment amount exceeds $50.00. 4.2 Taxes. Payments do not include, and are net of, any taxes or governmental charges of any kind that may be applicable. Customer will be responsible for, and will pay in a timely manner, all such taxes and charges. When WayBlazer has the legal obligation to pay or collect such taxes, the appropriate amount may be withheld from the payment to Customer. 5. 7. TERM AND TERMINATION 7.1 Defense. WayBlazer will defend Customer from any actual or threatened third-­party claim against Customer (I) that Customer’s use of the Service infringes or misappropriates any U.S. patent or copyright during the term of this Agreement and (ii) based upon WayBlazer’s violation of applicable law if: (a) Customer gives WayBlazer prompt written notice of the claim;; (b) WayBlazer has full and complete control over the defense and settlement of the claim;; (c) Customer provides assistance in connection with the defense and settlement of the claim as WayBlazer may reasonably request;; and (d) Customer complies with any settlement or court order made in connection with the claim. 5.1 Agreement Term. Unless terminated earlier in accordance with the terms of this Agreement, this Agreement will commence upon the Effective Date and continue for an initial term of 1 year. Thereafter, this Agreement will automatically renew for successive 1-­year renewal terms unless either party provides written notice of non-­renewal at least 30 days before the end of the then-­current term. 5.2 Termination for Convenience. Either party may terminate this Agreement for convenience by providing 30 days’ prior written notice to the other party. 7.2 Indemnification. WayBlazer will indemnify Customer against: (a) all damages, costs, and attorneys’ fees finally awarded against Customer in any proceeding under Section 7.1;; (b) all out-­of-­pocket costs (including reasonable attorneys’ fees) reasonably incurred by Customer in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without WayBlazer’s consent after WayBlazer has accepted defense of such claim);; and (c) if any proceeding arising under Section 7.1 is settled, all amounts paid to any third party as agreed to by WayBlazer in settlement of any such claims. 5.3 Termination for Material Breach. If either party fails to perform any of its material obligations under this Agreement, the other party may terminate this Agreement by giving the breaching party 30 days’ prior written notice;; provided, that the breach is not cured within such 30-­day period. 5.4 Termination Upon Bankruptcy. Either party may terminate this Agreement if the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within 30 days of filing. 7.3 Mitigation of Infringement Action. If Customer’s use of the Service is, or in WayBlazer’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a proceeding arising under Section 7.1(i), then WayBlazer may either at its sole option: (a) procure the continuing right of Customer to use the Service;; (b) replace or modify the Service in a functionally similar manner so that it no longer infringes;; or if, despite its commercially reasonable efforts, WayBlazer elects not to do either (a) or (b), WayBlazer may (c) terminate this Agreement or the infringing part of the Service. 5.5 Post-­Termination Obligations. If this Agreement is terminated for any reason: (a) any and all liabilities accrued prior to the effective date of the termination will survive;; and (b) Customer will immediately discontinue use of the Service, WayBlazer Data, and Documentation. 5.6 Survival. Sections 2.4, 2.6, 2.7, 2.8, 3, 5.5, 5.6, 6.3, 8, 9, 10, and 11 will survive any expiration or termination of this Agreement. 6. WAYBLAZER INDEMNIFICATION WARRANTIES AND DISCLAIMER 6.1 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms;; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement;; and (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound. 7.4 Exclusions. WayBlazer will have no obligation under this Section 7 for any infringement if any portion of the claim arises out of or is based upon: (a) the combination, operation, or use of the Service with a third-­party product or service;; (b) designs, requirements, or specifications for the Service required by or provided by Customer;; (c) use of the Service outside of the scope of the rights granted to Customer or in violation of the terms of this Agreement;; (d) Customer’s failure to comply with instructions or Documentation provided by WayBlazer;; (e) Customer Data;; (f) any modification of the Service not made by WayBlazer;; or (g) unauthorized use of the Service. 6.2 Service Warranty. Subject to Customer’s compliance with this Agreement, WayBlazer warrants to Customer that, when properly used, the Service will perform in all material respects as described in the Documentation. The terms of this warranty do not apply if the Service has been modified by Customer or a third party, used in combination with 7.5 Exclusive Remedy. THIS SECTION 7 STATES WAYBLAZER’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR THE ACTUAL OR ALLEGED INFRINGEMENT OF ANY THIRD-­PARTY INTELLECTUAL PROPERTY RIGHT BY OR IN CONNECTION WITH THE SERVICE. 2 8. CUSTOMER INDEMNIFICATION partnership, or franchise between the parties;; (b) imposing any partnership or franchise obligation or liability on either party;; or (c) prohibiting or restricting a party’s performance of any services for any third party. Neither party will represent to anyone that it is an agent of the other party or is otherwise authorized to bind or commit the other party in any way without prior authorization from such other party. 8.1 Defense. Customer will defend WayBlazer and its officers, directors, employees, and agents, from any actual or threatened third-­
