RECITALS

WHEREAS, Client desires to engage GCommerce to provide certain marketing services, media management services, technology platforms, analytics tools, data products, and related services as described in one or more Statements of Work, order forms, HubSpot quotes, or other service authorizations accepted by Client; and

WHEREAS, GCommerce desires to provide such services to Client subject to the Terms and Conditions set forth herein;

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Client and GCommerce agree to be bound by these Terms and Conditions governing the services and technology solutions provided by GCommerce.

TERMS AND CONDITIONS

These Terms and Conditions govern all services provided by GCommerce and apply to all Statements of Work, order forms, HubSpot quotes, or other service authorizations referencing these Terms.

SERVICES

1.1 Engagement. Subject to the terms and conditions of this Agreement, Client hereby engages GCommerce and GCommerce agrees to provide the services described in the applicable Statement of Work, order form, HubSpot quote, or other service authorization accepted by Client (the “Services Agreement”).

1.2 Service Categories. The Services may include one or more of the following categories:

(a) “Digital Marketing Services” means strategic, advisory, creative, consulting, optimization, and related marketing services, including but not limited to search engine optimization, content strategy, website consulting, analytics consulting, and related professional services.

(b) “Media Management Services” means the planning, placement, management, optimization, or reporting of paid media campaigns on third-party platforms, including but not limited to paid search, display advertising, social advertising, metasearch advertising, and other digital advertising channels.

(c) “Platform Services” means access to or use of GCommerce technology platforms, dashboards, portals, reporting systems, and other software-enabled tools, including but not limited to Metadesk and related platform offerings.

(d) “Data Products” means analytics tools, benchmarking insights, reporting systems, application programming interfaces, artificial intelligence capabilities, and other technology-enabled or data-driven offerings provided by GCommerce.

1.3 Scope Changes. Scope of work, deliverables, service categories, and pricing may be added, modified, or removed from time to time upon the written agreement of the Parties through an amended Statement of Work, order form, HubSpot quote, or other written amendment executed or approved by authorized representatives of the Parties.

SERVICE FEES AND PAYMENT TERMS

2.1 General Fees and Invoices. In consideration of GCommerce’s performance of the Services, Client agrees to pay GCommerce the fees set forth in the applicable Services Agreement, together with all applicable sales, use, value added, or similar taxes, even if calculated or assessed after the applicable payment date. Unless otherwise stated in the applicable Services Agreement, invoices are due and payable within thirty (30) days of the invoice date and, where applicable, prior to work beginning.

2.2 Invoice Disputes. Client shall have seven (7) days from receipt of an invoice to dispute any charge in writing. If Client does not dispute any charge in writing within such seven (7) day period, the invoice shall be deemed accepted and all amounts reflected thereon shall be due and payable as provided herein.

2.3 Late Payments. Except for amounts disputed reasonably and in good faith in accordance with this Agreement, any amounts unpaid after the due date shall accrue interest at the rate of three percent (3%) per month, or the highest rate permitted by law if lower, from the due date until paid in full.

2.4 Suspension Rights. Without limiting any other rights or remedies, GCommerce may suspend some or all Services if payment is not received within thirty (30) days of the invoice date or, in the case of prepaid Services or media, before the applicable service period begins.

2.5 Digital Marketing Services Fees. Unless otherwise provided in the applicable Services Agreement, GCommerce will invoice the first three (3) months of Digital Marketing Services fees in advance of work beginning. Thereafter, GCommerce will invoice such fees on a quarterly basis, forty-five (45) days prior to the beginning of each quarter.

2.6 Media Management Services Fees and Media Expense. Client acknowledges and agrees that it is responsible for all costs and expenses associated with Media Management Services that Client has approved in writing, including but not limited to paid search media, display advertising media, social advertising media, metasearch advertising media, and other approved third-party media buys. Unless otherwise stated in the applicable Services Agreement, GCommerce shall be entitled to a media placement or management fee of ten percent (10%) of such media spend.

2.7 Media Expense Payment Terms. Unless otherwise stated in the applicable Services Agreement, GCommerce will invoice Client for the first three (3) months of estimated and approved media spend in advance of media placement. GCommerce will thereafter invoice media expense on a quarterly basis, forty-five (45) days prior to the beginning of each quarter. GCommerce may provide a statement of actual media expenses incurred and may reconcile any difference between estimated and actual spend.

