ATLIST Platform Membership Agreement

1.    Purpose.  The purpose of this Agreement is to enable the Partner to offer its guests (“Guests”) a frictionless, tech-friendly way to book its in-house amenities, services, merchandise, and activities (collectively known as “In-House Offerings”), each of which are curated and coordinated by the Partner and offered through a front-end website (the “Platform”), and to provide the Partner the opportunity to increase its revenue through qualified reservations made on the Platform, as described below.  

 

2.     Services.  During the term of this Agreement, ATLIST will provide to the Partner and its Guests, the services listed in the Order Form and in this Section 2 (collectively, the “Services”).

 

2.1.  The Platform.  ATLIST operates the Platform, for the purpose of connecting Partners with Guests digitally, and providing the ability for Guests to easily make reservations for In-House Offerings at their accommodations. ATLIST will make the Platform available to the Partner’s Guests for the purpose of booking such in-house offerings, as curated by the Partner. ATLIST will also provide the Partner with access to the Platform for the purpose of adding, deleting or modifying the In-House Offerings available to its Guests.

 

2.2.  IT Support and POC.  ATLIST will provide the Partner with reasonable IT support for its use of the Platform during any term of this Agreement and, if applicable, a local designated point of contact, who will provide the Onboarding Services.

 

2.3.  Platform Changes. ATLIST reserves the right to make changes to the Platform from time to time including upgrades, enhancements, bug-fixes, and other modifications to improve the Platform, provided that such changes shall not eliminate or interfere with the core function of the Platform as described in Section 1.  

 

2.4.  Customer Service. ATLIST will provide reasonable customer service during weekday work hours to the Guests for any questions or concerns regarding the Platform.

 

2.5.  In-House Offerings. The Partner agrees and acknowledges that ATLIST will not be responsible or liable to the Partner or any Guests for any actions or omissions of any Providers or for any inaccuracies in the descriptions of any In-House Offerings listed on the Platform.

 

2.6.  Liability Waivers. ATLIST will take commercially reasonable efforts to obtain from each Guest a liability waiver that waives any and all liability of ATLIST and the Partner to the Guest for any and all accidents or damages that may occur during any of the Offerings booked through the Platform.

 

3.    Term and Termination.

 

3.1.   Pilot Period.  If the Parties have agreed to a pilot use for the Services, this Agreement will commence on the Effective Date and will continue under such pilot use as set forth in the Order Form for the Pilot Period specified in the Order Form.

 

3.2.   Term.  At the end of the Pilot Period, or if no Pilot Period, commencing on the Effective Date, the terms and conditions of this Agreement shall remain in full force and effect until terminated by either of the Parties in accordance with this Agreement.

 

3.3.   Termination. Either Party may terminate this Agreement for any reason by providing thirty (30) days’ written notice to the other Party.

 

3.4.   Effect of Termination. Upon termination of this Agreement, the Partner will no longer have access to the Platform or any data collected by the Platform.

 

3.5.   Survival.  All sections of this Agreement that by their nature and context are intended to survive termination.

 

4.    ATLIST Fees.  

 

4.1.   Pilot Fee.  If there is a Pilot Period to this Agreement, as set forth in the Order Form, the Partner shall pay to ATLIST any fees payable for the Services during the Pilot Period (the “Pilot Fees”), if any, listed in the Order Form. ATLIST "Brand Partners" will not be charged any pilot fees.

 

4.2.   Onboarding Fee; Launch Fees.  If ATLIST will provide Onboarding Services or any Launch Services to the Partner as defined in the Order Form and as listed in Exhibit A, the Partner shall pay to ATLIST the Onboarding Fee and/or Launch Fees, if any, as listed in the Order Form and Exhibit A. ATLIST "Brand Partners" will not be charged onboard fees or launch fees.

 

4.3.   Payment of Fees.  Payment for any Fees are due and payable upon invoice .  Payment shall be made in immediately available funds in USD via the method designated by ATLIST, unless otherwise agreed to by ATLIST.

