Exhibit 10.28


 





product
sale and marketing AGREEMENT


 


THIS PRODUCT SALE
AND MARKETING AGREEMENT (this “Agreement”) is made this 12th day of November, 2018 (the “Effective
Date”), by and between Calm.com, Inc., a Delaware corporation, having offices at 140 2nd Street, 3rd Floor, San Francisco,
California 94105 (“Calm”) and XpresSpa Group, Inc., a Delaware corporation, having offices at 780 Third Avenue,
12th Floor, New York, New York 10017 (“XSPA”). Each of Calm and XSPA may be referred to herein individually
as a “Party” and collectively as the “Parties”.


 


RECITALS


 


WHEREAS, Calm
is the manufacturer and distributor of Calm branded products and services, including those set forth on Exhibit A (the “Products”);


 


WHEREAS, XSPA
is the owner, operator and/or franchisor of XpresSpa branded stores (each a “Store”) throughout the United States
of America (the “Territory”);


 


WHEREAS, Calm
desires to increase its brand exposure in the Territory by collaborating with XSPA for the display, marketing, promotion, offer
for sale and sale of Products at each Store in the Territory; and


 


WHEREAS, XSPA
desires to collaborate with Calm in connection with the display, marketing, promotion, offer for sale and sale of Products at each
Store in the Territory in accordance with the terms and conditions of this Agreement.


 


NOW THEREFORE,
in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties agree as follows:


 


1. Term. Unless
this Agreement is terminated earlier in accordance with the terms of Section ‎12,
the term of this Agreement shall commence on the Effective Date and shall continue until July 31, 2019 (the “Initial Term”).
Following the Initial Term, this Agreement shall automatically renew for successive terms of six (6) months (each a “Renewal
Term”, and together with the Initial Term, the “Term”) unless written notice is given by either Party
no later than thirty (30) days in advance of the expiration of the Initial Term or the applicable Renewal Term.


 


2. Sale of Products.


 


2.01. XSPA shall use
its commercially reasonable efforts to display, market, promote, offer for sale and sell the Products set forth on Exhibit A
in all Stores throughout the Territory. The Products shall only be sold by XSPA at the retail price of the applicable Product as
set forth on Exhibit A (the “Retail Price”). For the avoidance of doubt, the Retail Price for the Products
at the Stores in the Territory (i) may only be modified by mutual agreement of the Parties, and (ii) does not include any discounts,
promotions or applicable sales taxes.


 






     


     


    

 


2.02. In addition to
the Products, Calm shall have the right to identify up to five (5) additional products, with such products and the price thereof
to be mutually agreed by the Parties, to be displayed, marketed, promoted, offered for sale and sold in the Stores in the Territory.
Such products, once agreed on by both Parties and priced in accordance with the previous sentence, shall be deemed Products set
forth on Exhibit A for the purposes of this Agreement.


 


3. Exclusivity and
Right of First Refusal


 


3.01. Throughout the
Term and for a period of six (6) months after the expiration or termination of this Agreement, neither XSPA nor any of its affiliates
shall, directly or indirectly, sell, offer for sale, market or promote any digital meditation or digital sleep products (other
than the Products), including online or in any Store in the Territory, without the express prior written consent of Calm.


 


3.02. Throughout the
Term and for a period of six (6) months after the expiration or termination of this Agreement, neither Calm nor any of its affiliates
shall, directly or indirectly, sell, offer for sale, market or promote any digital meditation or digital sleep products in any
retail location located in an airport other than in collaboration with XSPA, without the express prior written consent of XSPA.


 


3.03. Throughout the Term and for a period
of six (6) months after the expiration or termination of this Agreement, Calm shall have a right of first refusal to expand the
rights and obligations described in this Agreement to any Stores outside the Territory (the “ROFR”). XSPA shall
give prompt written notice to Calm each time it offers, proposes to offer, or has received an offer to enter into any agreement
or arrangement under which XSPA or any of its affiliates would sell, offer for sale, market, promote or undertake any similar action
with respect to any meditation or sleep digital products or similar products at any Store outside the Territory (each, a “ROFR
Notice”). Calm shall have thirty (30) business days (the “ROFR Period”) from receipt of a ROFR Notice
to exercise its ROFR with respect to the region and/or Stores described in the ROFR Notice. If Calm exercises its ROFR within the
ROFR Period, the Parties shall enter into an amendment or addendum to this Agreement to include such additional region and/or Stores.
If Calm does not exercise its ROFR within the ROFR Period, XSPA may enter into such agreement or arrangement with respect to the
applicable region and/or Stores set forth in the ROFR Notice with any third party; provided that, such agreement or arrangement
are on the same terms offered to Calm (it being understood that in the event XSPA modifies such terms, XSPA shall provide a new
ROFR Notice to Calm in accordance with this Section ‎3.02).


