micros ImagInn Property Management System SUPPORT TERMS AND CONDITIONS Revision: 12-07 These terms and conditions will be incorporated by reference in and apply to the Service Proposal/Invoice issued by MICROS Systems, Inc. ( MICROS ) to a licensee ( Licensee ) for support services. The Service Proposal will identify (A) the MICROS intellectual property ( Intellectual Property ) for which MICROS will be providing support services, (B) the applicable Coverage Periods, and (C) the price for services. The Invoice will reflect the same information. The Service Proposal/Invoice may contain other site-specific information. The Service Proposal/Invoice, read in conjunction with these terms and conditions, form the maintenance services agreement ( Agreement ) between Licensee and MICROS. 1. Support. 1.1 Support Services. MICROS agrees to provide application support for the MICROS Intellectual Property to the Licensee from MICROS s premises, such support consisting exclusively of the following services ( Support ): a. Telephone Consultation: MICROS shall be available for consultation and support by telephone on MICROS s premises 7 days per week, 24 hours per day. No consultation or support shall be provided with respect to interference from other software programs not supplied by MICROS that have the effect to alter files stored on the MICROS Intellectual Property. Consultation relating to hardware shall be provided only if such hardware is covered under a hardware maintenance agreement with MICROS. b. Remote Service: MICROS agrees to be available for review of MICROS Intellectual Property and related files, provided that such MICROS Intellectual Property and files are supplied on-line to MICROS by the Licensee via a suitable modem, software package and stable communication connection. c. Maintenance: Provided Licensee is not in default hereunder, and to the extent that MICROS has developed such, MICROS shall make available to the Licensee, either in machine readable form or where appropriate in writing, the Error Corrections (defined as any and all software code designed to correct known, documentable, and reproduceable defects in the Intellectual Property), if any, and the Modifications (defined as any and all standard maintenance releases directly relating to the Intellectual Property, but do not include new modules, next generation products or releases, or customized enhancements or developments), if any, to the MICROS Intellectual Property. In the event that MICROS determines that errors reported by Licensee are caused by Licensee s misuse or misconduct, MICROS reserves the right to charge Licensee for any and all expenses associated with error diagnostic procedures. Notwithstanding anything to the contrary herein, MICROS is under no obligation to produce or create Error Corrections or Modifications, and the production or creation of such is at the sole discretion of MICROS.
MICROS shall not provide any support necessitated by, and disclaims all damages arising in connection with, data corruption or disruption or modification of the Intellectual Property caused by third party software or third party interfaces. 1.2 Licensee s Upgrade Requirement. Licensee shall be required to install: (i) all Error Corrections within 6 weeks of being made available to Licensee; and (ii) all Modifications within 6 months of being made available to Licensee. MICROS reserves the right not to provide Support to Licensee if Licensee fails to install the Error Corrections and Modifications in accordance with the terms hereof. All Support to be provided under the Agreement shall be provided to the Licensee and its employees only. 1.3 Assignment. MICROS reserves the right at any time to transfer or assign the Support Agreement or Support Services, or a portion thereof, to another independent entity. 1.4 Connectivity. Licensee shall install and maintain, at its expense, a modem or broadband connection complying with MICROS specifications, software package, and stable communication connection to facilitate MICROS s provision of Support services. MICROS disclaims any liability hereunder, and Licensee waives any claims hereunder, if MICROS is prevented or limited in providing support to Licensee as a result of Licensee s failure to comply with its obligations in this Section 1.4 or if communication between MICROS and Licensee is disrupted by force majeure. 2. Payment Obligations. 2.1 Support Fees. During the term hereof, Licensee shall pay Support Fees, as specified in Section 2.2 of the Agreement. Any discontinuation of use by Licensee of the Intellectual Property, or any portion thereof, or withholding by MICROS of support as a result of Licensee payment breach hereunder, shall not cause any reduction in the Support Fees. MICROS reserves the right to increase the Support Fees payable hereunder upon 3 months notice. Any annual increase shall not exceed the greater of 10% per year, or CPI for the immediately preceding 12 month period. CPI shall be defined as the U.S. Consumer Price Index, all urban Consumers, all items (or equivalent successor index), published by the Bureau of Labor Statistics of the U.S. Department of Labor. If the increase should be greater than 10% per year, or CPI for the immediately preceding 12 month period, the Licensee shall be entitled to give notice of termination of all mutual obligations hereunder, irrespective of any minimum term which may have been agreed, observing 3 months written notice. Licensee s notice of termination hereunder must be received by MICROS within 1 month from the notification of the support fee increase. 2.2 Payment Dates. The Support Fees shall be due and payable annually in advance, immediately upon receipt of the invoice. Support Fees shall begin to accrue upon delivery of the Intellectual Property. 3. Third Party Support. 3.1 Hardware and Operating System. Licensee agrees to purchase, install and maintain all necessary or appropriate hardware and/or operating system(s) as recommended and agreed with MICROS. All hardware, network and related systems, operating system(s), ongoing support and upgrades are the responsibility of Licensee. 3.2 Miscellaneous Third Party Software. Licensee agrees to purchase, maintain appropriate third party software as recommended or required by MICROS.
