General Operator Terms & Conditions

THESE GENERAL OPERATOR TERMS & CONDITIONS (THE “GENERAL TERMS”), THE ORDER FORM EXECUTED BY YOU AND DACK THAT REFERENCES THESE GENERAL TERMS (THE “ORDER FORM”), AND ALL APPENDICES THERETO AND OTHER DOCUMENTS REFERENCED THEREIN AND/OR HEREIN COLLECTIVELY CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND DACK GOVERNING YOUR USE OF DACK’S SERVICES (THE “AGREEMENT”). CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN HAVE THE MEANINGS ASCRIBED TO THEM IN THE ORDER FORM.

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Operator Transaction Fee Schedule
Current as of: April 15, 2023

DACK Transaction Fee: 10% of the Operator Transaction Fee

Third-Party Upsell Commission Schedule
Current as of: July 8, 2022
50% of referral commissions to be paid out monthly

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1. Acceptance of Terms. DACK’s provision and Operator’s purchase and use of the Services are subject to and governed by the terms of this Agreement. Your signature on the signature page of this Agreement constitutes your agreement to be bound by this Agreement. You represent and warrant that your use of the Services will not conflict with or result in any breach of any license, contract, agreement, or other obligation to or by which you are bound.

2. Services. During the Term, DACK will provide you and the guests patronizing your Covered Units (each, a “Guest”) with access to and use of DACK’s guest experience platform, which consists of the following (collectively, the “Platform”): (a) a back-end portal accessible to Operator through an Operator provided internet connected browser (the “Operator Portal”), (b) any DACK application programming interface that may be used by Operator to connect its systems and equipment with the Platform (the “API”), and (c) a mobile application for use by Operator’s Guests (the “Mobile App”) subject to and in accordance with DACK’s terms of use governing such app, as the same may be amended from time to time, the current version of which may be found at https://dackinc.com/terms (the “App Terms”, and DACK’s provision of all of the foregoing collectively, the “Platform Services”).

3. License to Platform and Documentation. Subject to your payment of all applicable fees and charges and the terms and conditions of this Agreement, DACK hereby grants you a limited, non-exclusive, revocable, and non-transferable license to (a) use the Platform, and (b) print, copy and internally distribute any user/product manuals and/or other documentation provided by or on behalf of DACK regarding the Platform Services (the “Documentation”) for purposes of assisting your personnel and Guests in understanding and using the Platform, in each case during the Term and in accordance with this Agreement (the “Platform License”); provided, that all copyright and other proprietary rights notices contained in any original Documentation must be reproduced and transmitted in any such copies. Operator acknowledges that the Platform License is only a limited right to use the Platform and that nothing in this Agreement transfers or conveys any ownership, title, or other right or interest in or to the Platform (in whole or in part) or in or to any software (including source and object code), designs, technology, concepts, or other intellectual property rights in or associated with any of the foregoing, all of which are hereby expressly reserved by DACK. Operator is solely responsible for ensuring that only its authorized personnel and Guests have access to and use the Platform (limited to the Mobile App for Guests), and will have primary responsibility and be liable for all such access and/or use.

4. Platform Content. The content of the Platform, such as all software, designs, text, graphics, logos, artwork, images, photographs, audio clips, video clips, audio-visual works, digital downloads, documents, button icons, and other content, information and/or materials displayed on or otherwise accessible from or on the Platform, including the selection and arrangements thereof, and the Documentation (collectively, “DACK Content”), is the exclusive property of DACK and/or its subsidiaries, affiliates, assigns, licensors, advertisers, suppliers, vendors, promotional partners, and sponsors. Nothing in this Agreement will be interpreted to convey any rights, title, or interest in or to any DACK Content. DACK does not represent or warrant that: (a) the DACK Content is accurate or complete, (b) the DACK Content is up-to-date or current, (c) the DACK Content will be updated, (d) the DACK Content is free of technical inaccuracies or typographical errors, (e) the DACK Content is free from changes caused by third parties, or (f) access to the Platform Services (or any element or part thereof) and/or any DACK Content will be free from interruptions, errors, computer viruses or other harmful components. Under no circumstances will DACK be liable for any loss or damage of any kind arising out of or relating to your or any Guest’s use, download, reproduction, distribution and/or reliance on the Platform (or any element or part thereof) or any DACK Content. DACK reserves the right to update, modify, replace, enhance, remove, and otherwise make changes to the Platform and the Platform Services from time to time without notice to Operator or any Guest, including with respect to designs, graphics and other visual elements, text, functionality, features, and other content.