2.8 Alternative Media Payment Method. In lieu of quarterly prepayment by check, Client may elect to keep a credit card on file with GCommerce or establish ACH payment arrangements for approved media expenses at least fifteen (15) days prior to the month in which such media will be placed. If Client chooses to pay by credit card, Client agrees to pay a three percent (3%) credit card processing fee for all such transactions. If Client’s payment method fails to clear before the applicable media period, GCommerce may pause media placement at the end of the prepaid period and resume only after all outstanding media amounts are paid in full.

2.9 Taxes on Media. Client shall be responsible for all taxes imposed on media buys, other than taxes measured by GCommerce’s net income.

2.10 Platform Services and Data Products Fees. Fees for Platform Services and Data Products shall be as stated in the applicable Services Agreement and may include recurring subscription fees, implementation fees, usage-based fees, API fees, or other pricing models as specified therein.

2.11 General and Travel Expenses. Client shall reimburse GCommerce for approved expenses incurred in connection with the Services, including incidental and out-of-pocket expenses such as phone calls, postage, shipping, overnight courier, service bureaus, presentation materials, photocopies, parking fees, tolls, taxis, and similar items, at cost plus GCommerce’s standard markup of ten percent (10%), and, if applicable, mileage reimbursement at the then-current IRS standard mileage rate. Client shall also reimburse approved travel expenses, including airfare, meals, and lodging, incurred with Client’s prior written approval.

TERM AND TERMINATION

3.1 Term. The term of this Agreement shall commence upon the effective date set forth in the applicable Services Agreement and, unless sooner terminated in accordance with this Agreement, shall continue for the period stated therein. If no period is stated, the initial term shall be two (2) years.

3.2 Renewal. Unless otherwise stated in the applicable Services Agreement, the initial term will automatically renew for successive two (2) year renewal terms unless either Party provides written notice of non-renewal at least ninety (90) days before the end of the then-current term.

3.3 Fee Increases Upon Renewal. Unless otherwise stated in the applicable Services Agreement, fees for each renewal term may increase by five percent (5%) over the fees charged during the immediately preceding term.

3.4 Termination for Cause. Either Party may terminate this Agreement or any applicable Services Agreement upon written notice if the other Party: (a) becomes insolvent, files a petition in bankruptcy, or makes an assignment for the benefit of its creditors; or (b) materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice thereof.

3.5 Mutual Termination. The Parties may terminate this Agreement or any applicable Services Agreement at any time by mutual written agreement.

3.6 Payment Upon Termination. Upon termination, Client shall pay GCommerce for all Services performed, fees earned, media committed, subscription periods incurred, and reimbursable expenses accrued through the effective date of termination.

3.7 Early Termination. If Client terminates a Services Agreement before the expiration of the applicable term other than for uncured material breach by GCommerce, Client shall pay any early termination amounts expressly set forth in the applicable Services Agreement. If the applicable Services Agreement provides for liquidated damages or payment of remaining committed fees, such amounts shall be due within thirty (30) days of termination.

COOPERATION

4.1 Cooperation. Client agrees to cooperate with GCommerce in the performance of the Services and to provide promptly such information, access, approvals, materials, credentials, and assistance as GCommerce may reasonably request.

4.2 Access and Data Collection. To the extent necessary for performance of the Services, Client authorizes GCommerce to collect, access, and use website visitor data, analytics data, user session data, campaign data, and other approved business information in accordance with this Agreement and the applicable Services Agreement.

NO WARRANTY

5.1 Services Disclaimer. Client acknowledges that GCommerce’s obligation under this Agreement is limited to providing the Services in accordance with this Agreement and the applicable Services Agreement. GCommerce does not guarantee any specific result, financial outcome, return on investment, traffic level, booking level, conversion level, ranking, or performance metric.

5.2 Third-Party Systems. Client acknowledges that certain Services rely on data, functionality, access, inventory, rules, policies, and systems provided by third parties, including but not limited to advertising platforms, analytics providers, reservation systems, property management systems, metasearch partners, and other technology vendors. GCommerce does not control and is not responsible for the availability, accuracy, policies, pricing, or performance of such third-party platforms or systems.

DISPUTES RELATING TO THE SERVICES

Client agrees to raise any concerns or issues relating to the Services within ten (10) days after the applicable Services are performed or deliverables are provided. If Client does not raise such concerns or issues in writing within such period, the applicable Services or deliverables shall be deemed accepted.

CLIENT REPRESENTATIONS; INDEMNIFICATION

7.1 Client Representation. Client represents that it is not presently subject to any agreement or legal obligation that would prevent it from entering into this Agreement or performing its obligations hereunder.

