Xplorie Experience Lite Standard Terms and Conditions

These Experience Lite Standard Terms and Conditions (the “Standard Terms and Conditions”) are incorporated into, and constitute material terms applicable to, each Experience Lite Agreement (each, the “Agreement”) executed by Xplorie and Lodging Provider as though fully set forth therein. To the extent that these Standard Terms and Conditions shall conflict with any provisions of the Agreement, the terms contained in the Agreement shall control. Any capitalized terms not otherwise defined herein shall have the definition given to such term in the Agreement.

1. Defined Terms:

a. “Activities” shall mean recreation, transportation, dining, concerts, events, entertainment, tours and attractions, and other similar activities not owned or operated by Lodging Provider.

b. “Commission” shall mean the amount collected by Xplorie from a guest staying in a Unit (individually, a “Guest” and collectively, the “Guests”) in consideration for admission to an Activity (also referred to collectively as the “Commissions”).

c. “Confidential Information” shall mean any non-public information obtained from the other Party that has been identified by the disclosing Party as confidential and/or proprietary at the time of disclosure or that a reasonably prudent person under the circumstances would expect to be confidential. “Confidential Information” does not include information, data or know-how that (i) is or becomes publicly available without breach of these Experience Lite Standard Terms and Condition, the Agreement, or any other agreement between the Parties; (ii) can be shown by documentation to have been known to the receiving Party prior to its receipt from the disclosing Party; (iii) is rightfully received from a third Party who did not acquire or disclose such information by a wrongful or tortious act; (iv) can be shown by documentation to have been developed by the receiving Party without reference to any Confidential Information; or (v) that the receiving Party becomes legally obligated to disclose to a governmental entity with jurisdiction over it (subject to the notice requirements as set forth in the Agreement).

d. “Device” shall mean the actual electronic hardware device, including power cord, utilized to transmit the Voice Assistant, an example of which is the Amazon Echo Dot.

e. “Device Cost” shall mean the greater of (1) the current retail value of the Device, or (2) Forty-Nine and 99/100 Dollars ($49.99).

f. “Market Information” shall mean information regarding a particular lodging market area, including but not limited to Activities.

g. “Party” shall mean either Xplorie or Lodging Provider (collectively Xplorie and Lodging Provider may be referred to as the “Parties”).

h. “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.

i. “Virtual Concierge Platform” shall mean the Xplorie virtual concierge software as a service platform, all underlying software, all copyrights, patents, trade secrets and other intellectual property rights therein and associated therewith, and all such services, items and offerings therein (as such currently exists together with other related products and services which Xplorie and/or its partners may develop in the future) which enables the control and customization of certain Voice Assistants for use as a virtual concierge, and any embedded third party software, libraries, or other components which form a part of such platform.

j. “Voice Assistant” shall mean a digital assistant that uses voice recognition, natural language processing and speech synthesis to provide aid to users through phones and voice recognition applications (also referred to collectively as “Voice Assistants”).

k. “Xplorie Business” shall mean collectively the provision, whether by sale or otherwise, of Activities to Guests.

l. “Xplorie Content” shall mean all (i) Market Information generated by Xplorie and/or others acting on its behalf and stored at any time within the Virtual Concierge Platform. Unless expressly provided otherwise, Xplorie Content shall be deemed Confidential Information.

m. “Xplorie Intellectual Property” shall mean all Intellectual Property made, developed, conceived, first reduced to practice, fixed in any tangible medium of expression, or created independently by Xplorie and its partners with or without contribution from Lodging Provider during the Term, including, to the extent applicable, the Xplorie Content.

n. “Xplorie Marketing Activities” shall mean marketing efforts of Xplorie independent of the Agreement and the partnership with Lodging Provider, which may include, but are not limited to, the development of one or more websites, social media platforms, and purchasing third party consumer lists for direct and digital advertising.