5. Operator Obligations; Prohibited Use. Operator is responsible for providing and maintaining all necessary equipment, hardware, and network connectivity necessary for access to and use of the Platform and Platform Services. Operator shall cooperate with DACK and its agents, including by providing access to any equipment and network, as may be necessary for DACK to provide the Services. Operator will use (and ensure that its Guests use) the Services only as intended in accordance with this Agreement and not for any other purpose or in any other manner. In addition, at all times such use must comply with all applicable laws, rules, regulations, ordinances, judgments, decrees, governmental authorities, and court orders (collectively, “Laws’). You will notify DACK immediately if you know or have reason to suspect that there has been any unauthorized or improper use of any Service, violation of Law or other noncompliance with this Agreement. Without limiting the generality of the foregoing, you specifically agree to refrain from doing or attempting to do any of the following or authorizing, instructing, or permitting any personnel, Guest or other person to do or attempt to do any of the following: (a) Use any Service or DACK Content (in whole or in part) in any manner that is unlawful or harmful to DACK’s rights and/or the rights of any third party (including Related Parties), that is in violation of this Agreement or any Law, or for any purpose other than as intended, including, but not limited to, by uploading, downloading, displaying, publishing, performing, broadcasting, transmitting, retransmitting, modifying, creating derivative works from, reproducing (whether by linking, framing, or any other method), or otherwise exploiting the Platform Site or any DACK Content (in whole or in part); (b) alter, or destroy data on, from or through any Service or retrieve any data on, from or through any Service other than that which is made directly available to you on or through such Service; (c) probe, scan or test the vulnerability of a system or network on, from or through any Service; (d) breach or defeat system or network security measures on, from or through any Service such as authentication, authorization, confidentiality, intrusion detection, or monitoring; (e) interfere with or disrupt any Service or DACK’s business, operations or services, or those of any third party (including Related Parties); (f) interfere with or disrupt any computer, host, network, or telecommunications device maintained by or on behalf of DACK or by any third party (including Related Parties); (g) interfere with or disrupt the legitimate use of any Service by any person, including, without limitation, via means of a virus, overloading, “flooding,” “spamming,” “mailbombing,” or “crashing” any Service or any server or other computer of any other person; (h) transmit, distribute, disseminate, publish or store any information that is in violation of any Law or is defamatory, abusive, obscene, indecent, or harassing, or that threatens or encourages injury to persons or property or infringement of the lawful rights of any party; (i) violate the privacy rights of any person; (j) use any technology that is or reasonably should be known to contain software viruses, trojan horses, or any computer code, files, or programs designed to disrupt, destroy, invade, gain unauthorized access to, corrupt, observe, or modify without authorization, any of our data, software, computing or network devices, or telecommunications equipment, or those of any authorized user or of any third party (including Related Parties); (k) use any Service to send, relay, forward, bounce, reply, or otherwise route commercial or non-commercial unsolicited electronic messages or other spam; (l) copy (whether directly or by use of any scraping or similar techniques) any DACK Content; (m) falsify identification or impersonate any person or entity, including, but not limited to, a DACK representative; (n) resell, decompile, reverse engineer, disassemble, or otherwise convert any element of the Platform or any Service or DACK Content comprised of software or other code to a perceivable form; (o) gain or attempt to gain unauthorized access to any Service, account, computer system, or network connected to the Platform or other aspect of DACK’s technology infrastructure, whether through hacking, password mining, social engineering or any other means; (p) Obtain or attempt to obtain any file, materials, content or other information that is not intended to be made available to you by the owner or authorized licensor thereof or misappropriate or misuse another person’s or entity’s information; (q) publish, post, upload, download, store, copy, transmit, distribute or disseminate through any means (collectively, “Process”) any information that has been obtained illegally or that you do not have the appropriate rights to Process, or use or Process any information, including, without limitation, images, videos, and photographs, in any manner that infringes any copyright, trademark, patent, trade secret, other proprietary, publicity, or privacy right of any person or entity; (r) sublicense, lease, rent, loan or otherwise transfer to any third party the right or ability to access or use any Service, Documentation or DACK Content other than as contemplated herein; (s) use or access any Service, Documentation or DACK Content in connection with the development, marketing or sale of a competitive product or service; (t) use any Service as part of a time-share, cloud services or service bureau or on a hosted basis for its own ASP or SAAS offering; and (u) perform or disclose any benchmark or performance tests of any Service, or perform or disclose any security testing of any Service or associated infrastructure without DACK’s prior written consent, including, without limitation, network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing.

6. Onboarding and Support Services. DACK will use commercially reasonable efforts to assist Operator in integrating its property management system with the Platform and in establishing desired content for each Property managed through the Operator Portal (the “Onboarding Services”). DACK will provide Operator telephone and/or email technical support for questions, problems and inquiries regarding the Platform and Services during DACK’s regular business days and hours, and pursuant to any other specific support scheme, hours and channels as may be mutually agreed in a separate document (the “Support Services”). In doing so, DACK will use commercially reasonable efforts to respond to Operator’s technical questions, problems, and inquiries as quickly as practicable (which response may be to refer Operator to the FAQ, support, and/or other self-help section of DACK’s website or other support materials), except to the extent, in DACK’s sole discretion, any such matter may require an unreasonable amount of time, effort, cost or expense. For the avoidance of doubt, DACK makes no representation or warranty as to any specific response time or to the successful or satisfactory resolution of any question, problem, or inquiry.

7. Fees; Payment Terms; Taxes.
(a) Operator shall pay DACK all applicable fees set forth in the Order Form, these General Terms, and/or as otherwise referenced in this Agreement as, when and on the terms set forth therein and herein. To the extent the Order Form does not specify payment terms, fees owed for the Platform Services shall be paid by Operator on a monthly basis in advance. Past due balances are subject to interest equal to the lower of 1.5% per month or the maximum rate allowed by Law. Operator will be liable to DACK for all reasonable costs and expenses incurred by DACK in connection with any enforcement or collection efforts, including, without limitation, reasonable fees charged by attorneys, paralegals, and/or other collection agents.
(b) Except as otherwise expressly agreed by DACK in writing, all Onboarding Fees and all monthly recurring fees for the Platform Services must be paid with a valid credit card as set forth in the Payment Authorization Agreement attached to the Order Form as Appendix 1. Operator shall inform DACK immediately of any changes to the credit card DACK has on file (including changes in expiration date or replacement of any expired or canceled card with a new one). DACK will charge the applicable fee to your credit card automatically in advance on a monthly basis during the Term. DACK reserves the right to suspend Operator’s use of the Services and/or terminate this Agreement entirely (in each case upon email notification to Operator) in the event Operator fails to comply with this paragraph, or if DACK is unable to collect any applicable fee due to such credit card charge being denied or otherwise failing to process successfully for any reason.
(c) Operator will be responsible for all taxes, including but not limited to federal, state, and local sales, use, excise, ad valorem, value-added, taxes on royalties, withholding taxes, and/or any other taxes and duties (“Taxes”) imposed on the purchases, use, license, and/or provision of the Services hereunder. If Taxes are not specified in the Order Form or in a separate invoice and for Taxes associated with recurring fees charged for the Platform Services, Operator has a duty to self-report and will indemnify DACK should any Taxes go unreported or unpaid to a taxing authority. Notwithstanding the foregoing, each Party will be responsible for any personal property taxes on property it owns or leases, for franchise and privilege taxes on its business, and for taxes based on its income and receipts.