 


4. Marketing, Signage
and Displays.


 


4.01. With respect
to each Store in the Territory, XSPA shall use commercially reasonable efforts to:


 


(a) promptly
after the Effective Date, (i) prepare notices and consents and take all other actions reasonably necessary to obtain and maintain
approval as necessary for bulkhead signage from airport regulatory authorities or other entities whose approval is required for
such Store and install such bulkhead signage as soon as practicable thereafter, and (ii) once installed, maintain such bulkhead
signage throughout the Term;


 






     2


     


    

 


(b) allocate
at least the retail space for the display of the Products in Stores as set forth on Exhibit B;


 


(c) cause
any and all XSPA employees working in such Store to wear uniforms co-branded with Calm’s and XSPA’s Marks (as defined
herein), including shirts and lanyards (such uniform, which will be jointly designed by and mutually acceptable to the Parties,
the “Uniforms”) during normal working hours;


 


(d) display
Calm branded marketing materials in such Store (which marketing materials shall be highly visible beyond the lease line as determined
in Calm’s sole discretion), including the items set forth on Exhibit C;


 


(e) distribute
free of charge as free gifts with purchase certain Calm branded gift products (the “Gifts”), as mutually selected
by Calm and XSPA;


 


(f) distribute
free trial or discount inserts for Calm digital product subscriptions (the “Inserts”) to customers of such Store
(it being understood that such Inserts shall contain a unique promotional code enabling Calm to attribute purchases to such Store);
and


 


(g) use and
distribute to any purchaser of any Product sold at the Stores shopping bag(s) co-branded with Calm’s and XSPA’s Marks
(the “Shopping Bags”). Calm will collaborate with XSPA on the design of Shopping Bags and such design shall
be mutually agreed by the Parties.


 


4.02. Calm and XSPA
shall jointly market their activities under this Agreement to their respective user bases, including by: (a) sending at least two
(2) emails to each of their respective email marketing lists during the Initial Term that concern one or more of the Products,
(b) making at least four (4) posts across each of their respective social media channels during the Initial Term that concern one
or more of the Products and (c) marketing their activities concerning one or more of the Products under this Agreement on each
of their respective websites throughout the Term. All such emails, co-branded communications and marketing materials are subject
to the prior written approval of the Parties.


 


5. Store Operations.


 


5.01. With respect to any and all Stores
owned or operated by XSPA, as between Calm and XSPA, XSPA shall be the sole owner and operator of any and all such Stores throughout
the Territory and XSPA shall have sole management and operational control and liability with respect to such Stores and any and
all costs and expense associated with the operation and maintenance thereof. XSPA shall operate and maintain the Stores with high
standards of quality and service and shall at all times comply with any and all applicable laws in connection therewith.


 






     3


     


    

 


5.02. With respect to any and all Stores
owned or operated by any of XSPA’s Airport Concession Disadvantaged Business Enterprise partners (“ACDBE Partner(s)”)
in conjunction with XSPA, XSPA shall cause each of its ACDBE Partners to fulfill all of the obligations set forth herein with respect
to the display, marketing, promotion, offer for sale and sale of Products at each Store in the Territory owned or operated by XSPA
and such ACDBE Partner(s). As between Calm and XSPA, XSPA shall remain liable for the acts and omissions of each ACDBE Partner.
As between Calm on the one hand and XSPA and its ACDBE Partner(s) on the other hand, XSPA and its ACDBE Partner(s) shall be the
sole owners and operators of any and all such Stores throughout the Territory and XSPA and its ACDBE Partner(s) shall have sole
management and operational control and liability with respect to such Stores and any and all costs and expense associated with
the operation and maintenance thereof. XSPA and its ACDBE Partner(s) shall operate and maintain the Stores with high standards
of quality and service and shall at all times comply with any and all applicable laws in connection therewith.


 


5.03. With respect to any and all Stores
owned or operated by a third party who is not an ACDBE Partner (any such third party a “Franchisee”), where
XSPA is a franchisor, XSPA shall cause each Franchisee to fulfill all of the obligations set forth herein with respect to the display,
marketing, promotion, offer for sale and sale of Products at each Store in the Territory owned or operated by such Franchisee.
Except as otherwise set forth in this Agreement, including Section 10.03, as between Calm and XSPA, XSPA shall remain liable for
the acts and omissions of each Franchisee.