 

5.     Partner Representation, Warranties and Covenants.  

 

5.1.   Use of Platform. Subject to the other limitations on use described in this Agreement, the Partner may use the Platform solely for the purpose defined in this Agreement, and shall not, without the prior written approval of ATLIST, allow any third party, except as permitted elsewhere in this Agreement, to use the Platform for any other purpose.

 

5.2.  Marketing.  The Partner shall take all reasonable steps to market and promote the Offerings to its Guests prior to and during their stay at the Partners’ facility(ies).  This includes but is not limited to the following: linking to their ATLIST page from their main property website,including a link to their ATLIST page in pre-arrival and intra-stay guest communications including their welcome email, sharing their ATLIST page on social media, and printing a QR code leading to their ATLIST page in the property to share with guests.

 

5.3.   Partner’s Representations and Warranties.  The Partner represents, covenants, and warrants that it will at all times comply with all applicable laws, rules,regulations, ordinances, and orders (collectively, “Laws”) and any instructions provided by ATLIST. Without limiting the generality of the foregoing, the Partner represents and warrants to ATLIST that all In-House Offerings will be offered and provided in accordance with all applicable Laws, and that the listing, offering, and provision of such In-House Offerings shall not violate any applicable Laws.

 

5.4.   Restrictions. The Partner shall not, and shall not authorize any third party to, directly or indirectly: (a) copy, modify, or create derivative works of the Platform, in whole or in part; (b) rent,repackage, lease, lend, sell, sublicense, assign, distribute, publish,transfer, or otherwise make available the Platform, except for the sole and limited purpose of making the Platform available to its Guests as set forth herein; (c) reverse engineer, disassemble, de-compile, decode, adapt, or otherwise attempt to derive or gain access to any source code, object code, or underlying structure, ideas, or algorithms of the Platform, in whole or in part; (d)remove any proprietary notices from the Platform; (e) use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable Laws; (f) monitor the availability, performance, or functionality of the Platform or for any similar benchmarking or competitive purposes; (g) interfere with or disable any features, functionality, or security controls of the Platform or otherwise circumvent any protection mechanisms for the Platform; (h) create any software or application that replicates or competes with the Platform; (i) combine or integrate the Platform with any software, technology, services, or materials not authorized by ATLIST; (j) design or permit any program to disable, override, or otherwise interfere with any aspects of the Platform; or (k) otherwise access or use the Platform except as expressly authorized in this Agreement.

 

5.5.   Partner’s Responsibilities. The Partner shall be solely responsible for arranging and delivering any In-House Offerings. Further, for any In-House Activities that will be processed through Partner Checkout via the Submit Button, the Partner shall be solely responsible for collecting payment and handling any cancellations, refunds, and charge backs. The Partner shall also be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access,or otherwise use the Platform, including, without limitation, modems, hardware,servers, software, operating systems, networking, web servers and the like(collectively, “Equipment”). The Partner shall also be responsible for maintaining the security of the Equipment, any customer accounts, passwords and files for all uses related to the Services.

 

5.6.   Suspension of Services. Notwithstanding anything to the contrary in this Agreement, ATLIST may temporarily suspend, or permanently revoke, the Partner's or any individual Guest’s access to any portion or all of the Platform if ATLIST reasonably determines that: (a) there is a threat or attack on the Platform; (b) the Partner or the Guest’s use of the Platform disrupts or poses a security risk to the Platform; or (c) the Partner or the Guest is using the Platform for fraudulent or illegal activities or otherwise in violation of the terms of this Agreement (any such temporary suspension, a "Suspension" and any such revocation, a "Revocation"). ATLIST shall use commercially reasonable efforts to provide three (3) days’ written notice of any Suspension or Revocation to the Partner and, in cases of Suspensions, to provide updates regarding resumption of access to the Platform following any Suspension. In cases of Suspensions, ATLIST shall use commercially reasonable efforts to resume providing access to the Platform as soon as reasonably practicable after the event giving rise to the Suspension is cured. ATLIST shall have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that the Partner or any third party, including, without limitation, a Guest, may incur as a result of a Suspension or Revocation, and the Partner shall not be entitled to Commissions for any QRs that were cancelled on account of any Suspension or Revocation.