8. Operator Data; Platform Data. Operator owns all right, title, and interest in and to the names, addresses, reservation details, payment details, and other booking information about Operator and/or its Properties, personnel and Guests that may be submitted or transmitted from or on behalf of Operator to DACK in connection with Operator’s use of the Services (“Operator Data”). Operator is solely responsible for the accuracy, completeness, integrity, quality, and maintenance of the Operator Data. You acknowledge and agree that under no circumstances will DACK be responsible or have any liability for Operator’s or any Guest’s use of any Operator Data. Operator hereby grants DACK a perpetual, irrevocable, non-exclusive, royalty-free, worldwide, transferable, fully paid and non-assessable, license to use, copy, reproduce, adapt, combine with other data, edit and re-format, generate, store, disclose, distribute, maintain a database of, and make derivative works based upon, any and all Operator Data transmitted through the Platform or otherwise exchanged or provided in connection with this Agreement in order to provide, repair, maintain, or improve the Services. Notwithstanding the foregoing, DACK will own all right, title and interest in and to any and all information collected from users of the Mobile App, including, without limitation, names, addresses, email addresses, telephone numbers, payment information, preferences, purchase information, and other user account information, and all data, documents and any other output and/or results generated by or through queries, data feeds, and any other use of and/or access to the Mobile App and all aggregate usage data relating to Operator’s use of the Platform Services (collectively “DACK Data”). DACK hereby grants Operator a perpetual, irrevocable, non-exclusive, royalty-free, worldwide, transferable, fully paid and non-assessable, license to use, copy, reproduce, adapt, combine with other data, edit and re-format, generate, store, disclose, distribute, maintain a database of, and make derivative works based upon, any and all DACK Data transmitted from DACK to Operator through the Platform in connection with this Agreement in order to provide, repair, maintain, or improve the products and services provided by Operator to its Guests.

9. Security. Each Party will maintain commercially reasonable physical, technical, and other safeguards in order to protect the security, integrity, privacy, and confidentiality of its internal networks and facilities from malicious activity. Neither Party will have any responsibility or liability for any breach of security or consequence of the failure of the foregoing efforts to the extent caused by the other Party’s (which for Operator, includes any Guest’s) failure to secure any of its networks or facilities or any login credentials, passwords, or other access information.

10. Data Protection; Compliance with Privacy Policy. At all times, Operator shall ensure that its use of the Services complies with DACK’s then current privacy policy, as the same may be amended from time to time, the current version of which is available at https://dackinc.com/privacy-policy/, and is incorporated herein by reference. In addition, to the extent applicable to either Party, such Party represents and warrants that it complies and will continue to comply in all material respects with the California Consumer Privacy Act of 2018, as amended (codified at Cal. Civ. Code § 1798.100, et seq.) (the “CCPA”) and all regulations and judicial opinions issued related thereto. With regard to Personal Information (as defined under the CCPA) DACK possesses or controls in connection with the Services provided by it to Operator, DACK understands and agrees that it will not (a) sell (as defined under the CCPA) such Personal Information or (b) retain, use, or disclose such Personal Information except as permitted under the terms and conditions of this Agreement by and between Operator and DACK.

11. Required Consents. In order for DACK to provide and/or Operator to use the Services hereunder, DACK may need access to and the ability to use various Operator software, databases, materials, products, hardware, Operator Data and Operator trademarks, trade names, service marks, logos and other similar indicia of origin (collectively “Operator Materials”). Operator represents and warrants to DACK that Operator has obtained all consents, authorizations and/or permissions necessary for DACK to access and use each item of Operator Materials (including, without limitation, any consumer consent that may be required for DACK to handle consumer information or otherwise provide the Services) as well as any consent required for communications with individuals (collectively “Required Consents”). Operator, at its sole cost and expense, is responsible for determining and making all appropriate disclosures and obtaining all levels of consent that may be required by any applicable Law in connection with its business operations, including as they relate to Operator’s use of the Services. Operator hereby grants DACK a non-exclusive, worldwide, royalty-free, paid-up, non-assessable, transferable, and sub-licensable license in and to the Operator Materials for purposes of providing the Services hereunder.