2. Xplorie shall provide personnel or an automated system to perform bookings and schedule reservations for Activities for Guests (the “Concierge Service”). The hours of availability of the Concierge Service shall be 8 a.m. – 6 p.m. local time (for the Units) Monday – Sunday. During the Term, Xplorie shall have the exclusive right to sell and/or distribute Activities to Guests; provided, however that any Activities sold and/or distributed to Guests shall be subject to approval by Lodging Provider, which approval shall not be unreasonably withheld, conditioned, or delayed. Any consideration paid in connection with the sale and/or distribution of Activities shall be the sole and exclusive property of Xplorie.

3. Any payment due hereunder that is received after that day which is fifteen (15) days following receipt of an invoice for the same, shall be subject to a one and one-half percent (1.5%) per month late payment charge on the past due amount.

4. Implementation, Support, and Limited Warranty.

a. Xplorie and Lodging Provider will work together to configure the Devices and Virtual Concierge Platform utilizing remote resources. Lodging Provider shall provide Xplorie with necessary configuration-related information in a timely manner to ensure that mutually agreed implementation schedules are met.

b. Xplorie shall provide full support for the Virtual Concierge Platform, including technical support during normal business hours in the Pacific Time Zone, with maximum response times of one (1) hour per incident. Xplorie shall use commercially reasonable efforts to make the Virtual Concierge Platform available 24 hours a day, 7 days a week, except for necessary planned downtime, when Xplorie shall give Lodging Provider at least 48 hours’ notice. Xplorie shall provide the Virtual Concierge Platform in accordance with all applicable laws and government regulations.

c. Xplorie represents and warrants to Lodging Provider that the Virtual Concierge Platform will perform substantially as intended.

d. Xplorie’s sole obligation and Lodging Provider’s sole and exclusive remedy for any breach of the foregoing warranty is limited to Xplorie using commercially reasonable efforts to correct any non-conforming aspects of the Virtual Concierge Platform at no additional charge to Lodging Provider. In the event that Xplorie is unable to correct material deficiencies in the Virtual Concierge Platform arising during the Term, after using Xplorie’s commercially reasonable efforts to do so, Lodging Provider shall be entitled to terminate the Agreement as Lodging Provider’s sole and exclusive remedy. Xplorie’s obligations hereunder for breach of warranty are conditioned upon Lodging Provider notifying Xplorie of the breach in writing and providing Xplorie with sufficient evidence of such non-conformity to enable Xplorie to reproduce or verify the same. Lodging Provider expressly waives any and all other warranty claims of any nature whatsoever against Xplorie.

5. License and Intellectual Property.

a. During the Term, Xplorie grants to Lodging Provider a worldwide, royalty-free right and license to use the Virtual Concierge Platform in connection with providing the Voice Assistants for use by Lodging Provider’s Guests.

b. Xplorie reserves the right to modify the Virtual Concierge Platform in Xplorie’s reasonable discretion; provided, however, that no such modifications shall materially adversely affect its intended use as a virtual concierge.

c. Except as expressly agreed otherwise in writing, Lodging Provider shall not attempt to place any Market Information into the Virtual Concierge Platform, and Xplorie shall at all times have the right to modify, limit and otherwise restrict the content placed within the Virtual Concierge Platform. It is expressly understood that Xplorie has the right to utilize the Virtual Concierge Platform for the Xplorie Business.

d. Unauthorized use and/or copying of the Virtual Concierge Platform is prohibited by law, including United States and foreign copyright law. Lodging Provider shall not reverse compile, disassemble or otherwise convert the Virtual Concierge Platform into uncompiled or unassembled code.

e. The Parties will promptly notify each other of any and all actual or attempted infringements or violations by third parties of any of the intellectual property rights associated with the Virtual Concierge Platform. Lodging Provider will provide reasonable assistance to Xplorie in taking such action to enforce Xplorie’s rights against the parties infringing or violating such rights. The foregoing provisions of this Section shall apply with the same force and effect with respect to all copyrights, patents, trade secrets, common law claims, and other legally protectable intellectual property rights included within the Virtual Concierge Platform.