 


5.04. Calm shall have
the right, but not the obligation, to hire personnel of its choosing to be present in any Store(s) to assist in the display, marketing,
promotion, offer for sale and sale of Products, provided, however, that no more than one such person shall be present at any one
time in any store without the prior written consent of XSPA. XSPA shall permit such personnel access to each Store and the ability
to assist in the marketing, promotion and sale of the Products. For the avoidance of doubt, as between the Parties, Calm shall
remain responsible for any and all employee compensation or other benefits with respect to any such personnel.


 


5.05. Calm or its authorized designees shall
be the sole suppliers to XSPA of XSPA’s requirements for Products, Gifts, Shopping Bags, Uniforms and Inserts (collectively,
“Product Collateral”) for each Store throughout the Territory. Calm shall use reasonable efforts to fulfill
all of XSPA’s requirements for Product Collateral in accordance with the terms and conditions of this Agreement. In the event
that inventory of any Product Collateral in any Store falls below fifty percent (50%) of the initial amount of such Product Collateral
provided to such Store, XSPA shall use best efforts to advise Calm in sufficient detail to enable Calm to ship additional inventory
of such Product Collateral to such Store. The Parties acknowledge and agree that, as between the Parties, Calm shall retain legal
title to any and all Product Collateral (other than Uniforms) until sold in a Store in the Territory or otherwise disbursed in
a Store in the Territory (in the case of Gifts, Inserts and Shopping Bags) in accordance with the terms and conditions of this
Agreement. In the event Calm identifies any issue with any Product Collateral making it unsuitable for use as contemplated by this
Agreement or issues a recall with respect to any Product, XSPA shall promptly return any and all affected Product Collateral to
Calm or its authorized designees upon receiving notice of such issue or recall.


 






     4


     


    

 


6. Training.
XSPA shall provide training to any and all employees in each Store throughout the Territory regarding the display, marketing, promotion,
offer for sale and sale of Products based on training materials (including PDF documents and/or instruction videos) provided by
Calm. At XSPA’s request, Calm shall provide training to XSPA area managers and select store managers at times and locations
mutually agreed upon by the Parties regarding the display, marketing, promotion, offer for sale and sale of Products.


 


7. Collaborative
Efforts.


 


7.01. XSPA and Calm
shall jointly consult and work together in good faith throughout the Term to develop and execute a plan for the marketing, promotion
and sale of Products in all Stores throughout the Territory, including with respect to Product layout and display, in-store marketing
and promotional activities, the design of any co-branded Product Collateral or other marketing materials, and bulkhead signage
at the Stores, in each case, taking into account any plan restrictions on the Store that may be imposed by an airport regulatory
authority or other entity and all applicable laws.


 


7.02. Any Product Collateral
item or other marketing material co-branded with Calm’s and XSPA’s Marks shall be subject to each Party’s prior
review and approval, which shall not be unreasonably withheld.


 


8. Payments.


 


8.01. XSPA shall pay
to Calm on a monthly basis an amount equal to (i) fifty percent (50%) of the Retail Price for all Products sold in the Stores in
the Territory during the applicable month minus (ii) fifty percent (50%) of any commission actually paid or payable to XSPA
employee(s) or contractor(s) attributable to sales of such Products during such month; provided that in no event shall such
commission be greater than fifteen percent (15%) of the Retail Price for the applicable Product.


 


8.02. Calm shall pay
to XSPA on a monthly basis a retail commission of $20.00 for each sale of Calm digital product subscriptions (excluding, for the
avoidance of doubt, any free trial subscriptions) that result from XSPA’s distribution of Inserts and a customer’s
use of the unique promotional discount code set forth therein in accordance with the terms and conditions set forth herein (it
being understood that XSPA shall ensure fifty percent (50%) of each such commission shall be distributed to the applicable Store’s
retail employees or contractors via a pool or other format as mutually agreed to by the Parties).


 


Calm shall prepare
and maintain complete and accurate books and records covering all transactions relating to this Agreement. XSPA’s representatives
may, from time to time during regular business hours on reasonable advance notice, during the Term of this Agreement and for a
period of six (6) months thereafter, inspect and audit such books and records and examine and copy all other documents and material
in the possession or under the control of Calm with respect to the subject matter and the terms of this Agreement.


 






     5


     


    

 


After completion of
any inspection or audit pursuant to this Section 8.02, XSPA shall notify Calm of the results of such inspection and audit (the
“Calm Audit Results”). Upon receipt of such information, Calm shall have thirty (30) days (the “Calm
Review Period”) to review the Calm Audit Results.


