Terms & Conditions

Welcome to Resort Backyard! Resort Backyard provides landscape design services that

allow its customers to see inspirational designs and layouts within the context of their

own properties. Resort Backyard helps homeowners, remodelers and renters in creating

personalized designs online.

We would love to hear from You. All feedback, comments, requests for technical

support, and other communications should be directed to: hello@resortbackyard.com.

With that, we need to share with You some details from our lawyers.

The Customer Agreement, these Terms of Service, and the Privacy Policy together form

the agreement between You and Resort Backyard (collectively, the “Agreement”). The

Agreement constitutes an agreement between You and Resort Backyard governing

Your use of the Service.

By using the Services, You agree to all the terms of the Agreement. You are advised to

check the Privacy Policy and the Terms of Service from time to time for any updates or

changes that may impact You. Your continued use of the Services, following changes to

the Privacy Policy and the Terms of Service, constitutes your agreement to any such

changes.

Violation of any of the terms of the Agreement may result in the suspension or

termination of Your Account or License to use the Service.

1. DEFINITIONS.

1.1 “Account” means Customer’s account with Resort Backyard for use of the Services

by Customer.

1.2 “Additional Fees” means the monies due from Customer to Resort Backyard for (i)

Customer’s use of the Services outside of the scope of the Agreement or (ii) any

Additional Services requested by Customer beyond the scope set forth in the

Agreement.

1.3 “Additional Service(s)” means any services which are not included in the Customer

Agreement, which are subject to Additional Fees.

1.4. “Customer” means the party authorized under the Agreement to use the Services

1.5 “Customer Agreement” means the document entitled product pages.

1.6 “Customer Data” means any and all information, data, materials, works,

photographs, expressions, or other content, including any that are (a) uploaded,

submitted, posted, stored, transferred, transmitted, or otherwise provided or made

available by or on behalf of Customer for processing by or through the Services, or (b)

collected, downloaded, or otherwise received by Resort Backyard from Customer

pursuant to this Agreement or at the written request or instruction of Customer.

1.7 “Documentation” means all materials, including drawings, diagrams, specifications,

product descriptions, manuals and instructions that Resort Backyard provides (either in

digital or hard copy form) to assist and define Customer’s use of the Services.

1.8 “Fees” means the monies due from Customer to Resort Backyard as consideration

for the Services and Licenses in the Agreement in connection with the Services and

also means Additional Fees.

1.9 “Initial Term” commences on the date that You set up an Account on the Website

until this Agreement is terminated pursuant to its terms..

1.10 “Intellectual Property Rights” means patents, patentable rights, copyright, design

rights, utility models, trademarks (including Marks), trade names, rights in domain

names, rights in inventions, rights in data, database rights, rights in know-how and

confidential information as described herein, and all other intellectual property and all

pending applications for any of the foregoing and including all renewals, extensions,

revivals and all accrued rights of action.

1.11 “Insolvency Event” means, in relation to either party, any of the following events: (a)

the company commences a voluntary case under title 11 of the United States Code or

the corresponding provisions of any successor laws; (b) anyone commences an

involuntary case against the company under title 11 of the United States Code or the

corresponding provisions of any successor laws and either (i) the case is not dismissed

by midnight at the end of the 60th day after commencement or (ii) the court before

which the case is pending issues an order for relief or similar order approving the case;

(c) a court of competent jurisdiction appoints, or the company makes an assignment of

all or substantially all of its assets to, a custodian (as that term is defined in title 11 of

the United States Code or the corresponding provisions of any successor laws) for the

company or all or substantially all of its assets; or (d) the company fails generally to pay

its debts as they become due (unless those debts are subject to a good-faith dispute as

to liability or amount) or acknowledges in writing that it is unable to do so.

1.12 “License” means the licenses expressly granted herein by Resort Backyard to

Customer to use the Services.

1.13 “Marks” means any word, symbol or device, or any combination thereof, used or

intended to be used by a party to identify and distinguish the party’s or its third-party

licensor’s products or services from the products or services of others, including without

limitation trade names, trademarks, service marks and logos.