7.2 Client Indemnity. Client agrees to indemnify, defend, and hold harmless GCommerce and its affiliates, successors, agents, employees, contractors, and assigns from and against any and all losses, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees, arising out of any third-party claim relating to: (a) GCommerce’s performance of the Services in accordance with this Agreement or Client’s instructions; (b) Client Content; (c) Client’s violation of applicable law or third-party rights; or (d) the fraud, gross negligence, or willful misconduct of Client.

7.3 GCommerce Indemnity. GCommerce agrees to indemnify, defend, and hold harmless Client and its affiliates, successors, agents, employees, and assigns from and against any and all losses, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees, arising out of any third-party claim relating to the fraud, gross negligence, or willful misconduct of GCommerce.

7.4 Survival. This Section 7 shall survive termination of this Agreement.

LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES SHALL GCOMMERCE BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS, LOST REVENUE, LOST DATA, OR BUSINESS INTERRUPTION, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SERVICES AGREEMENT, WHETHER UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT SHALL GCOMMERCE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SERVICES AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY CLIENT TO GCOMMERCE UNDER THE APPLICABLE SERVICES AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

CONFIDENTIALITY

9.1 Confidential Information. Each Party acknowledges that in connection with this Agreement it may receive confidential or proprietary technical, business, financial, strategic, or other information of the other Party, whether written, oral, electronic, visual, or otherwise, including preliminary works, product information, pricing, client information, credentials, and business methods (“Confidential Information”).

9.2 Obligations. Each Party shall hold all Confidential Information of the other Party in strict confidence, shall not disclose such Confidential Information to any third party except as necessary to perform its obligations under this Agreement or as required by law, and shall not use such Confidential Information for any purpose other than performance under this Agreement.

9.3 Exclusions. Confidential Information does not include information that: (a) is or becomes publicly known through no fault of the receiving Party; (b) is rightfully received from a third party without a duty of confidentiality; or (c) is independently developed without use of the disclosing Party’s Confidential Information.

CHANGES AND TIMING

10.1 Additional Services. Unless otherwise provided in the applicable Services Agreement, Client shall pay additional charges for Services requested by Client that are outside the agreed scope on a time and materials basis at GCommerce’s then-current standard hourly rate, which is currently $175 per hour. Such charges shall be in addition to all other amounts payable under the applicable Services Agreement.

10.2 Changes to Schedule. The Parties shall mutually agree in good faith to extend or modify any delivery schedule, implementation timeline, campaign start date, or other milestone as may be reasonably required by scope changes, Client delays, third-party delays, or dependencies outside GCommerce’s reasonable control.

10.3 Timing. All timelines, whether written or verbal, are estimates unless expressly stated otherwise in the applicable Services Agreement. GCommerce will use commercially reasonable efforts to perform the Services and provide deliverables within the applicable timeframes, but Client acknowledges that GCommerce’s ability to meet any schedule depends on Client’s timely cooperation, approvals, materials, access, and instructions.

10.4 Client Delay. Any delay caused by Client or by third-party systems outside GCommerce’s reasonable control shall not constitute a breach by GCommerce.

CLIENT RESPONSIBILITIES

Client acknowledges and agrees that it is responsible for performing the following in a reasonable and timely manner:

(a) coordinating internal decision-making and approvals;

(b) providing required access, credentials, data, and materials;

(c) funding approved media budgets before applicable media is placed;

(d) reviewing deliverables promptly and providing written approval or feedback;

(e) final proofreading of deliverables; and

(f) paying the cost of correcting errors remaining in approved deliverables, including typographical errors, misspellings, or similar errors not identified before approval.

ACCREDITATION AND PROMOTIONS

12.1 Portfolio and Marketing Rights. GCommerce retains the right to reproduce, publish, and display non-confidential deliverables in GCommerce’s portfolios, websites, presentations, galleries, design periodicals, and other media for the purposes of recognition of creative or marketing excellence, professional advancement, and marketing its services.

12.2 Public References. Either Party, subject to the other Party’s reasonable approval, may describe its role in relation to the Services and, if applicable, the services provided to the other Party on its website and in other promotional materials. GCommerce may refer to Client as a customer in its sales presentations, marketing materials, and other marketing activities.

12.3 Relationship Disclosure. Client agrees that GCommerce may disclose on its website and in other marketing materials the existence of the contractual relationship described in the applicable Services Agreement, provided that GCommerce shall not disclose financial terms without Client’s consent.