 

6.     Proprietary Rights.

 

6.1.   Intellectual Property.  ATLIST owns and retains all right, title and interest in and to: (a) the Platform, and all improvements, enhancements or modifications thereto; (b) any software,applications, inventions or other technology developed in connection with the Platform or the Services; (c) all content related to the ATLIST Offerings; and(d) all intellectual property rights related to any of the foregoing.

 

6.2.   Platform License.  Subject to the terms and conditions of this Agreement, ATLIST hereby grants to the Partner a non-perpetual, non-exclusive,non-transferable, non-sub licensable right and license, during the term of this Agreement, to access and use the Platform, and all of its features and functionality for the purposes set forth in this Agreement.

 

6.3.   ATLIST Content.  ATLIST will retain all right, title and interest it may have in and to the data and any written reports, transcripts,notes, documents, specifications, materials, flow charts, notes, outlines and the like (collectively, “ATLIST Content”) regarding the Guests, in each case that are developed, conceived or made by ATLIST or the Platform in connection with the Guest’s use of the Platform or the Services that are derived from, based on or contain any ATLIST Content.  

 

6.4.  Grant of License.  Subject to the terms and conditions of this Agreement, each of the Parties hereby grants to the other Party a non-perpetual, non-exclusive, non-transferable, non-sub licensable right and license, during the term of this Agreement, to use and display the materials and content of the other Party, including any relevant trademarks and copyrights belonging to the other Party, for the sole and limited purpose to effectuate and carry out the purpose and intent of the transactions contemplated by this Agreement.

 

6.5.   Partner Feedback.  The Partner may provide ideas, suggestions, comments, or other feedback regarding any part of the Services, including ideas for new or improved products or technologies,product enhancements, processes, materials, marketing plans or new product names (collectively “Feedback”). ATLIST shall own any and all Feedback provided to ATLIST. To the extent that ATLIST does not own any Feedback, the Partner hereby grants to ATLIST an exclusive, perpetual, royalty free license to use the Feedback for its business purposes, and the Partner shall not be entitled to any compensation for such Feedback.  

 

6.6.   Publicity Consent. ATLIST may use the Partner’s name and/or logo to refer to the Partner as a partner of ATLIST on its website, social media, brochures and other marketing materials.  ATLIST may use the Partner as a case study on its website, in investor documents, and in materials shared with third party journalists.  

 

6.7.   Guest Data.  The Partner understands and agrees that all data resulting from the use of the Platform by the Partner’s Guests shall be the sole and exclusive property of ATLIST, and that ATLIST may use any such data in accordance with ATLIST’s privacy policy. Such use may include, but is not limited, to ATLIST’s own marketing purposes.

 

7.     Confidentiality.

 

7.1.   Confidential Information. During the course of this Agreement, each Party (the “Disclosing Party”) may disclose to the other Party (the “Receiving Party”) certain non-public information or materials relating to the Disclosing Party’s products, intellectual property, business, business plans, marketing programs and efforts, customer lists, customer information, financial information and other confidential information and trade secrets (“Confidential Information”).

 

7.2.   Exclusions.  Confidential Information does not include information that: (a) is or becomes publicly available through no breach by the Receiving Party of this Agreement; (b) was previously known to the Receiving Party prior to the date of disclosure, as evidenced by contemporaneous written records; (c) was acquired from a third party without any breach of any obligation of confidentiality; (d) was independently developed by the Receiving Party hereto without reference to Confidential Information of the Disclosing Party; or (e) is required to be disclosed pursuant to a subpoena or other similar order of any court or government agency, provided, however, that the Receiving Party upon receiving such subpoena or order shall: (i) promptly inform the Disclosing Party in writing and provide a copy thereof; (ii) cooperate with the Disclosing Party in limiting disclosure of the Disclosing Party’s Confidential Information; and(iii) shall only disclose that Confidential Information necessary to comply with such subpoena or order.