1.14 “Representatives” collectively means the affiliates, directors, officers, shareholders,

members, employees, subcontractors, permitted assigns and agents of a party.

1.15 “Security Obligation” means responsibility for maintaining the security of account

login information (username and password).

1.16 “Service” or “Services” means the services to be provided by Resort Backyard,

including without limitation, the Website, any Work Product, software, code, or

functionality. Services shall also include updates and upgrades subsequently provided

to the Resort Backyard or the Technology. Services shall also include any Additional

Services, which are subject to Additional Fees.

1.17 “Resort Backyard” means Resort Backyard LLC or any successor or assignee or

subcontractor of Resort Backyard.

1.18 “Technology” means, collectively, the Website, Documentation, functionality, URLs

and integrations that enable Customer access to the Services, the Work Product, any

Additional Services, analytics, transaction information, and any and all other

information, data, documents, materials, works and other content, devices, methods,

processes, hardware, software and other technologies and inventions, including any

deliverables, technical or functional descriptions, requirements, plans or reports that are

provided or used by Resort Backyard in connection with the Services and any software

or technology incorporated in or made available by Resort Backyard through the Resort

Backyard Services.

1.20 “Term” means the Initial Term.

1.21 “Us” means Resort Backyard.

1.22 “User” or “Users” means the Customer.

1.23 “You” or “Your” refers to the Customer.

1.24 “We” or “Our” refers to Resort Backyard.

1.25 “Website” or “Site” means www.resortbackyard.com or such other website, portal,

domain, or subdomain or mobile access point from which Resort Backyard may make

the Service available.

1.26 “Work Product” means the landscape design, models, and plant schedules,

installation instructions and other elements of the customer experience and design

deliverables that Resort Backyard creates for You with or without use of Customer Data.

2. LICENSE / RESTRICTIONS / INTELLECTUAL PROPERTY / DATA.

2.1. License. Resort Backyard grants the Customer a limited, non-transferrable,

non-exclusive license to use and access the Service and the Work Product subject to

the terms, obligations, restrictions and limitations set forth in the Agreement for Your

own personal, non-commercial purposes. All rights not expressly granted to You in the

Agreement are reserved and retained by Resort Backyard.

You may not reproduce, distribute, modify, create derivative works of, publicly display,

publicly perform, republish, download, store or transmit the Work Product except You

may privately share and publicly display Work Product, provided the same (i) is in the

form provided to you by Resort Backyard, without alteration by you or any third parties,

and (ii) continues to bear Resort Backyard’s Marks

2.2 License Limitations and Restrictions.

(a) Prohibited Actions. Customer shall not:

except as expressly permitted by this Agreement, copy, reproduce, distribute, publish,

display post or transmit, the Service, or the Technology, in whole or in part;

license, sub-license, sell, resell, rent, lease, transfer, assign, distribute or otherwise

exploit the terms of this License or make the Service available for access or use by any

person(s) other than the Users;

use the Service to process any data unlawfully, in violation of the Agreement, or for any

third party;

allow any unauthorized access to, or use of, the Service;

copy, translate, transmit, post, create a derivative work of, modify, adapt, download, sell,

publish, decipher, decompile, reverse engineer, reverse assemble, disassemble,

decompile, or otherwise attempt to determine any programming or the source code

associated with the Service or the Technology;

use data mining, robots, crawlers, or spiders, or similar data gathering and extraction

tools:

frame or utilize framing techniques to enclose any Resort Backyard Marks or other

Intellectual Property (including images, text, page layout, or form) of Resort Backyard;

use any meta tags or any other “hidden text” utilizing Resort Backyard’s name or Marks;

use the Service in an unlawful manner including, but not limited to, the infringement of

any third party or Resort Backyard Intellectual Property or use the Service in breach of

any third party’s privacy rights;

use the Service for spamming or sending any unsolicited emails or information to any

person or entity;

use the Service in a manner that interferes with or disrupts the provision of the Service

by Resort Backyard to third parties;

access or use the Service to circumvent or exceed the Services account limitations or

requirements, or access or use the Service by any means other than through the

interfaces that are provided by Resort Backyard;

use the Service to upload, store or transmit any malicious code or other similar harmful