4. Termination Rights. MICROS shall have the right to terminate Support upon the earliest of the following: (i) Licensee s breach of the Agreement, including without limitation its obligations with respect to Support; (ii) Licensee s failure to install Error Corrections or Modifications in accordance with the terms hereof; (iii) Licensee s failure to pay invoices to MICROS when due; or (iv) at any time, upon 6 months prior written notice, effective on or after the third anniversary hereof. 5. Exclusions and Disclaimers. 5.1 Exclusions. The following services are not included in Support services to be provided hereunder. Upon Licensee s request, MICROS will use reasonable efforts to provide the services listed below at MICROS s prevailing rates for such services, subject to any exceptions indicated below. If any such services cannot be provided remotely, Licensee agrees to pay MICROS s costs of on-site service, which will include a daily labor rate plus all travel, accommodations and other reasonable expenses incurred by MICROS s employees, subcontractors or agents in connection with the provision of such services. A. Systems Maintenance and Monitoring Services including but not limited to: 1. Configuration of printers, workstations, servers, or tape backup 2. Repair/troubleshoot of operating system, hardware, third party applications 3. Diagnosis/resolution of issues with tape backup systems, i.e. identifying media controller or media issues 4. Diagnosis/resolution of issues with server or workstation hardware, i.e. drive failures, server RAID array issues, RAM faults, network card issues 5. Diagnosis/resolution of issues with printer hardware or printer drivers 6. Diagnosis/resolution of issues with network infrastructure 7. Install/re-install of workstations,,, operating systems 8. Re-configuration of the Intellectual Property as a result of relocation of hardware or network changes 9. Install/re-install or reconfiguration of back-up software, re-creating media labels 10. Recovering corrupted database 11. Restoring database from previously made backup 12. Monitoring available storage capacity on the database servers 13. Monitoring alerts and error logs generated by the server operating system, 14. Monitoring proper functioning of the database backup 15. Install/re-install/update restore disks. B. Application Management Services including but not limited to: 1. Planning and execution of upgrades of installed MICROS applications 2. Administration of MICROS application users, i.e. creation/update/granting permissions 3. Applying a change to the configuration of MICROS applications that may be necessary due to a change in business rules or third party software/hardware setup, i.e. adding or modifying rooms, transaction codes, rate codes, interface code conversion tables, add new keycard encoders, enable/disable features, etc. 4. Install/re-install/reconfigure property interface software
5. Install/re-install/reconfigure integration software, i.e. installation and testing of new interface 6. Changes to customized forms, i.e. folio; registration card; A/R statement; reminder letters; confirmation letters; message formats; receipts 7. Modification of customized reports, reports that are created via simple report writer, or creation of new reports. 8. Creation/implementation of data correction scripts, if needed as a result of user action 9. Screen painting, i.e. changing layout of fields or adding conditions/fields. C. Training Services including but not limited to: Re-training in ImagInn property management systems and associated products (Interfaces,, etc.). **During the first 90 days after installation is complete, MICROS will provide up to 30 minutes of re-training at no additional charge, unless Licensee requires the additional training to occur at its site. After the first 90 days after installation is complete, MICROS will provide up to 15 minutes of additional re-training at no additional charge, unless Licensee requires the additional re-training to occur at its site. All re-training beyond the amounts stated is billable. 5.1 Disclaimers. MICROS does not provide and database administration. It is the obligation of Licensee to administer, maintain, update, enhance, and purge its database. MICROS disclaims any liability in connection with database administration including data merging, data purging, and data corruption. 5.2 Disclaimer of Implied Warranties. THE WARRANTIES EXPRESSLY SET FORTH HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE CONCERNING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ACCURACY OR USE. MICROS DOES NOT WARRANT OR GUARANTEE THAT THE INTELLECTUAL PROPERTY (OR THE SUPPORT PROVIDED HEREUNDER) WILL SATISFY LICENSEE S REQUIREMENTS, OR THAT THE OPERATION OF SUCH WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT FOR EXPRESS WARRANTIES STATED IN THIS AGREEMENT, IF ANY, THE SOFTWARE (OR SERVICES) PROVIDED HEREUNDER IS PROVIDED WITH ALL FAULTS AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE LICENSEE. 