12.4 Attribution. To the extent applicable and subject to Client’s reasonable approval, GCommerce may request attribution on Client’s website or other deliverables in a mutually acceptable format.

RELATIONSHIP OF THE PARTIES

13.1 Independent Contractor. GCommerce is an independent contractor and not an employee, partner, or joint venturer of Client. GCommerce shall determine, in its sole discretion, the manner and means by which the Services are performed, subject to the terms of this Agreement and the applicable Services Agreement.

13.2 Agents and Contractors. GCommerce may engage or use third-party designers, developers, media buyers, data providers, software vendors, consultants, or other service providers in connection with the Services. GCommerce shall remain responsible for their compliance with the material terms of this Agreement applicable to GCommerce.

13.3 No Solicitation. During the term of this Agreement and for twelve (12) months thereafter, Client shall not directly solicit for employment or engagement any employee or contractor of GCommerce who materially participated in the performance of the Services for Client. If Client breaches this provision, Client shall pay GCommerce, as liquidated damages and not as a penalty, an amount equal to the greater of: (a) twenty-five percent (25%) of such person’s starting annualized compensation with Client; or (b) twenty-five percent (25%) of fees paid to such person if engaged by Client as an independent contractor.

13.4 No Exclusivity. Unless otherwise expressly stated in the applicable Services Agreement, this Agreement does not create an exclusive relationship between the Parties. Client may engage others to perform similar services, and GCommerce may provide similar services to other clients.

REPRESENTATIONS

14.1 By Client. Client represents, warrants, and covenants that:

(a) Client owns or has sufficient rights to all content, data, trademarks, materials, and other information provided to GCommerce by or on behalf of Client (“Client Content”);

(b) to Client’s knowledge, Client Content and Client’s use thereof do not infringe any third-party rights;

(c) Client shall comply with the terms of any third-party licenses applicable to Client Content or third-party materials provided by Client; and

(d) Client shall comply with all laws and regulations applicable to its business, its marketing, its data, and its use of the Services.

14.2 By GCommerce. GCommerce represents, warrants, and covenants that it will perform the Services in a professional and workmanlike manner consistent with reasonable industry standards.

14.3 Deliverables. GCommerce further represents that, except for Client Content and third-party materials, deliverables created by GCommerce for Client shall be original to GCommerce or properly licensed by GCommerce to the extent required to provide the agreed rights under this Agreement. If Client modifies deliverables or uses them outside the scope permitted by this Agreement or the applicable Services Agreement, GCommerce’s warranties with respect to such modified or unauthorized use shall be void.

INTELLECTUAL PROPERTY PROVISIONS

15.1 Client Content. Client Content, including pre-existing trademarks and materials, shall remain the sole property of Client or its respective licensors. Client hereby grants GCommerce a non-exclusive, non-transferable license to use, reproduce, modify, display, transmit, and publish Client Content solely as necessary to perform the Services and to exercise GCommerce’s rights expressly granted under this Agreement.

15.2 Third-Party Materials. All third-party materials used in connection with the Services are and shall remain the property of their respective owners. GCommerce shall inform Client of any third-party materials that may be required to perform the Services or integrated into deliverables, where reasonably applicable. Unless otherwise expressly agreed, Client shall be responsible for obtaining and paying for any required third-party licenses intended for Client’s ongoing use.

15.3 Failure to Secure Rights. If Client fails to obtain required permissions, licenses, or releases for materials furnished or directed by Client, Client shall indemnify and hold harmless GCommerce from any resulting claims, damages, liabilities, costs, or expenses.

DATA PRODUCTS AND DATA RIGHTS

16.1 Data Products. GCommerce may provide Client with access to Data Products in connection with the Services.

16.2 Customer Data. Client retains ownership of all data provided by Client or collected from Client systems in connection with the Services (“Customer Data”). Customer Data may include, without limitation, marketing performance data, analytics data, reservation data, advertising platform data, website data, and other data retrieved from third-party systems authorized by Client.

16.3 License to Use Customer Data. Client grants GCommerce a limited, non-exclusive, worldwide license to access, process, store, analyze, and use Customer Data solely for the purpose of providing the Services, generating analytics and reporting for Client, supporting the functionality of the Platform Services and Data Products, and improving the performance, reliability, and capabilities of the Services, Platform Services, and Data Products.