software such as viruses, malware or trojan horses;

use the Service to make any transmission, display or publication of any material which

is of a defamatory, offensive, abusive or menacing character to any other person;

engage in or permit any unauthorized distribution of any software or programming

associated with the Service including, without limitation, placing Resort Backyard’s

software or programming on any physical or virtual servers or mediums;

use the Service for any transmission, display or publication of any material in breach of

any law dealing with privacy or data protection in any jurisdiction;

remove or obscure any copyright, patent, trademark, trade secret or similar proprietary

notice affixed to any Technology, or the Service;

use the Service or Technology for the purpose of developing a product or service, or

helping another develop a product or service, which would obviate the need for the

Service by You or others, or which would be similar to the Service or Technology;

use the Service or Technology for the purpose of bringing an Intellectual Property claim

against Resort Backyard;

cause the breach of, or interfere with, Resort Backyard’s agreements with third parties;

or

use or allow others to use the Technology or the Service for any purpose not expressly

authorized in the Agreement

(b) Notification of Unauthorized or Breaching Use. You must notify Us immediately in the

event that You become aware of any actual or attempted unauthorized access to or use

of the Service or Technology in breach of this Agreement.

(c) Technology; Source Code. Except as expressly stated in the Agreement, no licenses

or rights are granted by Resort Backyard and nothing in the Agreement implies any

license to Customer in the Technology, including, without limitation, the source code.

The source code will not be accessible to any Customer. Customer agrees that the

underlying structure, sequence, organization and source code of the Technology are

valuable trade secrets of Resort Backyard, are confidential information, and shall

remain strictly confidential.

2.3. Intellectual Property Ownership.

(a) Customer’s Rights. Customer owns all right, title and interest in the Customer Data.

Customer acknowledges and agrees that, in connection with the provision of the

Services, Resort Backyard may store, use, modify, distribute, publish, display, and

maintain Customer Data consistent with Resort Backyard’s standard business

processes for the Services. Customer grants Resort Backyard a limited, revocable,

non-exclusive, non-transferable (except in connection with an assignment of this

Agreement), sublicensable license to use, modify, distribute, publish, display, maintain,

access, store and process the Customer Data to the extent necessary to provide the

Services and otherwise fulfill its rights and obligations under this Agreement and for

Resort Backyard’s own marketing and promotional purposes. Customer grants Resort

Backyard a royalty-free, worldwide, perpetual, irrevocable, right to use, modify,

distribute, publish, display, and incorporate into the Services any suggestions or

feedback provided by Customer or any Users related to the operation or functionality of

the Service. Following expiration or termination of this Agreement or Customer’s

account, Resort Backyard may deactivate the applicable Customer’s account and may

(but is not obligated to) delete any data, including Customer Data, associated therewith.

Upon such deactivation, Customer will no longer have rights to access or use the

Services;

(b) Resort Backyard’s Rights. All rights, title and interest in and to the Technology,

Service, Resort Backyard Marks, (including without limitation all Intellectual Property

rights in the Technology, Service, Resort Backyard Marks, and all modifications,

extensions, customizations, scripts or other derivative works thereof provided or

developed by Resort Backyard) are owned exclusively by Resort Backyard. Except as

provided in this Agreement, the rights granted to Customer do not convey any rights,

express or implied, or ownership to the Technology, Service, Resort Backyard Marks, or

any Intellectual Property rights thereto.

2.4 Documentation Licenses. Resort Backyard grants Customer the non-exclusive right

to use the Documentation solely in conjunction with Customer’s use of the Service and

Technology during the Term. Resort Backyard and any applicable third parties reserve

all rights in their respective Documentation.