12. Term; Termination; Suspension;
(a) Unless sooner terminated in accordance herewith, the initial term of this Agreement will commence upon the Effective Date and continue for the Initial Term set forth in the Order Form (the “Initial Term”). Unless previously terminated by either Party pursuant to any applicable provision of this Agreement, upon expiration of the Initial Term, this Agreement will renew automatically for successive one-year terms (each, a “Renewal Term” and collectively with the Initial Term, the “Term”) at DACK’s then current rates for all relevant Services (except to the extent expressly stated otherwise in the Order Form), unless either Party notifies the other in writing at least 90 days prior to the expiration of the then current Term of its desire not to renew this Agreement, in which case this Agreement will expire at the end of the then current Term.
(b) Either Party may terminate this Agreement upon written notice to the other Party in the event such other Party materially breaches any representation, warranty, covenant, or obligation under this Agreement which breach remains uncured following thirty (30) days’ written notice thereof by the non-breaching Party (which notice must describe the breach in reasonably sufficient detail), provided, however, that if the nature of the breach is such that it is not capable of being cured, if affording such cure period may cause material harm (including to reputation or goodwill) to the non-breaching Party, or in the event of Operator’s material breach of any provision of Section 5, the non-breaching Party may terminate this Agreement via written notice immediately upon the occurrence of such breach.
(c) Either Party may terminate this Agreement immediately upon written notice if (i) the other Party files a petition or action for relief under any bankruptcy, reorganization, insolvency or moratorium Law or any other Law for the relief of or relating to debtors, now or hereafter in effect, or makes an assignment for the benefit of creditors or takes any action in furtherance of any of the foregoing, (ii) the other Party discontinues its business or 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, or (iii) a decree or an order for relief is entered by a court having jurisdiction against or with respect to the other Party in an involuntary case under the federal bankruptcy laws or any state insolvency or similar laws ordering: (A) the liquidation of such Party; (B) a reorganization of such Party or its business and affairs; or (C) the appointment of a receiver, liquidator, assignee, custodian, trustee, or similar official for such Party or any of its property; and, in any such event, the failure to have such decree, order or appointment discharged or dismissed within ninety (90) days from the date of entry.
(d) Notwithstanding anything in this Agreement to the contrary, and without prejudice to DACK’s other rights and remedies, DACK may, in its sole discretion, modify, suspend or terminate the Platform License and/or one, some or all of the Services (in whole or in part, temporarily or permanently and for one, some or all Properties and/or Guests) at any time and from time to time with or without prior notice (i) with respect to any Covered Unit, in the event Operator ceases to own or control (for all purposes required under this Agreement) such Covered Unit, (ii) if DACK is unable to provide the Platform Services for any reason beyond its control, or (iii) if DACK reasonably believes that Operator’s use of the Platform Services may violate or infringe any Law or third party right or otherwise expose DACK to civil or criminal liability, or otherwise threatens the Platform.
(e) Upon the effective date of any termination or expiration of this Agreement (the “Termination Date”), (i) except as otherwise expressly stated in this Agreement, all rights and licenses that were granted to a Party under this Agreement (including, without limitation, the Platform License) will terminate automatically, (ii) Operator shall pay DACK all amounts owed for Services rendered on or before the Termination Date within five (5) business days’ of such Termination Date, (iii) upon a Party’s written request, the other Party will return to the requesting Party all originals and copies of all Confidential Information (as defined below) of the requesting Party then in such other Party’s possession or control, provided that such other Party may retain one copy of any such Confidential Information as may be necessary to enforce such other Party’s rights or defend against any claim hereunder or as otherwise may be required by applicable Law, provided further that such other Party continues to abide by all confidentiality and use obligations set forth herein with respect to any retained information, and (iv) except as provided herein, DACK will remove, delete and/or destroy any Operator Data from the Platform.

13. Ownership of the Platform.
(a) DACK owns and at all times retains such ownership in all right, title and interest in and to the Platform, the Platform Services, and all intellectual property rights (including patents, trademarks, copyrights, and trade secrets) and moral rights (including, rights of attribution and authorship) throughout the world in and to the Platform, the Platform Services, all DACK Content and all derivative works and improvements based thereon (as each of those terms or their equivalents is defined and applied under any applicable Law) (collectively, “DACK Property”). The DACK Property is protected by United States and worldwide intellectual property and other Laws, including, without limitation, those relating to copyrights, trademarks, privacy and publicity, and the regulation of communications, and any unauthorized copying, displaying, or other use of the DACK Property (in whole or in part) may violate one or more of these Laws. Some DACK Content is provided or reproduced with permission from third party sources, and that DACK Content is the property of those third-party sources. You may not reprint, republish, resell, or redistribute these materials in any form or manner without DACK’s express prior written consent or the express prior written consent of the applicable rights holder. If you violate these restrictions, you may be subject to civil and criminal penalties.
(b) This Agreement is not an agreement of sale, and no title, patent, copyright, trademark, trade secret, intellectual property, or other ownership right in or to any DACK Property is transferred to Operator hereunder. DACK reserves all rights not expressly granted hereunder and no licenses are granted by DACK to any party, whether by implication, estoppel or otherwise, except as expressly set forth herein.

14. Third Party Content. The Platform may contain links or pointers to other websites and/or mobile applications maintained by third parties, banner and general advertising, and other content and/or services provided by advertisers and other third parties (collectively, “Third Party Content”). Operator understands, acknowledges, and agrees that the inclusion of Third Party Content on the Platform does not, absent an express statement to the contrary elsewhere in the Agreement, indicate (a) an endorsement by DACK of (i) any Third Party Content provider or the business practices (including the privacy policies) thereof, (ii) the goods, services, or information provided by any Third Party Content provider, and/or (iii) the advertising, information and/or messages conveyed in any Third Party Content, or (b) any other authorization, sponsorship, affiliation, joint venture or partnership by, with or between any Third Party Content Provider and DACK and/or any Related Parties. You and/or your Guests may from time to time enter into correspondence with Third Party Content providers or otherwise participate in the Third Party Content offered through the Platform. However, all such correspondence and participation, including, without limitation, any resulting contractual agreements, are solely between you and/or your Guests and the relevant Third Party Content provider. Your further agree that DACK is not responsible for upholding any applicable terms, conditions, representations, or warranties made by Third Party Content providers or the purchase of goods and services offered by Third Party Content providers. DACK reserves the right to terminate a link to a third party website at any time and remove any other Third Party Content at any time. Linked and/or advertised third party websites and/or applications are not under DACK’s control and DACK is not responsible for their availability, content, advertising, products or materials, including any further links in a third party site or application. It is up to you and your Guests to take precautions to ensure that any third party website or application you navigate to, download or use through any Third Party Content on the Platform is free of computer viruses, worms, trojan horses and other items of a destructive nature. Neither DACK nor any of its Related Parties will, under any circumstances, be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any Third Party Content and/or any products, services, information, content, advertising, or business practices of any Third Party Content provider and/or any linked third-party sites or applications. If you and/or your Guests access or use linked third-party websites or applications, you understand, acknowledge, and agree that you and they do so at your and their own risk. Any concerns with any Third Party Content and/or any third party products, services, information, websites or applications should be directed to the provider thereof.