 

7.3.   Protection of Confidential Information.  Except as expressly provided herein, the Receiving Party will not use or disclose any Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent, except disclosure to and subsequent uses by the Receiving Party’s authorized employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as the Receiving Party’s obligations under this Section 8.3. Subject to the foregoing nondisclosure and non-use obligations, the Receiving Party agrees to use at least the same care and precaution in protecting such Confidential Information as the Receiving Party uses to protect the Receiving Party’s own Confidential Information and trade secrets, and in no event less than reasonable care.  Each Party acknowledges that due to the unique nature of the other Party’s Confidential Information, the Disclosing Party will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information.  In addition to any other remedies that may be available in law, in equity or otherwise, the Disclosing Party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.  Neither Party shall remove or alter any proprietary markings (e.g., copyright and trademark notices) on the other Party’s Confidential Information.

 

7.4.   Return of Confidential Information.  On the Disclosing Party’s written request or upon expiration or termination of this Agreement (unless the Parties mutually agree to enter into a continuing business relationship), the Receiving Party will promptly: (a) return or destroy, at the Disclosing Party’s option, all originals and copies of all documents and materials it has received containing the Disclosing Party’s Confidential Information; and (b) deliver or destroy, at the Disclosing Party’s option, all originals and copies of all summaries,records, descriptions, modifications, negatives, drawings, adoptions and other documents or materials, whether in writing or in machine-readable form, prepared by the Receiving Party, prepared under its direction, or at its request from the documents and materials referred to in subparagraph (a), and provide a notarized written statement to the Disclosing Party certifying that all documents and materials referred to in subparagraphs (a) and (b) have been delivered to the Disclosing Party or destroyed, as requested by the Disclosing Party. Notwithstanding the foregoing, the Receiving Party may retain a copy of the Disclosing Party’s Confidential Information solely for archival purposes or as otherwise required by law, provided that any Confidential Information so retained shall continue to be subject to the confidentiality obligations in this Section 8.

 

8.     Warranty and Disclaimers.

 

8.1.   Platform Warranty.  ATLIST shall use reasonable efforts consistent with industry standards to maintain the Platform in a manner which minimizes errors and interruptions in the Platform and shall perform the Services in a professional and workmanlike manner. Notwithstanding the foregoing, the Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by ATLIST or by third-party providers, or because of other causes beyond ATLIST’s reasonable control. ATLIST shall use reasonable efforts to provide the Partner advance notice in writing or by email of any scheduled service disruption.

 

8.2.   Services Disclaimer.EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, ATLIST DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANT ABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR OTHERWISE ARISING FROM A COURSE OF DEALING OR RELIANCE. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL ASPECTS OF THE PLATFORM ARE PROVIDED TO THE PARTNER BY ATLIST “AS IS.” ATLIST DOES NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE PLATFORM WILL BE COMPATIBLE WITH ANY PARTICULAR DEVICE, OR THAT THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM OR ANY DATA PROVIDED BY ATLIST THROUGH THE PLATFORM OR THE SERVICE WILL BE ACCURATE. ATLIST SPECIFICALLY DISCLAIMS ALL RESPONSIBILITY FOR ANY THIRD-PARTY HARDWARE, SOFTWARE, PRODUCTS, OR SERVICES.

 

9.     Indemnification;Limitation of Liability.

 

9.1.  Indemnification. The Partner will indemnify, defend and hold harmless ATLIST and its directors,officers, employees, agents and other representatives (“Indemnified Parties”)against any loss, damage, liability, costs or expenses (including reasonable attorneys' fees and expenses) in connection with any claims, demands, suits or proceedings (collectively, “Claims”) made or brought against ATLIST by a third-party arising from or relating to: (a) any breach of any representation or warranty of the Partner contained in this Agreement; (b) any breach by the Partner of its obligations hereunder, including without limitation, any breach of Confidential Information of ATLIST; or (c) the intentional or reckless acts or omissions of the Partner and the Partner’s employees or personnel or of any other person or entity acting for, on behalf of, at the direction of, or under the control of the Partner.