3. TERMS OF SERVICE

3.1. Access, Monitoring, Removal. Resort Backyard may access, monitor, remove

content within, or disable Customer access to the Technology, and/or Services if: (a)

Resort Backyard, in its reasonable discretion, believes it may incur liability because of

Customer Data, (b) Resort Backyard is required to do so by law, government order or

other legal process, (c) Resort Backyard determines in its sole discretion that it is

necessary to enforce the terms of the Agreement, (d) Resort Backyard, in its reasonable

discretion, believes it is necessary to do so to support, manage, improve and protect the

integrity of the Service, (e) Resort Backyard, in its reasonable discretion, believes it is

necessary to prevent illegal activity, uploading of virus infected files or questionable

material, or (f) Customer breaches the Agreement. Resort Backyard shall have no

liability to Customer nor to any third party for any disabling of Customer’s access or

removal of Customer Data, and Customer shall remain liable for Fees and Additional

Fees even during such disabling. Customer acknowledges that Resort Backyard’s right

to access or monitor shall in no way be construed as an obligation by Resort Backyard

to monitor any Customer Data or to pre-screen Customer Data.

3.2 Changes to Service. Resort Backyard may discontinue any part of the Service, or

Technology, in whole or in part, or modify any design, layout, features, functionality,

tools or content of the Service, and/or Technology, at any time, for any reason or no

reason, with or without notice to You (although Resort Backyard has no obligation to

provide any updates or to continue to provide or enable any particular features,

functionality, tools or content, and will not be liable with respect to any such

modifications, discontinuance or deletions). Any new features provided by Resort

Backyard which augment or enhance the current Service, and/or Technology, including

the release of new tools or resources, updates and upgrades by Resort Backyard, may

result in Additional Fees.

3.3 Maintenance. Resort Backyard may temporarily suspend the Technology, or any

Services, for maintenance from time to time.

3.4 Individual Account Holders. In order for a Customer to subscribe to the Service,

each account must be assigned to an individual person. Resort Backyard cannot and

will not accept any subscriptions where accounts are registered or run through

automated methods, unless explicitly authorized in advance by Resort Backyard.

3.5. Signup. Customers must provide their full legal name, address, and a valid email

address in order to complete the signup process.

3.6. Service Control. Except as otherwise expressly provided in this Agreement, Resort

Backyard has and will retain sole control over the operation, provision, maintenance,

and management of the Technology, and the Service.

3.7 Transmission. Customer acknowledges that, by virtue of Customer’s location or third

parties acting on behalf of others aside from Resort Backyard, Customer’s information

and Customer’s Data (personal or otherwise) may be transmitted to, from, and/or

outside the United States.

4. CUSTOMER OBLIGATIONS.

4.1. Customer Data. Customer is responsible for providing all Customer Data in local

languages and for providing buyer support in those local languages, unless expressly

stated in a writing signed by the parties.

4.2 Security Obligations. Customer is responsible for maintaining its Security Obligation.

Customer must notify Resort Backyard immediately in the event of loss of Customer’s

username or password. Customer must report any security breaches promptly to Resort

Backyard.

4.3. Customer Usage. Customer shall use reasonable efforts to perform all acts and to

make, execute and deliver all documents, data, and access credentials that Customer

needs to perform or provide in order for Resort Backyard to provide the Services.

5. FEES

5.1 Fee Payment. Fees and Additional Fees are due and payable per the terms of the

Customer Agreement. If an automatic payment processing fails, Resort Backyard may

demand payment of the Fees, Additional Fees which are due, and any failed/returned

payment fees, and temporarily disable the Customer’s access to the Technology and/or

Service until full payment is made.

5.2 Fee Changes. In its sole discretion, Resort Backyard reserves the right to modify its

Fees in any manner prior to Customer’s payment.

6. TERM AND TERMINATION

6.1 Term. The Initial Term is the term of this Agreement.

6.2 Termination.

(a) Termination by Customer. You have the right to terminate Your Account at any time

by contacting Us at hello@resortbackyard.com

(b) Termination by Resort Backyard. Resort Backyard may terminate this Agreement

other than at the end of a Term (a) upon Customer’s failure to pay Fees or Additional

Fees when due, (b) upon Customer’s breach of Sections 2.2, 4, 7.2, 11.1, or 12 of these

Terms of Service, or (c) upon Customer’s material breach of any other provision of this

Agreement.

6.3. Effect of Expiration or Termination. Upon expiration or termination of the

Agreement, the License granted to Customer under this Agreement shall terminate

immediately. The following sections of the Terms of Service survive its expiration or

termination: 1.0, 2.3, 5 (solely to the extent that Fees are owed), 7 through 12 and any

other provision or partial provision which by its nature would reasonably survive the

termination of the Agreement.