f. All Xplorie Intellectual Property will be the sole and exclusive property, including the entire right, title and interest, of Xplorie. Lodging Provider agrees not to obtain or claim any rights in or ownership interest to the Virtual Concierge Platform or the Xplorie Intellectual Property and agrees to comply with all copyright and other intellectual property rights notices contained on or in any information obtained or accessed by Lodging Provider through the Virtual Concierge Platform. Lodging Provider agrees to perform all acts that Xplorie may reasonably request to assist in obtaining the full benefits, enjoyment, rights, title, and interest in the United States and throughout the world, in the Xplorie Intellectual Property; provided, however, that Xplorie shall reimburse Lodging Provider for all actual out-of-pocket expenses incurred with regards to such assistance. Such acts shall include, without limitation, execution of documents, and the assistance in the prosecution of patents, copyrights, trademarks, and trade secrets.

g. Lodging Provider shall not represent that it has any proprietary interest in Xplorie, or its technology, trade secrets, or intellectual property, nor shall Lodging Provider attempt to reverse engineer or replicate the technology or access the proprietary computer code of Xplorie.


6. Third-Party Costs, Fees, and Commissions.

a. Xplorie shall be responsible for the payment of all third-party royalty or licensing fees associated with use of the Virtual Concierge Platform.

b. Xplorie shall have the exclusive right to monetize the Market Information, including, without limitation, the placement of Activities within the Virtual Concierge Platform. Any consideration paid in connection with the sale of Activities or their placement within the Virtual Concierge Platform shall be the sole and exclusive property of Xplorie.

7. Content and Data.

a. Data Security. As part of the Virtual Concierge Platform, Xplorie shall provide commercially reasonable administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of content residing or being stored therein. Lodging Provider acknowledges that such safeguards endeavor to mitigate security incidents, but such incidents may not be mitigated entirely or rendered harmless. Lodging Provider should consider any particular Xplorie-supplied security-related safeguard as just one tool to be used as part of Lodging Provider’s overall security strategy and not a guarantee of security. Both parties agree to comply with all applicable privacy or data protection statutes, rules, or regulations governing the respective activities of the Parties hereunder.

b. Guest Data. Lodging Provider and Xplorie shall work together to ensure that Xplorie is able on a daily basis to access a report that lists all Unit occupancies, which shall be transmitted via an application program interface (“API”) with Lodging Provider’s property management system. All costs associated with the development and maintenance of the above referenced API shall be borne by Xplorie. The daily report shall contain such guest information as Xplorie shall reasonably request, including, without limitation, the registered guest’s first and last name, Unit occupied, dates of arrival and departure, and reservation number (collectively, the “Guest Information”). Unless otherwise agreed to by Lodging Provider, Xplorie shall not use the Guest Information or other information obtained as a result of such guest’s patronage with Lodging Provider, including email addresses and cell phone numbers, for any purpose other than that which is reasonably necessary for Xplorie’s fulfillment of its obligations hereunder. Xplorie agrees not to share or sell the Guest Information, and Xplorie further agrees not to use such information for solicitation of the Guest. Notwithstanding this Section 7(b), however, information and customer data obtained through such Xplorie Marketing Activities shall not be deemed Guest Information.

c. Usage Data. Subject to the limitations set forth herein, data generated by the Virtual Concierge Platform in connection with use by Guests is the property of Xplorie. All such data associated with Devices provided to Lodging Provider hereunder is licensed to Lodging Provider for the duration of the Term. Examples of Usage Data includes, but is not limited to, records regarding interactions with Devices by users of the Virtual Concierge Platform, including, without limitation, specific topic inquiries and responses; provided, however, that the Usage Data specifically excludes the Guest Information. Usage Data is Confidential Information of Xplorie for purposes of the Agreement and these Standard Terms and Conditions.

8. Each Party shall keep confidential and not disclose to any third party any Confidential Information. It is expressly understood and agreed by the Parties that money damages may not be a sufficient remedy for any breach of this Section 8 and that the disclosing Party shall be entitled to specific performance, including, without limitation, injunctive relief, as a remedy for a breach by the receiving Party. Such remedy shall not be deemed to be the exclusive remedy for breach of this Section 8 but shall be in addition to all other remedies available at law or equity.