 

9.2.   Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BYLAW, (A) ATLIST SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS,REVENUE, DATA, PROFITS OR GOODWILL) ARISING OUT OF THIS AGREEMENT, EVEN IF ATLIST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) IN NO EVENT SHALL THE  AGGREGATE LIABILITY OF ATLIST ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT OF THE FEES ACTUALLY PAID BY THE PARTNER TO ATLIST HEREUNDER IN THE TWELVE (12) MONTH IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.

 

10.  General.  

 

10.1.               Authority.  Each Party represents and warrants to the other that: (a) it has full power and authority to enter in and perform this Agreement and the execution and delivery of this Agreement has been duly authorized; and (b) the performance of its obligations under this Agreement will not: (i) violate any regulations or applicable law; (ii) breach any other agreement to which such Party is bound; or (iii) violate any obligation owned by such Party to any third party.

 

10.2.               International Arbitration. All disputes arising out of or in connection with this Agreement will be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the “ICC Rules”)by three (3) arbitrators appointed in accordance with the ICC Rules. The place of arbitration will be New York, New York, U.S.A. The arbitrators will determine the matters in dispute in accordance with New York law. The arbitration will be conducted in English. The award of the arbitrators (a) will be the exclusive remedy between the Parties regarding any claims,counterclaims, issues or accounting presented or pled to the arbitrators; and(b) will be made, and will be promptly payable, in United States dollars, free of any tax, deduction or offset. Punitive, consequential or incidental damages will not be awarded. Notices in connection with the arbitration will be governed by Section 11.4.

 

10.3.               Assignment; Successors and Assigns.  The Partner may not assign or transfer this Agreement or any rights herein or delegate any duties herein without the prior written consent of ATLIST. Any attempted assignment,transfer or delegation in contravention of this Section 11.3 is null and void.  ATLIST may assign this Agreement and its rights and obligations hereunder without the prior notice to or written consent of the Partner. This Agreement will be binding upon and inure to the benefit of any permitted successors and assigns.

 

10.4.               Notices. All notices, requests, demands or other communications under this Agreement shall be in writing and shall be deemed given if: (a)delivered by hand and receipted for the Party to whom said notice or other communication shall have been directed; (b) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed; (c) mailed by reputable expedited courier and receipted for by the Party to whom said notice or other communication shall have been directed;or (d) sent by facsimile transmission, with receipt of oral confirmation that such transmission has been received. The address for such notices and communications shall be as set forth for each of the Parties above.

 

10.5.               Entire Agreement.  This Agreement constitutes the entire agreement between the Parties relating to the subject matter hereof, and there are no other representations, understandings or agreements between the Parties relating to the subject matter hereof. No modifications or amendments to this Agreement and no waiver of any provisions hereof will be valid unless in writing and signed by duly authorized representatives of the Parties.

 

10.6.               Non waiver.  Any failure or delay by either Party to exercise or partially exercise any right, power or privilege under this Agreement will not be deemed a waiver of any such right, power or privilege.  No waiver by either Party of a breach of any term, provision or condition of this Agreement by the other Party will constitute a waiver of any succeeding breach of the same or any other provision in this Agreement.  No waiver will be valid unless executed in writing by the Party making the waiver.

 

10.7.               Force Majeure.  The failure to perform or delay in performance by either Party shall be excused to the extent that performance is rendered commercially impracticable by strike, fire, flood, terrorism,governmental acts or orders or restrictions, or any other reason where a Party’s failure to perform is beyond such Party’s reasonable control and not caused by the negligence of such Party (each, a “Force Majeure Event”).In the event that either Party’s performance is directly impacted by a Force Majeure Event such Party shall provide prompt notice to the other Party.  

 

10.8.               Relationship of the Parties.  Nothing in this Agreement will create, or be deemed to create, a partnership or the relationship of employer and employee between the Parties. Nothing shall prohibit either Party from entering into an agreement for the same or similar Services from any other third party.  

 

10.9.               Severability.  If any term of this Agreement will to any extent be held invalid or unenforceable by a court of competent jurisdiction,the remainder of this Agreement will not be affected thereby, and each term will be valid and enforceable to the fullest extent permitted by law.