 


On or prior to the
last day of the Calm Review Period, Calm may object to the Calm Audit Results by delivering to XSPA a written statement setting
forth its objections in reasonable detail, indicating each disputed item or amount and the basis for its disagreement therewith
(the “Calm Statement of Objections”). If Calm fails to deliver the Calm Statement of Objections before the expiration
of the Calm Review Period, the Calm Audit Results shall be deemed to have been accepted by Calm. If Calm delivers the Calm Statement
of Objections before the expiration of the Calm Review Period, Calm and XSPA shall negotiate in good faith to resolve such objections
within thirty (30) days after the delivery of the Calm Statement of Objections (the “Calm Resolution Period”),
and, if the same are so resolved within the Calm Resolution Period, the Calm Audit Results with such changes as may have been previously
agreed in writing by Calm and XSPA, shall be final and binding.


 


If Calm and XSPA fail
to reach an agreement with respect to all of the matters set forth in the Calm Statement of Objections before expiration of the
Calm Resolution Period, then any amounts remaining in dispute (“Calm Disputed Amounts” and any amounts not so
disputed, the “Calm Undisputed Amounts”) shall be submitted for resolution to the office of an impartial nationally
recognized firm of independent certified public accountants mutually agreeable to Calm and XSPA (each acting reasonably and in
good faith) (the “Independent Accountant”) who, acting as experts and not arbitrators, shall resolve the Calm
Disputed Amounts only and make any adjustments to the Calm Audit Results. The parties hereto agree that all adjustments shall be
made without regard to materiality. The Independent Accountant shall only decide the specific items under dispute by the parties
and their decision for each Calm Disputed Amount must be within the range of values assigned to each such item in the Calm Audit
Results and the Calm Statement of Objections, respectively.


 


The Independent Accountant
shall make a determination as soon as practicable within thirty (30) days (or such other time as the parties hereto shall agree
in writing) after their engagement, and their resolution of the Calm Disputed Amounts and their adjustments to the Calm Audit Results
shall be conclusive and binding upon the parties hereto.


 


If it is conclusively
determined that any of Calm’s payments due hereunder was less than the amount that should have been paid or any of XSPA’s
payments or reimbursements was more than the amount that should have been paid, all payments required to be made to eliminate the
discrepancy, plus interest, shall be made promptly upon XSPA’s demand, and, if the discrepancy in amounts due to XSPA is
greater than ten percent (10%) or more of the amount due during the period in question, Calm promptly shall reimburse XSPA for
the reasonable costs and expenses related to such inspection and audit not to exceed $5,000.00. In all other cases, XSPA shall
be responsible for any and all costs and expenses related to such inspection and audit pursuant to this Section 8.02.


 






     6


     


    

 


If it is conclusively
determined that any of Calm’s payments due hereunder was more than the amount that should have been paid or any of XSPA’s
payments or reimbursements was less than the amount that should have been paid, all payments required to be made to eliminate the
discrepancy, plus interest, shall be made promptly upon Calm’s demand.


 


8.03. Subject to the
terms and conditions set forth herein, and considering that Calm or its authorized designees shall be the sole supplier of Product
Collateral under Section 5.04 of this Agreement, Calm shall pay (or reimburse XSPA upon receipt of payment to a third party) for
all costs associated with (a) the design, manufacture, shipping, distribution and installation, as applicable, of Product Collateral
and other marketing materials and bulkhead signage as set forth in Section ‎4.01,
(b) the creation of training materials and the costs associated with training (excluding cost of labor for any XSPA employee) pursuant
to Section ‎6, (c) obtaining and maintaining approval of, and the creation, installation,
maintenance and removal of any bulkhead signage advertising pursuant to Section 4.01(a), and (d) the design, manufacture, shipping
and installation of in-store marketing changes to any Store.


 


Notwithstanding anything
in this Agreement to the contrary, Calm shall not be obligated to reimburse XSPA for any such costs described in the previous sentence
of this Section 8.03 incurred by XSPA above $500.00 unless Calm has provided prior written approval of such cost (including via
email).