7. PARTIES’ REPRESENTATIONS AND WARRANTIES.

7.1 Resort Backyard’s Warranty and Limitations. Resort Backyard represents and

warrants that: it has the right to provide the Service as contemplated under this

Agreement and that the provision of the Service in accordance with the terms of this

Agreement, does not and will not infringe any Intellectual Property rights of third parties

in locations where the Services are provided. Upon Resort Backyard’s determination, in

its sole discretion, that the use of the Service infringes upon the rights of any third party,

Resort Backyard may, at its sole discretion and own cost and expense and without

further liability or obligation to Customer, either: (i) procure the right for Customer to

continue to license the Service, (ii) modify the Service in such a way that the use thereof

does not infringe on the rights of third parties, or (iii) terminate the Agreement by notice

to Customer and refund any Fees paid in advance for the license to use the Service

during the remaining (on a pro rata basis) unused portion of the Term after the

termination date, if any. Resort Backyard shall have no liability or obligation with respect

to any infringement claim if the infringement is caused by: (i) a modification made by

Customer to an item, software, or Service supplied by Resort Backyard or a

modification made by Resort Backyard at Customer’s request, (ii) use of the Service, in

an application or environment, or other than as intended under the Agreement, (iii)

Customer’s unauthorized use of the Services, (iv) Resort Backyard acting in accordance

with Customer’s specifications or guidelines, or (v) the combination, operation or use of

the Service, with other third party product(s) not supplied by Resort Backyard.

7.1.2 DISCLAIMER OF WARRANTIES BY RESORT BACKYARD. EXCEPT AS

EXPLICITLY PROVIDED IN THE AGREEMENT, THE SERVICE (INCLUDING ANY

SOFTWARE AND DOCUMENTATION AND ANY ADDITIONAL SERVICES), AND THE

TECHNOLOGY ARE PROVIDED HEREUNDER “AS IS” and “AS AVAILABLE.”