15. Transactions

(a) The Platform Services include functionality that enables Operator to offer its Guests the ability to book or purchase certain amenities, services, early check-ins, late check-outs, parking, and/or other products, services, enhancements, or experiences through the Mobile App (each, an “Operator Transaction”). In order to offer a particular Operator Transaction, Operator must activate such functionality through the Operator Portal and input or upload to the Operator Portal all descriptions, images, and other content relating to the Operator Transaction (collectively, “Operator Transaction Content”). In addition, Operator must upload or input to the Operator Portal any terms and conditions Operator would like to govern the offer, sale, purchase, booking, and/or fulfillment (by Operator and each Guest, as applicable) of each Operator Transaction (collectively, “Operator Transaction Terms”), which Operator Transaction Terms, along with Operator Transaction Content, will be considered “Operator Materials” for purposes of Sections 11 and 19 of this Agreement. Operator acknowledges that all offers, sales, purchases, bookings, and fulfillment of Operator Transaction constitute offers and transactions solely between Operator and its Guests and represents and warrants that Operator is not relying on the App Terms in any manner relating to any such offer, sale, purchase, booking, or fulfillment, all of which, as between Operator and its Guests, will be governed solely by the Operator Transaction Terms (if any).(b) To the extent Operator wishes to charge any fee for an Operator Transaction (an “Operator Transaction Fee”), either (i) Operator will collect such Operator Transaction Fee directly from the relevant Guest (i.e. not through the Mobile App), in which case Operator must enable the “cash” option for such Operator Transaction in the Operator Portal (enabled by default if no Stripe integration is created pursuant to clause (ii) below) and specify such payment terms in the corresponding Operator Transaction Terms, or (ii) if Operator would like to collect the Operator Transaction Fee through the Mobile App, then Operator mush establish a standard merchant account with Stripe, Inc. (“Stripe”) and connect that account to DACK’s Stripe “Connect” account (Stripe’s payment processing system for platforms). Upon Operator’s request, DACK will send Operator a unique hyperlink that Operator can click to establish this connection. Operator acknowledges and agrees that (A) Stripe will charge Operator various fees and/or costs to process each Operator Transaction in amounts determined by Stripe, which may be fixed or variable depending on the amount of the Operator Transaction Fee (collectively, “Stripe Fees”), (B) Stripe Fees will be withheld automatically from Operator Transaction Fees or otherwise charged through Operator’s Stripe account (as determined by Stripe), (C) all issues, claims, disputes, errors, chargebacks, refunds, and other matters relating to the charging, processing and/or amount of any Operator Transaction Fees and/or Stripe Fees must be addressed by Operator directly with Stripe and will not be DACK’s responsibility, and (D) if Operator chooses to enable one or more Operator Transactions, DACK will charge Operator (and Operator shall pay) a processing fee for each Operator Transaction processed through the Mobile App in the amount specified in DACK’s then current Operator Transaction Fee Schedule as of the date of such transaction (each, a “DACK Transaction Fee”). The Operator Transaction Fee Schedule is set forth above and is current as of the date specified. DACK Transaction Fees will be withheld automatically by Stripe from Operator Transaction Fees (and remitted to DACK) or otherwise charged to Operator’s account with DACK. Operator acknowledges that it is Operator’s sole responsibility to review all notices regarding increases in DACK Transaction Fees and to be aware of the then current Operator Transaction Fee Schedule at all relevant times when managing Operator Transactions, Operator Transaction Content, and Operator Transaction Terms.(c) Operator acknowledges and agrees that (i) Operator will be deemed the merchant of record for all Operator Transactions, (ii) Operator is solely responsible for all Operator Transaction Content, Operator Transaction Terms, and all fulfillment, customer service, disputes, refunds, claims, chargebacks, and other issues arising out of or relating to any offer, sale, purchase, booking, fulfillment, or failure to fulfill, any Operator Transaction, (iii) DACK’s sole responsibility with respect to any Operator Transaction is to use commercially reasonable efforts to present the Operator Transaction Content and Operator Transaction Terms provided by Operator to Guests through the Mobile App, and (iv) DACK may charge Guests a separate processing fee for each Operator Transaction processed through the Mobile App (whether or not Operator charges an Operator Transaction Fee, and whether or not DACK charges Operator a DACK Transaction Fee).(d) In addition to and/or in lieu of Operator Transactions, DACK may offer Guests the ability to book or purchase through the Mobile App certain products, services, amenities, enhancements, and/or experiences provided by one or more third parties (each, a “Third Party Upsell”). DACK will have sole discretion as to all aspects of Third Party Upsells. For certain Third Party Upsells purchased by a Guest through the Mobile App, DACK will pay Operator a commission in the amount specified for such Third Party Upsell in DACK’s then current Third Party Upsell Commission Schedule as of the date of such transaction (each, an “Operator Commission”). The Third Party Upsell Commission Schedule is set forth below and current as of the date specified. DACK will pay all Operator Commissions earned in a given calendar month within ten (10) business days of the end of such month.