 


8.04. All payments
required of XSPA hereunder shall be made to Calm in United States Dollars via wire transfers, or in such other manner as Calm shall
designate, as follows:


 


	Account Name	Calm.com, Inc.
	Account Address	140 2nd St. FL3 San Francisco, CA 94105
	Account #	3302444451
	Bank Name	SIL  VLY  BK  SJ
	Bank Address	
        3003  TASMAN  DRIVE,

        

        SANTA  CLARA,  CA 
95054 

	Fed ABA	121140399


 


8.05. All payments
required of Calm hereunder shall be made to XSPA in United States Dollars via wire transfers, ACH payment, or in such other manner
as XSPA shall designate, as follows:


 


	Account Name	XpresSpa Group, Inc.
	Account #	483044863901
	Bank Name	Bank of America
	Bank Address	
        One Bryant Park 

        New York, NY 10036 

	Fed ABA	026009593


 






     7


     


    

 


8.06. With respect
to Products sold in Stores in the Territory, XSPA shall deliver to Calm within twenty (20) days after each calendar month, a statement
(“Monthly Statement”) identifying (i) the total sales of each Product during said calendar month and (ii) the
total commission paid to XSPA employees or contractors under Section ‎8.02, which
shall include a breakdown by each individual Product and Store. Each Monthly Statement shall be fully completed and signed and
certified as accurate by one of XSPA’s senior officers.


 


8.07. XSPA shall prepare
and maintain complete and accurate books and records covering all transactions relating to this Agreement. Calm’s representatives
may, from time to time during regular business hours on reasonable advance notice, during the Term of this Agreement and for a
period of six (6) months thereafter, inspect and audit such books and records and examine and copy all other documents and material
in the possession or under the control of XSPA with respect to the subject matter and the terms of this Agreement.


 


After completion of
any inspection or audit pursuant to this Section 8.07, Calm shall notify XSPA of the results of such inspection and audit (the
“XSPA Audit Results”). Upon receipt of such information, XSPA shall have thirty (30) days (the “XSPA
Review Period”) to review the XSPA Audit Results.


 


On or prior to the
last day of the XSPA Review Period, XSPA may object to the XSPA Audit Results by delivering to Calm a written statement setting
forth its objections in reasonable detail, indicating each disputed item or amount and the basis for its disagreement therewith
(the “XSPA Statement of Objections”). If XSPA fails to deliver the XSPA Statement of Objections before the expiration
of the XSPA Review Period, the XSPA Audit Results shall be deemed to have been accepted by XSPA. If XSPA delivers the XSPA Statement
of Objections before the expiration of the XSPA Review Period, XSPA and Calm shall negotiate in good faith to resolve such objections
within thirty (30) days after the delivery of the XSPA Statement of Objections (the “XSPA Resolution Period”),
and, if the same are so resolved within the XSPA Resolution Period, the XSPA Audit Results with such changes as may have been previously
agreed in writing by XSPA and Calm, shall be final and binding.


 


If Calm and XSPA fail
to reach an agreement with respect to all of the matters set forth in the XSPA Statement of Objections before expiration of the
XSPA Resolution Period, then any amounts remaining in dispute (“XSPA Disputed Amounts” and any amounts not so
disputed, the “XSPA Undisputed Amounts”) shall be submitted for resolution to the Independent Accountant who,
acting as experts and not arbitrators, shall resolve the XSPA Disputed Amounts only and make any adjustments to the XSPA Audit
Results. The parties hereto agree that all adjustments shall be made without regard to materiality. The Independent Accountant
shall only decide the specific items under dispute by the parties and their decision for each XSPA Disputed Amount must be within
the range of values assigned to each such item in the XSPA Audit Results and the XSPA Statement of Objections, respectively.


 






     8


     


    

 


The Independent Accountant
shall make a determination as soon as practicable within thirty (30) days (or such other time as the parties hereto shall agree
in writing) after their engagement, and their resolution of the XSPA Disputed Amounts and their adjustments to the XSPA Audit Results
shall be conclusive and binding upon the parties hereto.


 


If it is conclusively determined that any
of XSPA’s payments due hereunder was less than the amount that should have been paid or any of Calm’s payments or reimbursements
was more than the amount that should have been paid, all payments required to be made to eliminate the discrepancy, plus interest,
shall be made promptly upon Calm’s demand, and, if the discrepancy in amounts due to Calm is greater than ten percent (10%)
or more of the amount due during the period in question, XSPA promptly shall reimburse Calm for the reasonable costs and expenses
related to such inspection and audit not to exceed $5,000.00. In all other cases, Calm shall be responsible for any and all costs
and expenses related to such inspection and audit pursuant to this Section 8.02.


 


If it is conclusively
determined that any of XSPA’s payments due hereunder was more than the amount that should have been paid or any of Calm’s
payments or reimbursements was less than the amount that should have been paid, all payments required to be made to eliminate the
discrepancy, plus interest, shall be made promptly upon XSPA’s demand.