5.3 PABP Disclaimer. Licensee acknowledges and agrees that it has been advised that the Intellectual Property does not satisfy the credit card security association s PCI Payment Application Best Practices ( PABP ) standards and is therefore not PABP compliant (hereinafter in this section, non-compliant Intellectual Property ). Licensee further acknowledges and agrees that it has been advised that continued use of the non-compliant Intellectual Property could result in legal claims against the Licensee, including significant fines and penalties. MICROS hereby disclaims any and all warranties, express or implied, including, but not limited to, those concerning merchantability and fitness for a particular purpose or use, and Licensee assumes the entire risk as to the continued use of the non-compliant Intellectual Property. MICROS disclaims any and all direct,
consequential, incidental, indirect or special damages, including lost profits, business interruption, or other incidental, punitive, or economic damages, whether arising from Licensee s continued use (or inability to use) of noncompliant Intellectual Property, support provided, or otherwise, even if advised of the possibility of such damage. Licensee expressly waives any right to refund, damages or other compensation. Licensee agrees that it will indemnify, defend and hold harmless MICROS, its officers, directors, employees, affiliates and agents from any and all losses, claims, damages, expenses, other liabilities and causes of action of every nature whatsoever, including attorneys fees, which arise, directly or indirectly, in connection with Licensee s continued use of the non-compliant Intellectual Property. MICROS reserves the right to discontinue support of the non-compliant Intellectual Property upon 30 days notice. 6 LIMITATION OF LIABILITY. 6.1 Scope of Damages. MICROS AND ITS AFFILIATES SHALL NOT BE RESPONSIBLE TO THE LICENSEE OR ITS AFFILIATES FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, BUSINESS INTERRUPTION, OR OTHER INCIDENTAL, PUNITIVE OR ECONOMIC DAMAGES (INCLUDING THOSE ASSOCIATED WITH IMPROPER, UNDER-CALCULATED OR UNDER- ACCRUED TAXES OR GOVERNMENT LEVIES), WHETHER ARISING FROM THE LICENSEE S USE (OR INABILITY TO USE) OF THE SERVICES PROVIDED IN CONNECTION HEREWITH, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. MICROS SHALL NOT, BY REASON OF THE DISCONTINUATION OR MODIFICATION OF ANY SUPPORT SERVICES OR THE TERMINATION OR NON-RENEWAL OF A MAINTENANCE SERVICES AGREEMENT OR THIS AGREEMENT, BE LIABLE TO THE LICENSEE FOR COMPENSATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF THE LOSS OF PROSPECTIVE PROFITS, OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS OR COMMITMENTS MADE IN CONNECTION WITH THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE OF THE LICENSEE S BUSINESS. IN NO EVENT SHALL THE LICENSEE BE ENTITLED TO RECOVER OR COLLECT ANY DAMAGES IN THE AGGREGATE IN EXCESS OF AN AMOUNT EQUAL TO THE FEES PAID HEREUNDER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE LICENSEE S FIRST CLAIM OF ALLEGED DAMAGES. 6.2 It is Licensee s responsibility to have and maintain in place virus protection software and security for all of its systems and data, which such security includes firewalls, passwords, physical security, and access control policies. If Licensee s systems have persistent connections to the Internet, or transmit credit card or gift card transactions over the Internet, or use MICROS or 3 rd party SSL to transmit credit card or gift card transactions, or otherwise have persistent connections to any network where there is potential for unauthorized access, Licensee acknowledges that the security and protection of the network and the data and applications on that network, including protections against unauthorized access, is solely and entirely Licensee s responsibility. A properly configured firewall is required for each site using a persistent connection to
the public Internet or any private network where there is a potential for unauthorized access to the MICROS Network. Licensee acknowledges that, to be effective, virus protection software, system passwords, and other security software require periodic and routine updates, which Licensee must obtain from its supplier or the manufacturer, as appropriate. MICROS DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, THAT, AFTER THE INITIAL INSTALLATION BY MICROS OF ANY MICROS- PROPRIETARY SOFTWARE, THE SOFTWARE OR LICENSEE S DATA WILL REMAIN VIRUS-FREE. SUPPORT OR SERVICES HEREUNDER NECESSITATED BY COMPUTER VIRUSES, OR BY ANY FAILURE OR BREACH OF LICENSEE S SECURITY FOR ITS SYSTEMS OR DATA, INCLUDING, WITHOUT LIMITATION, DAMAGE CAUSED BY PERSONS LACKING AUTHORIZED ACCESS, ARE NOT COVERED UNDER THIS AGREEMENT, AND WILL BE SUPPLIED ONLY UPON LICENSEE REQUEST AND ON A REASONABLE EFFORTS BASIS, ON A TIME-AND-MATERIALS BASIS AT STANDARD MICROS RATES. LICENSEE WAIVES ANY CLAIMS HEREUNDER AGAINST MICROS TO THE EXTENT ARISING FROM LICENSEE S FAILURE TO HAVE OR MAINTAIN CURRENT VIRUS PROTECTION, OR TO THE EXTENT ARISING AS A RESULT OF A FAILURE OR BREACH OF LICENSEE S SECURITY FOR ITS SYSTEMS OR DATA, OR AS A RESULT OF ANY UNAUTHORIZED ACCESS TO LICENSEE S SYSTEMS. IF REQUESTED BY LICENSEE, MICROS SHALL PROVIDE, ON A REASONABLE EFFORTS AND ON A TIME-AND-MATERIALS BASIS, SUPPORT OR SERVICES TO ADDRESS DAMAGE CAUSED BY, BUT NOT LIMITED TO, ANY OF THE FOLLOWING: LICENSEE S FAILURE TO HAVE CURRENT VIRUS PROTECTION; LICENSEE S FAILURE TO MAINTAIN VIRUS PROTECTION; DAMAGE ARISING AS A RESULT OF A FAILURE OF LICENSEE S SECURITY FOR ITS SYSTEMS OR DATA; DAMAGE ARISING AS A RESULT OF A BREACH OF LICENSEE S SECURITY FOR ITS SYSTEMS OR DATA; OR DAMAGE AS A RESULT OF ANY UNAUTHORIZED ACCESS TO LICENSEE S SYSTEMS. SUCH SUPPORT AND SERVICES SHALL BE BILLED AT THE PREVAILING STANDARD MICROS RATES. 