16. Confidentiality.
(a) Except as provided herein, the Receiving Party (as defined below) will not at any time disclose to any person or use for its own benefit or the benefit of any third party, Confidential Information (as defined below) of the Disclosing Party (as defined below) without the prior written consent of the Disclosing Party. The Receiving Party shall limit disclosure of the Disclosing Party’s Confidential Information to the Receiving Party’s employees, contractors, auditors, and agents who have a need to know in order for the Receiving Party to perform its obligations hereunder or otherwise participate in the business relationship between the Parties contemplated by this Agreement, and who have been informed of the confidential nature of such information and are bound in writing to protect the same on terms no less restrictive than those set forth herein. Upon termination of this Agreement or upon the request of the Disclosing Party, the Receiving Party shall promptly deliver to the Disclosing Party or destroy (and certify such return or destruction upon request of the Disclosing Party) any and all such Confidential Information in its possession or control, and any copies made thereof, except to the extent necessary for the Receiving Party to enforce its rights or defend any claim hereunder and/or as otherwise required by Law, provided the Receiving Party will continue to abide by its confidentiality and use obligations hereunder so long as it retains such information.
(b) Notwithstanding the foregoing, neither Party will be liable for disclosure of Confidential Information to the extent compelled by Law, provided that the Receiving Party provide the Disclosing Party as much advance written notice of such disclosure as practicable (and except to the extent prohibited by Law). The Receiving Party acknowledges and agree that a breach of its obligations under this Section may cause harm to the Disclosing Party for which monetary damages are not a sufficient remedy. In such event the Parties understand and agree that the non-defaulting Party shall be entitled to obtain from a court of appropriate jurisdiction immediate injunctive or other equitable relief to which it may be entitled under the circumstances in addition to other remedies allowed under this Agreement and under applicable Law.
(c) The term “Confidential Information” means any non-public information of a Party (the “Disclosing Party”) that is designated as confidential, or that the other Party (the “Receiving Party”) knows or reasonably should know, based on the nature of the information and/or the circumstances surrounding its disclosure, is likely to be considered confidential by the Disclosing Party. Without limiting the generality of the foregoing, (i) Operator’s Confidential Information includes Operator Materials, personally identifiable information of Guests, and information regarding Operator’s sales, marketing, personnel matters, operations, finances, and business methods and strategy, and (ii) DACK’s Confidential Information includes the DACK Content, information relating to the DACK Property, DACK Data, the terms of this Agreement, and information relating to DACK’s proprietary methodologies, products, services, software and Documentation, including without limitation, trade secrets, patented or unpatented inventions or discoveries, improvements, designs, manufacturing techniques, materials, licenses, data collected related to the use and operation of its products and services, operating instructions, software documentation, databases, machinery designs, raw materials or product specifications, drawings, blueprints and other any technical and commercial information relating to the research, design, marketing, development, manufacture, assembly, use or sale of products or services related to the Platform, methods, data, specifications, test data and reports, evaluations, operating parameters, plans, forecasts, budget costs, suppliers, sources, customer information, and distributor information.
(d) Confidential Information does not include any information that: (i) the Receiving Party can demonstrate was rightfully in its possession prior to the date of disclosure to it by the Disclosing Party; (ii) the Disclosing Party releases to public domain; (iii) the Receiving Party can document it developed independently without reference to any Confidential Information of the Disclosing Party; or (iv) a Party can demonstrate lawfully came into its possession without any obligation of confidentiality from a third-party who had a legal right to make such information available in such manner.

17. Additional Representations and Warranties. Operator represents and warrants that: (a) all information provided in the Order Form is true, correct, current and complete; (b) at all times, all passwords, identifiers and any other access and login credentials (collectively “Credentials”) that Operator, and/or its Related Parties use in connection with the Services will be kept confidential, used properly and will not be not disclosed to any other person or entity; and (c) Operator accepts full liability for all charges incurred and/or losses suffered by DACK or any other person or entity to the extent resulting from any acts or omissions of Operator and/or its Related Parties, including, without limitation, those constituting a breach of this Agreement and those made in connection with the use of any of your Credentials, whether carried out with or without Operator’s authorization.

18. Disclaimer of Warranties; Third Party Services. (a) ALL SERVICES ARE PROVIDED BY DACK ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DACK EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATING TO THE PLATFORM AND/OR TO THE SERVICES PROVIDED HEREUNDER, WHETHER EXPRESS, IMPLIED AND/OR STATUTORY, INCLUDING, BUT NOT LIMITED TO (I) WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND (II) ANY WARRANTY THAT ANY ONE OR MORE SERVICES, OR THE PLATFORM WILL MEET OPERATOR’S AND/OR ANY GUEST’S REQUIREMENTS, OR THAT ACCESS TO AND USE OF ANY OF THE SAME WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL, WRITTEN OR ELECTRONIC, OBTAINED BY OPERATOR OR ANY GUEST FROM DACK AND/OR FROM ANY OF DACK’S THIRD PARTY SUPPLIERS WILL CREATE ANY WARRANTY REGARDING THE PLATFORM AND/OR ANY SERVICE, AND/OR THIS AGREEMENT. OPERATOR AGREES TO BEAR THE ENTIRE RISK OF ALL DAMAGE, INJURY AND LOSS TO AND OF OPERATOR, ITS RELATED PARTIES, AND ITS GUESTS FROM ANY CAUSE WHATSOEVER ASSOCIATED WITH INSTALLATION, DISTRIBUTION, OR USE OF ANY SERVICE, IMPLEMENTATION OF THE SAME AT ANY PROPERTY, AND/OR WITH CONNECTION OF ANY ASPECT OF THE PLATFORM TO ANY OPERATOR OR GUEST SYSTEM, NETWORK, OR DEVICE. IF A DISPUTE ARISES BETWEEN OPERATOR AND ANY ONE OR MORE OF ITS GUESTS, AND/OR ANY THIRD PARTIES, RELATING TO ANY OF THE SERVICES, DACK WILL HAVE NO RESPONSIBILITY OR OBLIGATION TO PARTICIPATE, MEDIATE OR INDEMNIFY ANY PARTY.
(b) OPERATOR ACKNOWLEDGES AND AGREES THAT (I) VARIOUS COMPONENTS OF THE PLATFORM AND SERVICES (E.G. SMS AND OTHER COMMUNICATIONS CAPABILITIES, PAYMENT PROCESSING, ETC.) ARE PROVIDED IN WHOLE OR IN PART BY THIRD PARTIES NOT UNDER DACK’S CONTROL, (II) DACK HAS NO LIABILITY OR RESPONSIBILITY FOR SUCH THIRD PARTY COMPONENTS, AND (III) DACK MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE FEATURES, FUNCTIONALITY, AND/OR AVAILABILITY OF ANY SUCH THIRD PARTY COMPONENTS, AND/OR THAT THE SAME WILL BE FREE OF ERRORS OR DEFECTS.