 


9. Intellectual
Property Matters.


 


9.01. Subject to the
terms and conditions of this Agreement, Calm hereby grants to XSPA, solely during the Term and in the Territory, a revocable (as
set forth in ‎Section ‎‎12.04),
royalty-free, assignable (solely as set forth in Section ‎16.05), non-sublicensable
(except as set forth in Section ‎9.03), non-exclusive license to use the marks
set forth on Exhibit D (“Calm’s Marks”), solely to the extent necessary for XSPA to exercise its
rights or perform its obligations set forth in this Agreement.


 


9.02. Subject to the
terms and conditions of this Agreement, XSPA hereby grants to Calm, solely during the Term and in the Territory, a revocable (as
set forth in ‎Section ‎‎12.04),
royalty-free, assignable (solely as set forth in Section ‎16.05), non-sublicensable
(except as set forth in Section ‎9.03), non-exclusive license to use the marks
set forth on Exhibit E (“XSPA’s Marks”, and together with Calm’s Marks, the “Marks”),
solely to the extent necessary for Calm to exercise its rights or perform its obligations set forth in this Agreement.


 


9.03. Each Party may
sublicense the rights granted to such Party under Sections 9.01 and 9.02 of this Agreement to any third party vendor, supplier
or manufacturer of Product Collateral solely to the extent necessary for such Party to exercise its rights or perform its obligations
set forth in this Agreement.


 






     9


     


    

 


9.04. Neither Party
shall use the other Party’s Marks, in whole or in part, as a corporate name, trade name or domain name and shall not use
the other Party’s Marks in combination with any other mark, design or designation except pursuant to the terms of this Agreement.
Each Party shall use the other Party’s Marks in the Territory strictly in compliance with all applicable legal requirements
of the Territory. Each Party acknowledges and agrees that, as between the Parties, the other Party is the sole and exclusive owner
of the Marks licensed by such other Party pursuant to this Section ‎9 and all goodwill
associated therewith. Neither Party shall do or cause to be done any act or thing that may in any way adversely affect any rights
of the other Party in and to such other Party’s Marks or any registrations thereof or that, directly or indirectly, may reduce
the value of such Marks or detract from any Mark’s reputation, including challenging the ownership, validity or enforceability
of such Marks. Each Party agrees that it will display the trademark registration symbol ® or the designations “SM”
or “TM” adjacent to the Marks when directed to do so by the Party owning the relevant Mark and, when circumstances
reasonably permit, it will cause a notice of ownership to appear on advertisements or in store displays bearing the Marks. Each
Party will take care to display the other Party’s Marks in a manner that does not bring the other Party’s brand into
disrepute.


 


9.05. All goodwill
associated with the use of a Party’s Marks by the other Party shall inure to the sole and exclusive benefit of the Party
which owns such Mark. Each Party shall execute any documents and take any actions reasonably required by the other Party to confirm
such Party’s ownership of all rights in and to such Party’s Marks in the Territory and the respective rights of the
Parties pursuant to this Agreement.


 


9.06. In the event
that either Party learns of any infringement, imitation or counterfeiting of the other Party’s Marks or Products or of any
use by any person of a trademark similar to such Marks, it shall promptly notify the other Party thereof. Thereupon, the Party
owning the relevant Marks, or in the case of Products, Calm, shall take such action as it deems advisable for the protection of
its rights in and to its Marks and Products and, if reasonably requested to do so by such Party, the other Party shall reasonably
cooperate in all respects (at the sole costs and expense of the Party owning the relevant Marks, or in the case of Products, Calm),
including by choosing to be a plaintiff or co-plaintiff and/or by causing its officers to execute pleadings and other necessary
documents. Any action contemplated by this Section ‎9.06 shall be controlled by
the Party with ownership of the relevant Marks, or in the case of Products, Calm.


 


9.07. Any intellectual
property or moral right in any Product Collateral or other marketing materials concerning Calm or one or more Products, including
patterns, sketches, logos, designs, packaging, labels, tags, advertising materials or the like (“Product Collateral IP”)
bearing Calm’s Marks shall be, as between the Parties, the sole and exclusive property of Calm, it being understood that
XSPA shall retain sole and exclusive ownership of its Marks, including with respect to co-branded Product Collateral and any other
co-branded marketing materials concerning Calm or one or more Products. Any co-branded Product Collateral IP shall be used solely
(i) in the Stores in the Territory or (ii) in connection with digital marketing activities by Calm with respect to Calm or one
or more Products, in accordance with the terms and conditions set forth in this Agreement. If any Product Collateral IP (or any
aspect thereof) are not designed and/or created by Calm, such Product Collateral IP (or aspect thereof) shall be deemed “works
made for hire” for Calm within the meaning of the U.S. Copyright Law and/or other applicable comparable laws or, if they
do not so qualify, all ownership rights thereto shall be, and are hereby, assigned to Calm. XSPA shall not, directly or indirectly,
do or suffer to be done any act or thing which may affect adversely any of Calm’s rights in the Product Collateral IP, including
filing any application in its name to record any claims to Product Collateral IP (or any aspect thereof). XSPA shall execute any
documents and take any actions reasonably required by Calm to confirm Calm’s ownership of all rights in and to such Product
Collateral IP.