RESORT BACKYARD MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED

OR STATUTORY, WITH RESPECT TO THE TECHNOLOGY, SERVICE, ADDITIONAL

SERVICES OR RESORT BACKYARD MARKS. EXCEPT AS EXPLICITLY PROVIDED

IN THE AGREEMENT, RESORT BACKYARD DISCLAIMS ANY AND ALL

WARRANTIES WITH RESPECT TO THE TECHNOLOGY, SERVICE, ADDITIONAL

SERVICES OR RESORT BACKYARD MARKS INCLUDING WITHOUT LIMITATION

ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A

PARTICULAR PURPOSE, AND WARRANTIES THAT THE TECHNOLOGY, SERVICE,

OR ADDITIONAL SERVICES, WILL OPERATE SECURELY, TIMELY,

UNINTERRUPTED, DEFECT-FREE OR ERROR-FREE OR THAT THE

TECHNOLOGY, SERVICE, OR ADDITIONAL SERVICES WILL MEET CUSTOMER’S

REQUIREMENTS OR THAT ALL ERRORS IN THE TECHNOLOGY, SERVICE,

DOCUMENTATION AND/OR ADDITIONAL SERVICES WILL BE CORRECTED OR

THAT CUSTOMER’S USE OF THE TECHNOLOGY, SERVICE, OR ADDITIONAL

SERVICES WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR

WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH

ANY APPLICABLE LAWS, RULES AND REGULATIONS, FOREIGN LAW, TREATIES,

AND CONVENTIONS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR

DETERMINING WHETHER THE TECHNOLOGY, SERVICE, OR ADDITIONAL

SERVICES ARE SUFFICIENT FOR CUSTOMER’S PURPOSES. RESORT

BACKYARD MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE

TECHNOLOGY’S, OR SERVICE’S,’S LOCALIZATION TO A PARTICULAR MARKET

INCLUDING WITHOUT LIMITATION LOCAL LANGUAGE, LOCAL SUPPORT OF

TAXES, PAYMENT OR SHIPPING CARRIERS. RESORT BACKYARD MAKES NO

WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS,

COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH ANY

MODULE OR FROM ANY NETWORK SITE, FLEX FEED DESTINATION, OR

THIRD-PARTY INTERFACE. WORK PRODUCT AND SERVICES PROVIDED BY

RESORT BACKYARD DO NOT CONSTITUTE CONSTRUCTION, BIDDING, OR

PERMITTING MATERIALS. STATE AND LOCAL LAWS MAY VARY WITH REGARD

TO PREPARATION OF CONSTRUCTION OR CONTRACT DOCUMENTS AND

SERVICES BY A LOCALLY LICENSED PROFESSIONAL OR OTHER THIRD PARTY

MAY BE NECESSARY AND IS OUTSIDE THE SCOPE OF THE SERVICES.

7.2 Customer represents and warrants that:

(a) the Customer Data (i) is owned (or validly licensed for all uses required under the

Agreement) by Customer or is in the public domain, (ii) does not constitute defamation,

libel, or obscenity, (iii) does not result in any consumer fraud, product liability, or breach

of contract, or cause injury to any third party and (iv) does not contain, and will not

introduce into the Technology, and/or Service, any viruses, Trojan horses, worms,

spyware, time bombs or other forms of malware, malicious code or computer

programming routines which may interfere with or disrupt the Services; (v) does not

menace or harass any person or cause damage or injury to any person or property; (vi)

does not involve the publication of any material that is false, (vii) does not violate

privacy rights or promote bigotry, racism, hatred or harm; does not constitute unsolicited

bulk e-mail, “junk mail”, “spam” or chain letters; (viii) does not constitute an infringement

of intellectual property or other proprietary rights; and (ix) does not otherwise violate

applicable laws, ordinances or regulations;

(b) it will comply with all applicable laws, rules and regulations, foreign law, treaties, and

conventions as updated from time to time related to Customer’s performance of its

obligations under the Agreement and activities that Customer undertakes in connection

with its use of the Technology and/or Services; and

(c) it will not engage in the activities prohibited in this Agreement.

8. CUSTOMER LIABILITY, ASSUMED RISKS, AND RESORT BACKYARD LIABILITY

8.1 Except as otherwise expressly stated in this Agreement, Customer agrees to use

the Service (including Additional Services), and the Technology at Customer’s own risk.

Resort Backyard shall not be liable for any actions, causes of action, suits, debts, dues,

sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts,

controversies, agreements, promises, variances, trespasses, damages, judgments,

extents, executions, claims and demands whatsoever, in law, admiralty or equity, unless

expressly stated otherwise in the Agreement. Work Product and Services provided by

Resort Backyard do not constitute construction, bidding, or permitting materials. State

and local laws may vary with regard to preparation of construction or contract

documents and services by a locally licensed professional or other third party may be

necessary and are outside the scope of the Services. All Work Product and Services is

conceptual, not done pursuant to a survey, is not necessarily to scale, and not for

construction or contract documents.

8.2 Resort Backyard is not responsible for acts, services or content posted or provided

by persons or entities other than Resort Backyard, for Customer’s exposure to such

content, or for actions Customer takes in reliance on that content. Resort Backyard has

no liability to Customer for failures based on services not provided by Resort Backyard.

8.3 Customer is solely responsible for all selection of parties with whom Customer does

business, and for terms of service of Customer’s agreements with those parties and

with network sites and flex feed destinations.

8.4 Where the Resort Backyard provides links to other sites and resources provided by

third parties, these links are provided for information only and such links should not be

interpreted as approval by Us of those linked websites, and Resort Backyard shall have

no responsibility for any use of such links.

8.5 Resort Backyard shall not, under any circumstances, be liable for any loss, delay, or

interception of Customer Data which is caused by third parties or Customer, whether

that be through general use, hacking or server failure, or any loss, corruption, hacking

or failure of the daily backups, disabling or removal of Customer Data or otherwise.

Customer acknowledges that: (a) the technical processing and transmission of

Customer Data is fundamentally necessary to use of the Service; (b) Customer Data will

be subject to transmission over the Internet, and over various networks, only part of

which may be owned and/or operated by Resort Backyard; and (c) Customer

acknowledges that Customer Data may be accessed by unauthorized parties when

communicated across the Internet, network communications facilities, telephone or

other electronic means.