19. Indemnification. Except to the extent directly caused by the gross negligence of DACK or any of its Related Parties, Operator shall indemnify, defend and hold DACK and its Related Parties harmless from and against all claims, actions, demands, liabilities, losses, expenses, damages, judgments, fines, penalties, and costs, including reasonable fees, costs and expenses of attorneys and paralegals, and including on appeal, arising out of, resulting from, or relating to (a) Operator’s or any Guest’s use or misuse of any Service or Third Party Content, (b) violation of applicable Law, (c) any Property (including, without limitation, any condition or defect thereof, and/or any injury or damage occurring at, on or near any Property), (d) the installation, repair, maintenance and/or removal of any tangible hardware, equipment or property and/or any injury or damage arising therefrom, (e) unauthorized access to the Platform or any Service using or any other abuse or failure to secure the Credentials, (f) Operator’s failure to obtain any Required Consent, (g) any claim that any of the Operator Data, Operator Materials, or other materials or information provided by Operator or any Guest, or DACK’s use thereof in connection with and as contemplated by this Agreement, infringes or misappropriates the intellectual property or other right of any third party, (h) any Operator Transaction Content, Operator Transaction Terms, and/or any fulfillment, customer service, dispute, refund, claim, chargeback, and/or other issue arising out of or relating to any offer, sale, purchase, booking, fulfillment, or failure to fulfill, any Operator Transaction, and/or (i) any other breach of any term, condition, representation, warranty, covenant, or obligation of or set forth in this Agreement or the App Terms. DACK reserves the right to take exclusive control and defense of any claim subject to indemnification by Operator, in which event Operator shall cooperate fully with DACK in asserting any available defenses.

20. Limitation of Liability and Remedies. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DACK OR ANY OF ITS RELATED PARTIES, JOINTLY OR INDIVIDUALLY, BE LIABLE TO OPERATOR OR ANY OF ITS RELATED PARTIES (A) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, OR SIMILAR DAMAGES WHATSOEVER OR FOR ANY LOST PROFITS, INFORMATION OR DATA, BUSINESS INTERRUPTION, PERSONAL INJURY, DEATH, PROPERTY DAMAGE, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY (INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER), OR (B) WITH RESPECT TO ANY DAMAGES NOT ENTIRELY EXCLUDED IN CLAUSE (A) ABOVE, IN EXCESS OF THE AMOUNT OF FEES ACTUALLY PAID BY OPERATOR HEREUNDER FOR SERVICES PROVIDED IN THE NINETY DAYS PRECEDING THE FACTS OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING THOSE IN PREVIOUS SECTIONS) APPLY TO ALL LIABILITIES, DAMAGES, COSTS AND EXPENSES, INCLUDING THOSE ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE PLATFORM, AND/OR ANY SERVICE, AND/OR OPERATOR’S AND/OR ANY GUEST’S USE OR INABILITY TO USE OR DACK’S FAILURE TO PROVIDE ANY SERVICE, EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY, EVEN IF DACK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. For any jurisdiction that does not allow the exclusion or limitation of liability for consequential or incidental damages, DACK’s liability is limited to the maximum extent permitted by Law.

21. California Civil Code Section 1542 Notice. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, (A) OPERATOR EXPRESSLY WAIVES ANY AND ALL RIGHTS AND BENEFITS THAT IT MAY HAVE UNDER SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH STATES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