7 All notices, authorizations, and requests in connection with this Agreement shall be deemed given on the day they are sent by air express courier, charges prepaid, to the attention of both the President and General Counsel of the recipient, and addressed as provided on the Service Proposal. 8 This Agreement shall be construed in accordance with and be governed by the laws of the State of Maryland, United States, excepting the conflict of law rules of the State of Maryland, as if this contract were made and to be performed entirely within the State of Maryland. The parties mutually consent to exclusive jurisdiction and venue in the state and federal courts sitting in the State of Maryland. The parties consent to the exclusive jurisdiction and venue of the federal courts sitting in the State of Maryland for all claims or actions arising under or relating in any way to this Agreement or the relationship between the parties, whether sounding in contract, tort, common law, or otherwise, and regardless of whether persons or entities who are not party to this Agreement are parties to such action; provided, however, that, for any claims or actions for which the federal courts sitting in the State of Maryland would not have subject matter jurisdiction, the parties shall bring such claims or actions in the state courts of the State of Maryland, and consent to the exclusive jurisdiction and venue of the state courts of the State of Maryland for all such claims or actions. MICROS AND LICENSEE EACH
UNCONDITIONALLY AND IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS AGREEMENT, ANY DEALINGS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF, AND/OR THE RELATIONSHIP BETWEEN THE PARTIES, WHICH WAIVER IS INTENDED TO INCLUDE, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. 9 No Assignment. Licensee may not, and is expressly prohibited, from assigning or transferring this Agreement or its respective rights and obligations hereunder. Additionally, in the event of any Licensee merger, consolidation, stock purchase, stock sale or reorganization (the Event ), the rights and benefits accorded hereunder shall not be assignable and shall not inure to any entities and locations not affiliated with the Licensee prior to the Event. Nothing hereunder shall prevent or restrict Licensee from changing its trading commercial name or its affiliation with a management company, provided Licensee gives MICROS prompt written notice of any such change. 10 Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. 11 No Waiver. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. 12 Force Majeure. Neither party shall be responsible for delay or failure in performance resulting from acts beyond its control. Such acts shall include, but not be limited to an act of God, an act of war, riot, terrorism, an epidemic, fire, flood or other disaster, an act of government, or a strike or lockout. 13 No Set Off. The Licensee shall not be entitled to set off or reduce any of its claims against or by claims of MICROS, or to avail itself of a right of retention under civil or commercial law, except where the Licensee s right of claims have been confirmed pursuant to a valid court order to which MICROS is subject. 14 Claims for Damages. Any claims for damages under this Agreement shall be subject to the applicable statutory limitation periods or to a limitation period of one year from the date on which the party asserting the claim had knowledge of the facts underlying such claim, whichever is shorter. 15 Section Headings. The Section headings used in this Agreement and the attached Schedules are intended for convenience only and shall not be deemed to supersede or modify any provisions. 16 Entire Agreement. MICROS representatives may have made oral statements with respect to the Intellectual Property. All such oral statements do not constitute warranties, shall not be relied upon by Licensee, and are not part of this Agreement. Upon execution by both parties, this Agreement shall constitute the entire agreement
between the parties with respect to the subject matter hereof and shall merge all prior and contemporaneous communications. It shall not be modified except by a written agreement dated subsequent to the date of this Agreement and signed on behalf of Licensee and MICROS by their respective duly authorized representatives.