8.6 Resort Backyard shall not be liable for any loss or damage caused by Customer’s

failure to comply with the Security Obligation.

8.7 Customer is responsible for any breaches of its Security Obligations or of security

that occur through Customer’s access or login credentials including as a result of

Customer’s sharing such access or login credentials, or failure by Customer to

adequately safeguard the same.

8.8 Resort Backyard shall not be liable for the functionality, availability, security or use,

and/or any losses in connection with the use of third-party applications, websites and

services, whether in connection with the Integration or otherwise. Customer uses such

third-party applications, websites, and/or services at their own risk.

8.9 In addition to any other rights afforded to us under this Agreement, Resort Backyard

shall not be liable for any breach of this Agreement by Customer.

9. LIABILITY LIMITATIONS

UNDER NO CIRCUMSTANCES WILL RESORT BACKYARD BE LIABLE FOR: LOSS

OF REVENUE; LOSS OF DATA; LOSS OF ACTUAL OR ANTICIPATED PROFITS;

LOSS OF CONTRACTS; LOSS OF THE USE OF MONEY; LOSS OF ANTICIPATED

SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL;

LOSS OF REPUTATION; LOSS OF, OR CONSEQUENTIAL OR INDIRECT LOSS OR

SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES (INCLUDING, FOR THE

AVOIDANCE OF DOUBT, WHERE SUCH LOSS OR DAMAGE IS ALSO OF A

CATEGORY OF LOSS OR DAMAGE ALREADY LISTED), WHETHER FORESEEABLE

OR UNFORESEEABLE, BASED ON CLAIMS BY CUSTOMER OR ANY THIRD PARTY

ARISING OUT OF ANY BREACH OR FAILURE OF EXPRESS OR IMPLIED

WARRANTY CONDITIONS OR OTHER TERM, BREACH OF CONTRACT,

MISREPRESENTATION, NEGLIGENCE, OTHER LIABILITY IN TORT, FAILURE OF

ANY REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE.

10. LIABILITY CAP

NOTWITHSTANDING THE FORM OR NATURE (E.G., CONTRACT, TORT,

STATUTORY, COMMON LAW, DIRECT LIABILITY OR INDEMNIFICATION,

INFRINGEMENT, OR OTHERWISE) IN WHICH ANY LEGAL OR EQUITABLE ACTION

MAY BE BROUGHT BY CUSTOMER, IN NO EVENT WILL RESORT BACKYARD BE

LIABLE FOR DAMAGES, EXPENSES, COSTS, LIABILITIES, SUITS, CLAIMS,

RESTITUTION OR LOSSES TO CUSTOMER, THAT EXCEED, IN THE AGGREGATE,

THE FEES PAID BY CUSTOMER TO RESORT BACKYARD IN THE PAST 12

MONTHS (“LIABILITY CAP”). Such Liability Cap is a maximum and shall not be used,

control or be considered if: (i) Resort Backyard’s liability or obligations are in amounts

which would be or are below the Liability Cap either pursuant to this Agreement or

otherwise or (ii) if Resort Backyard has no liability either otherwise or pursuant to

disclaimers in this Agreement including, but not limited to, sections 7.1.2, 8 and 9.

11. INDEMNIFICATION.

11.1. Customer’s Indemnification. Customer shall indemnify, defend and hold harmless

Resort Backyard and its Representatives from and against all obligations, actions, suits,

claims, demands, settlements, judgments, damages, losses, liabilities, costs and

expenses (including reasonable attorney’s fees), of whatever type or nature incurred by

Resort Backyard by reason of a third party claim or assertion brought against Resort

Backyard or its Representatives arising out of or related to: (a) Customer’s failure to

comply with or breach of the Agreement, (b) Customer Data, including without limitation

Intellectual Property infringement claims and product liability claims, and/or (c) any

negligence or willful misconduct of Customer or its Representatives.

12 GENERAL PROVISIONS.

12.1 Assignment. Customer may not assign the Agreement without Resort Backyard’s

prior written consent.