 






     10


     


    

 


10. Agency, Indemnification and Insurance.


 


10.01. Calm and XSPA
are each independent contractors. The Parties are not and shall not be considered as joint venturers, partners or agents of each
other. Neither Party shall have the authority to bind or obligate the other Party.


 


10.02. XSPA hereby
agrees to indemnify and hold harmless Calm and its affiliates and their respective directors, officers, employees and agents from
and against any and all claims, suits, alleged regulatory violations, losses, damages and costs (including reasonable attorneys’
fees) arising out of or relating to (i) any alleged action or failure to take action by XSPA in connection with the operation or
maintenance of the Stores or provision of any product or service (other than the Products), including but not limited to: violations
of applicable law, regulations or other rules; defects in XSPA sourced products or services provided or obtained therein; employment
and labor issues with respect to XSPA employees; any product liability or personal injury claims with respect to XSPA’s provision
of any product or service (other than the Products); property damage; and collection, remittance or payment of any taxes, license
fees or any other payment due to any party; (ii) the use of XSPA’s Marks by Calm as authorized by this Agreement; and (iii)
any breach of any covenant or agreement of XSPA contained in this Agreement.


 


10.03. Calm hereby
agrees to indemnify and hold harmless XSPA and its affiliates and their respective directors, officers, employees and agents from
and against any and all claims, suits, alleged regulatory violations, losses, damages and costs (including reasonable attorneys’
fees) arising out of or relating to (i) any product liability or personal injury claims with respect to any Products or Product
Collateral or any alleged defects in any Products or Product Collateral; (ii) any alleged action or failure to take action by Calm’s
employees; (iii) the use of Calm’s Marks by XSPA as authorized by this Agreement; and (iv) any breach of any covenant or
agreement of Calm contained in this Agreement.


 


10.04. In the event
any claim, action, suit or proceeding (each, a “Claim”) is brought or made against an indemnified Party for
which defense and indemnification by the indemnifying Party may be sought hereunder, the indemnified Party will promptly notify
the indemnifying Party of the commencement thereof, and the indemnified Party will be entitled to reasonably participate in (but
not assume) the defense thereof. Notwithstanding any other provision of this Agreement, the indemnifying Party shall not enter
into any settlement of any Claim without the prior written consent of the indemnified Party, except as provided in this Section
10.04. If a firm offer is made to settle a Claim without leading to liability or the creation of a financial or other obligation
on the part of the indemnified Party and provides, in customary form, for the unconditional release of each indemnified Party from
all liabilities and obligations in connection with such Claim and the indemnifying Party desires to accept and agree to such offer,
the indemnifying Party shall give written notice to that effect to the indemnified Party. If the indemnified Party fails to consent
to such firm offer within ten (10) days after its receipt of such notice, the indemnified Party may continue to contest or defend
such Claim and in such event, the maximum liability of the indemnifying Party as to such Claim shall not exceed the amount of such
settlement offer. If the indemnified Party fails to consent to such firm offer and also fails to assume defense of such Claim,
the indemnifying Party may settle the Claim upon the terms set forth in such firm offer to settle such Claim.


 






     11


     


    

 


10.05. XSPA shall obtain, and thereafter
maintain during the Term, the following insurance:


 


(a) Special form property policy
covering all stock on premises of the Store, including with respect to all Product Collateral;


 


(b) Workers’ Compensation
Insurance in the statutorily required amount (or XSPA shall participate in the appropriate state fund if such insurance is not
available or allowed), together with Employer’s Liability Insurance with a limit of $1,000,000 for each accident; and


 


(c) Commercial General Liability
insurance, (including fire liability, contractual liability, personal injury, product liability and completed operations coverage)
in the amount of not less than $3,000,000 combined single limit with umbrella liability coverage with a limit of not less than
$10,000,000;


 


The foregoing insurance policies shall name
XSPA as the insured and Calm as additional insured (except for Workers’ Compensation Insurance). If any such insurance is
on a “claims made” basis, XSPA shall maintain coverage thereunder for a period of at least two (2) years following
the termination of this Agreement. With respect to the foregoing, XSPA shall provide to Calm certificate(s) evidencing such insurance
prior to or upon execution of this Agreement. The certificates shall provide that Calm will be given at least thirty (30) days
prior written notice of cancellation or any material change in these policies. Calm shall have no obligation to XSPA for the costs
of insurance required, or for any other coverage that XSPA obtains, directly or indirectly for its own account. In no event shall
any insurer have a Best’s Insurance rating of less than (A-) of class size VII.