party claim arising out of or based upon: (a) Customer’s or the End Users’ use of the Service or (b) infringement or misappropriation of any intellectual property right or other proprietary right by the Customer’s Data. WayBlazer will: (i) give Customer prompt written notice of any claim subject to this Section 8.1;; (ii) grant Customer full and complete control over the defense and settlement of the claim;; (iii) assist Customer with the defense and settlement of the claim as Customer may reasonably request and at Customer’s expense;; and (iv) comply with any settlement or court order made in connection with the claim. 11.2 Assignability. Customer may not assign this Agreement, including any of its rights, duties, or obligations under this Agreement without WayBlazer’s prior written consent, which consent will not be unreasonably withheld. Any attempted assignment in violation of this Section 11.2 will be void. WayBlazer may freely assign this Agreement. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. 8.2 Indemnification. Customer will indemnify WayBlazer and its officers, directors, employees, and agents, against: (a) all damages, costs, and attorneys’ fees finally awarded against WayBlazer in any proceeding under Section 8.1;; (b) all out-­of-­pocket costs (including reasonable attorneys’ fees) reasonably incurred by WayBlazer in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Customer’s consent after WayBlazer has accepted defense of such claim);; and (c) if any proceeding arising under Section 8.1 is settled, Customer will pay any amounts to any third party agreed to by Customer in settlement of any such claims. 9. 11.3 Subcontractors. WayBlazer may utilize subcontractors or other third parties to exercise its rights or perform its duties under this Agreement so long as WayBlazer remains responsible for all of its obligations under this Agreement. 11.4 Reference. Either party may refer to the other party, including the use of name and logo, in any press release, advertisement, or other public notice (including internet posting) stating Customer’s use of the Service. Any Customer reference to ‘IBM” or “Watson” in any of the foregoing requires WayBlazer’s prior written approval. Additionally, Customer will specifically: (a) permit WayBlazer to create and publish a case study describing in general terms the nature of Customer’s use of the Service;; (b) permit WayBlazer to issue and publish a press release containing a quotation from a representative of Customer announcing that Customer has purchased access to the Service from WayBlazer and the general context of the intended use;; and (c) allow Customer’s name and logo to be posted on WayBlazer’s website and in marketing and advertising materials identifying Customer as a Customer of WayBlazer. LIMITATIONS OF LIABILITY 9.1 Disclaimer of Certain Damages. NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS, LOSS OF GOODWILL, OR ANTICIPATED SAVINGS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. 11.5 Nonsolicitation. During the term of this Agreement and for a period of 1 year thereafter, Customer will not, directly or indirectly, employ or solicit the employment or services of a WayBlazer employee without the prior written consent of WayBlazer. 9.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO CUSTOMER BY WAYBLAZER DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE CLAIM. 11.6 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by commercial courier service, signature required, to the appropriate party at the address set forth in the preamble of this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 11.6. Notices are deemed when received. 9.3 Exclusions from Disclaimer and Liability Cap. THE LIMITATIONS OF LIABILITY IN SECTIONS 9.1 AND 9.2 DO NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 7 OR SECTION 8 OR A BREACH OF SECTIONS 2.1, 2.2, 2.3, 2.4, OR 2.5. 11.7 Force Majeure. If the performance of this Agreement or any obligation hereunder is prevented, restricted, or interfered with by any act of God, strike, or other labor dispute, terrorist act, earthquake, riot, act of war (declared or undeclared), governmental regulation imposed after the fact, communication line failure, failure of the public internet, denial of service or similar attack, power failure, fire, or other disaster, or any other cause or condition beyond its reasonable control, the party so affected will be excused from such performance and will not be liable for, or be considered in breach of or default under this Agreement on account of such prevention, restriction, or interference. 9.4 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY WAYBLAZER TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT. 11.8 Compliance with Laws. Customer will use the Service, WayBlazer Data, deliverables, and Documentation in compliance with all applicable laws and regulations. 11.9 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Texas, without reference to its choice of law rules. The provisions of the U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Travis County, Texas, in connection with any action arising out of or in connection with this Agreement. 10. CONFIDENTIALITY Neither party to this Agreement will disclose the terms of this Agreement, including any pricing terms, to any third party without the consent of the other party, except as required by securities or other applicable laws. Notwithstanding the above provisions, each party may disclose the terms of this Agreement: (a) in connection with the requirements of a public offering or securities filing;; (b) in confidence, to accountants, attorneys, banks, and financing sources and their advisors;; (c) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement;; or (d) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like. 11.10 No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer, nor will anything contained in this Agreement confer on, any person other than the parties and the respective successors or permitted assigns of the parties, any rights, remedies, obligations or liabilities. 11. GENERAL 11.11 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right 11.1 Relationship. Each party will be and act as an independent contractor (and not as the agent or representative of the other party) in the performance of this Agreement. This Agreement will not be interpreted or construed as (a) creating or evidencing any association, joint venture, 3 to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement. this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. No employee, agent, or other representative of WayBlazer has any authority to bind WayBlazer with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. WayBlazer will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any receipt, order, acceptance, confirmation, correspondence, or otherwise, unless WayBlazer specifically agrees to such provision in writing and signed by an authorized agent of WayBlazer. 11.12 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Service under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the applicable Service will immediately terminate. 11.13 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which will be construed as and constitute the same agreement. 11.14 Entire Agreement. This Agreement is the final and complete expression of the agreement between the parties regarding the subject matter of this Agreement. This Agreement supersedes, and the terms of 4