22. General.
(a) Entire Agreement. This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations, promises, and understandings, whether oral, written or electronic, express or implied. Neither Party has relied on any statement, representation and/or warranty that is not expressly set forth or incorporated in this Agreement. Any pre-printed or referenced terms in any Operator provided purchase order, order form, or other documentation relating to its purchase of Services hereunder will have no force or effect.
(b) Waiver. No failure or delay to exercise any right or remedy under this Agreement will operate as a waiver thereof; and no single or partial exercise or waiver of any such right or remedy will preclude any other or further exercise thereof or of any other right or remedy. Neither Party will be deemed to have waived any claim arising out of this Agreement, or any right or remedy under this Agreement, unless the waiver of such claim, right or remedy is expressly set forth in a written instrument duly executed and delivered by such Party; and any such waiver will not be applicable or have any effect except in the specific instance in which it is given.
(c) Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance is found to be invalid or unenforceable, (i) the remainder of this Agreement will be unaffected thereby and each remaining term or provision of this Agreement will be valid and enforced to the fullest extent permitted by Law, and (ii) the portion held invalid will be deemed modified to the least extent possible so that it becomes valid and enforceable in a manner as closely matching the original intent as possible.
(d) Notices. Any notice or other communication required or permitted to be delivered to a Party under or with respect to this Agreement must be in writing, in English, and delivered (i) by hand, (ii) by registered or certified mail postage prepaid with return receipt, (iii) by nationally recognized courier or express delivery service with tracking capability, or (iv) via email, in each case, if to Operator, to the address set forth in the Order Form, or if to DACK, to the following address: 12100 Wilshire Blvd, Suite 800, Los Angeles, CA 90025, Attention: CEO; or in each case to such other address as a Party may specify in a notice to the other Party that complies with this Section. Such notice will be deemed properly delivered, given and received, (A) for methods (i)-(iii), when delivered or refused (as confirmed by the return receipt or carrier tracking information if notice was effected by either mail or courier), and (B) for method (iv) except as set forth in paragraph (m) of this Section, upon the sender’s receipt of reply email from the recipient or other written confirmation or acknowledgement from or on behalf of recipient.
(e) Construction. The descriptive headings in this Agreement are for convenience of reference only and will not affect the interpretation of the Agreement. Throughout this Agreement, (i) words in the singular include the plural and in the plural include the singular, (ii) any obligation not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done, and (iii) all uses of the terms “including”, “include” or other variations thereof mean “without limitation” even though only some such uses may expressly state “without limitation”.
(f) Governing law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the state of California without reference to the conflict of laws principles of such jurisdiction. All disputes, claims, and/or controversies in any way relating to or arising out of this Agreement, the Platform, and/or the Services must be brought and heard exclusively in the State or, if a basis for Federal jurisdiction exists, United States Federal courts located in Los Angeles County, California. Each Party hereby irrevocably consents to the personal and subject matter jurisdiction of such courts and waives any claim that any such court represents an inconvenient or otherwise inappropriate venue or forum. Each Party agrees that a judgment in any such dispute may be enforced in any other jurisdiction by suit on such judgment or in any other manner provided by Law. EACH PARTY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF, OR RELATED TO, THIS AGREEMENT.
(g) Class Action Waiver. ANY PROCEEDING TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER PARTY MAY SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED PROCEEDINGS.
(h) Force Majeure. If the performance of any part of this Agreement by a Party is prevented, delayed or otherwise made impracticable by reason of flood or other natural disaster, riot, fire, governmental action, epidemic, pandemic (including Covid-19), labor disputes, actions or failures of the hosting or internet service provider or of any telecommunications service providers or facilities in the chain of communication to and from DACK’s server, sabotage or criminal interference with the server or any Service or any other cause beyond the reasonable control of such Party (a “Force Majeure Event”), such Party will be excused from performance to the extent that it is prevented, hindered or delayed by such cause, except with respect to Operator’s obligation to pay any fees or other amounts owed hereunder. A Party affected by a Force Majeure Event shall notify the other Party as soon as possible of the existence thereof and give notice of the termination of the Force Majeure Event and the ability to continue performance under the Agreement. If a Force Majeure Event continues for more than thirty (30) days, either Party may terminate this Agreement.
(i) No Partnership or Joint Venture. Nothing in this Agreement will be construed to create a partnership, joint venture, franchise, or employee-employer relationship among DACK, Operator or any Guest. DACK will provide all Services as an independent contractor of Operator. Neither Party is an agent of the other, and neither is authorized to make any representation, contract or commitment on behalf of the other unless specifically requested or authorized to do so in writing by an authorized representative of the other Party. No person not a party to this Agreement is an intended beneficiary of this Agreement, and no Guest or any other person not a party to this Agreement will have any right to enforce any term of this Agreement.
(j) Survival. Any provision of this Agreement that imposes or contemplates continuing obligations, including, without limitation, those regarding indemnification, confidentiality, payment, disclaimers, and limitations of liability, will survive any expiration or termination of this Agreement.
(k) Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party, except in connection with a merger, consolidation, reorganization, or sale of all or substantially all of such Party’s equity or assets, provided the surviving entity or successor in interest agrees in writing to assume and be bound by this Agreement.
(l) Counterparts. This Agreement may be executed in counterparts, by signatures transmitted by telecopier, facsimile, or other electronic means, each of which will be deemed an original and which together constitute one and the same agreement.
(m) Modification; Amendment. DACK reserves the right to modify, amend and/or supplement this Agreement (including by changing what is included with the Platform Services and/or by creating new and/or changing any existing non-recurring, variable and/or usage based fees) at any time and from time to time upon fifteen (15) days’ notice to you (which notice will be effective upon sending an email to the address listed in the Order Form or by placing a notification in the Operator Portal), provided that DACK will not increase the fee for Platform Services during the Initial Term, and provided further that DACK may increase DACK Transaction Fees upon only five (5) days’ notice. Your continued use of the Services following the expiration of such notice period will constitute your acceptance of (i) the changes referenced in the notice, (ii) any modified, amended, or superseded version of the Agreement referenced therein or posted to the Operator Portal, and/or (iii) the changes or new terms referenced in any documentation provided along with such notice. Alternatively, you may terminate this Agreement by following the procedures described in this Agreement.

23. Marketing Covenants. Throughout the Term, Operator shall (a) include in each initial correspondence sent to a booked Guest of any Covered Unit the following hyperlink (and/or any additional or substitute links provided by DACK from time to time) to download sources from which Guests can download the iOS and Android versions of the Mobile App: https://dackinc.app.link/download, and (b) promote Operator’s use of the Platform Services by doing one of the following (in a manner pre-approved by DACK, which approval will not be unreasonably withheld, conditioned, or delayed): (i) incorporating a “powered by DACK” badge or label (with embedded hyperlink to DACK’s website) into the Property search functionality on Operator’s website, (ii) including DACK’s name and logo (with embedded hyperlink) in all “Partner” or similar pages of Operator’s website, or (iii) promoting to potential Guests searching for Properties on Operator’s website the fact that they can use the Mobile App to enhance their stay. In fulfilling Operator’s obligations under this Section, Operator will use only those specific logos, hyperlinks and other branding elements provided or approved in writing by DACK and not alter the dimensions, colors, or other features thereof.