16.4 Authorization to Access Third-Party Systems. Client authorizes GCommerce to access data from third-party systems designated by Client, including analytics platforms, advertising platforms, reservation systems, property management systems, channel managers, and other technology systems reasonably necessary for GCommerce to perform the Services.

16.5 Platform Data. All software platforms, dashboards, APIs, algorithms, analytics models, data models, benchmarking methodologies, reporting frameworks, and related technology used to provide the Services, Platform Services, or Data Products, together with all improvements thereto, (“Platform Data”) are and shall remain the exclusive property of GCommerce.

16.6 Aggregated Data. GCommerce may aggregate and de-identify Customer Data with data from other clients to create datasets that do not identify Client, Client’s properties, or any individual guest (“Aggregated Data”). GCommerce may use Aggregated Data for industry benchmarking, market insights, research, product development, service improvement, and enhancement of analytics models, machine learning models, and artificial intelligence capabilities. Aggregated Data shall be considered Platform Data owned by GCommerce.

16.7 Benchmarking. Client acknowledges that certain analytics, comparative insights, and benchmarking outputs may be derived from aggregated datasets across multiple participating clients within the GCommerce hospitality data network. Such outputs will be anonymized and will not disclose Client-specific confidential data.

16.8 Artificial Intelligence. GCommerce may use Aggregated Data and de-identified datasets derived from Customer Data to train, test, improve, and support machine learning models and artificial intelligence capabilities used in connection with the Services, Platform Services, or Data Products.

16.9 Data Security. GCommerce shall implement commercially reasonable administrative, technical, and organizational safeguards designed to protect Customer Data from unauthorized access, disclosure, alteration, or destruction.

GENERAL

17.1 Force Majeure. Except for payment obligations, neither Party shall be liable for delays or nonperformance resulting from causes beyond its reasonable control, including acts of God, fire, casualty, strikes, labor disputes, war, terrorism, governmental action, failure of third-party providers, internet outages, or the acts or omissions of the other Party.

17.2 Notices. All notices under this Agreement shall be in writing and delivered by email with confirmation of receipt, certified mail, or registered mail to the addresses designated by the Parties. Notice shall be effective upon receipt or, in the case of email, upon confirmation of receipt.

17.3 Waiver or Modification. No waiver of any provision of this Agreement shall constitute a waiver of any other provision. Any waiver, modification, or amendment shall be effective only if in writing and signed by authorized representatives of both Parties.

17.4 Assignment. Client may not assign this Agreement without GCommerce’s prior written consent, except in connection with a merger, acquisition, or sale of substantially all of Client’s assets. GCommerce may assign this Agreement without Client’s consent to an affiliate or successor in interest in connection with a merger, sale of assets, sale of stock, reorganization, or similar transaction.

17.5 Governing Law and Dispute Resolution. This Agreement shall be governed by the laws of the State of Utah, without regard to conflict of law principles. In the event of a dispute, the Parties shall first attempt to resolve the matter through good faith negotiation. If unresolved, either Party may commence mediation and, if necessary, binding arbitration through the American Arbitration Association or another forum mutually agreed by the Parties. The prevailing Party in any arbitration or litigation shall be entitled to recover reasonable attorneys’ fees and costs. The Parties consent to the jurisdiction of the state and federal courts located in Utah for matters not subject to arbitration or for enforcement of arbitration awards or equitable relief.

17.6 Equitable Relief. Client acknowledges that unauthorized use of GCommerce’s deliverables, Platform Data, or Confidential Information may cause irreparable harm for which monetary damages may be inadequate, and GCommerce shall therefore be entitled to seek injunctive or other equitable relief in addition to any other remedies available at law or in equity.

17.7 Severability. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect, and the invalid or unenforceable provision shall be replaced by a valid and enforceable provision that most closely reflects the original intent.

17.8 Headings. Section headings are for convenience only and shall not affect interpretation.

17.9 Integration and Order of Precedence. This Agreement, together with the applicable Services Agreement and any attached schedules, exhibits, addenda, or written amendments, constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes all prior or contemporaneous understandings relating thereto. In the event of a conflict between these Terms and Conditions and the applicable Services Agreement, the Services Agreement shall control solely with respect to the specific services, pricing, and commercial terms set forth therein, and these Terms and Conditions shall otherwise control.

ACCEPTANCE

Client accepts and agrees to these Terms and Conditions through execution or acceptance of a Statement of Work, order form, HubSpot quote, or other service authorization that references these Terms, and these Terms and Conditions shall be effective as of the date of such acceptance.