9. Marketing.

a. Each Party shall have the right to make use of the logo or name of the other for marketing purposes; provided, however, that the prior written authorization of the other is obtained prior to such use, which prior written authorization shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, however, nothing contained in these Standard Terms and Conditions shall give a Party an interest, license, or right to otherwise use the other Party’s intellectual property outside the scope of these Standard Terms and Conditions or for any purpose other than as specifically set forth herein. Except as otherwise specified, nothing in these Standard Terms and Conditions shall be construed as a transfer, sale, license, or waiver of either Party’s intellectual property. Neither Party shall take any action that would compromise or have the effect of diminishing any of the other Party’s intellectual property rights.

b. Nothing contained in these Standard Terms and Conditions shall be construed as conveying an authorization of Lodging Provider to use the logo, name or trademarks of the manufacturer of the Devices.

10. Term Renewal. Following the initial Term, the Agreement shall automatically renew for successive one (1) year periods, unless written notice of intent to terminate is given by either party to the Agreement no later than ninety (90) days prior to the annual renewal date of the Agreement.

11. Expiration/Termination.

a. Other than as set forth above, this Agreement may be terminated only for failure of either party to perform its obligations or meet the conditions required by this Agreement. In the event of a breach of the terms of this Agreement, the non-conforming party must be given written notice of its deficiency or non-performance and an opportunity to correct the deficiency or non-performance within (10) days of receipt of such notice. If such deficiency is not timely corrected, the other party may terminate this Agreement by written notice to the non-conforming party. In addition to termination for such breach, the parties hereby reserve all other remedies that may be available at law or in equity, and the prevailing party in any dispute arising under this Agreement shall be entitled to recover costs, reasonable attorneys’ fees, and any interest due under the terms of this Agreement, in addition to any award of damages. Further, it is acknowledged that the Lodging Provider’s breach or early termination of this Agreement will cause Xplorie to incur substantial economic damages and losses of types and in amounts which are impossible to compute and ascertain with certainty as a basis for recovery by Xplorie of actual damages, and that liquidated damages represent a fair, reasonable and appropriate estimate thereof. Accordingly, in lieu of actual damages for such breach or early termination, Lodging Provider agrees that liquidated damages may be assessed and recovered by Xplorie against Lodging Provider, without Xplorie being required to present any evidence of the amount or character of actual damages sustained, in an amount equal to 200 times the Xplorie Fees times the total number of Lodging Units subject to the Agreement at the time of termination (200 x Xplorie Fees x total Lodging Units = liquidated damages amount). Such liquidated damages are intended to represent estimated actual damages and are not intended as a penalty, and Lodging Provider shall pay them to Xplorie without limiting Xplorie’s right to terminate this Agreement for default as provided elsewhere herein.

b. Lodging Provider shall, within thirty (30) days of the expiration or earlier termination of the Agreement, return all Devices in Lodging Provider’s possession, either in Units or otherwise, to Xplorie via hand-delivery or nationally recognized carrier. Any Device not returned pursuant to this Section 11 shall be invoiced by Xplorie at an amount equal to the Device Cost, which invoice shall be due and payable within ten (10) days following Lodging Provider’s receipt of same.

c. All licenses granted Lodging Provider hereunder, together with access to the Virtual Concierge Service, shall terminate on the effective date of any termination or expiration of the Agreement. For purposes of clarification, all content stored within the Virtual Concierge Service shall be the property of Xplorie; provided, however, that such ownership shall not extend to Guest Data.

12. Acceptable Use.

a. Lodging Provider shall use commercially reasonable efforts at all times to ensure that no unauthorized Persons have access to the Virtual Concierge Platform, and to ensure that no Persons authorized to have such access shall take any action that would be in violation of these Standard Terms and Conditions.

b. Lodging Provider represents and warrants to Xplorie that Lodging Provider has the right to publish and disclose any content placed by Lodging Provider with the Virtual Concierge Platform. Lodging Provider represents and warrants to Xplorie that the content placed by Lodging Provider within the Virtual Concierge Service: (a) does not infringe or violate any third-party right, including but not limited to intellectual property, privacy, or publicity rights, (b) is not abusive, profane, or offensive to a reasonable person, and, (c) is not hateful or threatening.