12.2 Relationship of the Parties. The parties are independent contractors. This

Agreement does not create any joint venture, partnership, agency or employment

relationship between the parties.

12.3 Entire Agreement. This Agreement constitutes the entire agreement between the

parties with respect to the subject matter hereof and supersedes any and all prior or

collateral negotiations, proposals, agreements and understandings, whether oral or

written, relating to the subject matter of the Agreement. Any representation, warranty,

course of dealing or trade usage not expressly stated in the Agreement shall not be

binding. Except as otherwise stated in the Agreement, any amendments to the

Agreement must be in writing and executed by the parties. To the extent the terms of a

subsequent writing signed by the parties’ conflict with the terms of the Agreement, the

terms of the subsequent writing control.

12.4 Severance. If any provision of the Agreement is held or made invalid or

unenforceable for any reason, the invalidity will not affect the remainder of the

Agreement and the severed provision shall be interpreted to be consistent with the

Agreement.

12.5 No Waiver. The failure of either party at any time to enforce or require performance

of any provision shall not waive or affect such party’s right to enforce any such provision

at a later time.

12.6 Exhibits. All Exhibits, Schedules and other addenda referenced in the Agreement

are incorporated into the Agreement by reference.

12.7 No Reliance. Each party represents and warrants to the other party that it is NOT

relying on any promises, guarantees and/or assurances of the other party that are NOT

otherwise expressly contained in the Agreement.

12.8 Notice. Except as otherwise explicitly provided in the Agreement, any notice

required or permitted by the Agreement shall be in writing and deemed delivered if

delivered (a) by personal delivery when delivered, (b) by overnight courier upon written

verification of receipt, (c) by certified or registered mail, return receipt requested, upon

verification of receipt, or (d) upon transmission via email to a properly addressed email

address as provided in the Customer Agreement. Notices must be sent to the contacts

and address in the Agreement, or any new address provided by the permitted notice

methods.

12.9. Governing Law, Jury Trial Waiver and Dispute Resolution. The laws of the State of

New York, without regard to its conflicts of laws provisions, govern the Agreement. Each

party irrevocably and unconditionally consents and submits to the exclusive jurisdiction

of the applicable courts located in Rockland County for purposes of any action, suit or

proceeding arising out of or relating to the Agreement THE CUSTOMER HEREBY

WAIVES, AND COVENANTS THAT THE CUSTOMER WILL NOT ASSERT

(WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL

BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION

OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT,

THE SUBJECT MATTER HEREOF OR ANY DOCUMENT RELATING HERETO, IN

EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING OR WHETHER

IN CONTRACT OR IN TORT OR OTHERWISE. THE CUSTOMER ACKNOWLEDGES

THAT IT HAS HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL

REGARDING ALL THE TERMS OF THIS AGREEMENT, INCLUDING THIS SECTION,

THAT IT FULLY UNDERSTANDS THE TERMS HEREOF, THE CONTENT AND

EFFECT, AND THAT IT VOLUNTARILY AND KNOWINGLY AGREES TO THE TERMS

HEREOF, AND THAT IN THE EVENT OF ANY AMBIGUITY IN THIS AGREEMENT,

ANY PRESUMPTION THAT SUCH AMBIGUITY SHALL BE CONSTRUED AGAINST

THE DRAFTER OF THE AGREEMENT SHALL NOT APPLY TO THIS AGREEMENT.

12.10. Force Majeure. Neither party shall be liable for failure to perform, or the delay in

performance of, any of its obligations under the Agreement other than payment if, and

to the extent that, the failure or delay is caused by events beyond its reasonable control

including without limitation acts of the public enemy or governmental body in its

sovereign or contractual capacity, war, fire, floods, strikes, epidemics, pandemics,

quarantine restrictions, unavailability of the Internet, civil unrest or riots, acts of

terrorism, transportation delays, freight embargoes or unusually severe weather. The

affected party shall use commercially reasonable efforts to avoid or remove the causes

of non-performance or delay, and shall continue performance whenever the causes are

removed.

12.11 Captions. Section headings are for reference purposes only and in no way affect

the meaning or interpretation of the Agreement.