c. Lodging Provider will not: (a) use, or allow the use of, the Virtual Concierge Platform in contravention of any federal, state, local, foreign or other applicable law, or rules or regulations of regulatory or administrative organizations; (b) introduce into the Virtual Concierge Platform any virus or other code or routine intended to disrupt or damage the Virtual Concierge Platform, or alter, damage, delete, retrieve or record information about the Virtual Concierge Platform or its users; (c) except in concert with Xplorie, perform any security integrity review, penetration test, load test, denial of service simulation or vulnerability scan; or (d) otherwise act in a fraudulent, malicious or negligent manner when using the Virtual Concierge Platform.

d. For Amazon Devices, the Virtual Concierge Platform is built on the Alexa for Hospitality service, which is provided by Amazon. Lodging Providers utilizing Amazon Devices agree to the Alexa for Hospitality – Owner/Manager Terms of Use, which are accessible at https://www.amazon.com/alexahospitality/owner-manager-terms-of-use, and in such instances, Amazon and its affiliates shall be deemed third-party beneficiaries of the Agreement.

13. In any controversy or claim arising out of, or relating to the Agreement, or its breach, venue shall lie in Okaloosa County, Florida, and the prevailing party shall be entitled to recover, in addition to any award of damages, costs, reasonable attorneys’ fees including such fees and costs incurred on appeal, and any interest due under the terms of these Standard Terms and Conditions.

14. Any notice required or desired to be given under the Agreement shall be deemed received if in writing and sent by certified mail or electronic mail to the addresses for the Parties set forth in the Agreement, or such other address as either party may designate in writing delivered to the other party.

15. Any waiver of a breach or failure to enforce any term or provision of the Agreement shall not operate or be construed as a waiver of any subsequent breach.

16. Lodging Provider may not assign its rights or delegate its duties or obligations under the Agreement without the prior written consent of Xplorie. The parties’ rights and obligations under the Agreement shall inure to the benefit of, and shall be binding upon, the parties’ successors and approved assigns. Lodging Provider hereby consents to the assignment of rights and delegation of duties arising under the Agreement by Xplorie to any entity with which Xplorie may merge or by which Xplorie may be acquired.

17. The Parties agree that if there are any typographical errors, mathematical mistakes, or other obvious “scrivener” errors in the documentation prepared in connection with the Addendum, the Parties agree to make appropriate corrections in good faith, and each party hereby further agrees and covenants to execute and deliver to the other such documents as may be reasonably required and/or requested by Xplorie to accomplish the correction of such mistakes or errors.

18. Lodging Provider and Xplorie shall at all times during the Term keep and maintain active and current policies of commercial general liability insurance with commercially reasonable coverage limits. Said policies shall be in Class “A” companies authorized to write such coverage in the state in which the Units/Devices are located.

19. Lodging Provider shall indemnify, defend and hold Xplorie harmless from and against (i) any and all claims arising directly or indirectly from the use of the Virtual Concierge Platform, the Devices, or Activities by Guests, (ii) any and all claims of false or improper advertising or marketing, (iii) any other violation of consumer law for properties listed or linked by Lodging Provider on any website(s) managed by Xplorie, or any sub-pages of such website(s), and (iv) any liability arising out of any copyright or trademark infringement by Lodging Provider. Indemnification under this paragraph shall include the cost of litigation and reasonable attorneys’ fees, if any.

20. At any time and from time to time during the Term Xplorie may amend and update these Standard Terms and Conditions as determined in Xplorie’s sole and arbitrary discretion, provided that Xplorie shall give reasonable notice to Lodging Provider of any material changes that may adversely affect Lodging Provider, in which case Lodging Provider, as its sole and exclusive remedy, may elect to provide written objection to such material change within thirty (30) days of receipt of such notice and thereafter Xplorie shall have the option to either revise/retract such proposed change or terminate this Agreement which election shall me made no later than that date which is thirty (30) days following receipt of Lodging Provider’s objection.