 


10.06. EXCEPT WITH
RESPECT TO EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, (A) UNDER NO CIRCUMSTANCE AND UNDER NO LEGAL THEORY
(TORT, CONTRACT, OR OTHERWISE), SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF OPPORTUNITY OR OTHER
SPECIAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES SUFFERED BY THE OTHER PARTY ARISING IN CONNECTION WITH THIS AGREEMENT; AND
(B) THE MAXIMUM LIABILITY OF EACH PARTY IN ANY WAY RELATED TO THIS AGREEMENT SHALL NOT EXCEED $2,000,000.00 (EXCLUDING ANY AMOUNTS
DUE AND PAYABLE PURSUANT TO SECTION ‎8 HEREUNDER).


 






     12


     


    

 


11. Representations and Warranties.


 


11.01. Calm represents
and warrants that:


 


(a) it has
the legal power and authority to enter into this Agreement and to grant the rights to its Marks granted hereunder, and the execution
and performance of this agreement does not violate or put Calm in default of any other agreement, order or judgment by which it
is bound or to which it is subject;


 


(b) Calm’s Marks do not
infringe any third parties’ rights and that the Marks were not misappropriated from any third party;


 


(c) it is
aware of and will comply with all federal, state and local laws and regulations governing the Products and the Product Collateral
in the Territory; and


 


(d) it is the sole and exclusive
owner of Calm’s Marks.


 


11.02. XSPA represents
and warrants that:


 


(a) it has
the legal power and authority to enter into this Agreement and to grant the rights to its Marks granted hereunder, and the execution
and performance of this Agreement does not violate or put XSPA in default of any other agreement, order or judgment by which it
is bound or to which it is subject: and


 


(b) it is
aware of and will comply with all federal, state and local laws and regulations governing its operation of the Stores in the Territory;


 


(c) XSPA’s Marks do not
infringe any third parties’ rights and that the Marks were not misappropriated from any third party, and


 


(d) it is the sole and exclusive
owner of XSPA’s Marks.


 


12. Termination.


 


12.01. This Agreement
may be terminated by either Party, prior to its expiration, by reason of a material breach of the terms and conditions hereof;
provided that the Party alleged to be in material breach shall have failed to cure such alleged material breach within thirty (30)
days following the receipt of a written notice from the Party alleging the material breach which notice shall describe in reasonable
detail the nature of the alleged material breach.


 






     13


     


    

 


12.02. Calm may terminate
this Agreement immediately, upon written notice, if XSPA experiences an insolvency event.


 


12.03. Beginning on
February 28, 2019, XSPA may terminate this Agreement immediately, upon written notice, if Calm has not purchased and funded the
purchase of the Second Closing Shares (as defined in the Series E Preferred Stock Purchase Agreement dated as of even date herewith
by and between XSPA and Calm) by December 31, 2018.


 


12.04. Upon termination
or expiration of this Agreement, Calm (at its sole expense) may engage a third party to audit XSPA’s inventory of any and
all Product Collateral then on hand at each Store and XSPA shall promptly return or dispose of such inventory as instructed by
Calm at Calm’s sole expense. In addition, if Calm does not provide XSPA with instructions within twenty (20) days of the
termination or expiration of this Agreement, XSPA shall be permitted to dispose of any inventory of any and all Product Collateral
then on hand at each Store. The Parties agree to promptly settle all accounting associated with such inventory of any and all Product
Collateral then on hand at each Store upon termination or expiration of this Agreement. Except as expressly set forth herein, all
of the rights granted hereunder shall automatically terminate and XSPA shall immediately cease the distribution, marketing and
sale of Products and the Parties shall discontinue all use of the other Party’s Marks.


 


12.05. The following
provisions shall survive the expiration or termination of this Agreement: Sections ‎‎
‎3, ‎9.07, 10, ‎12
and any other provision hereunder which by its terms, may reasonably be expected to survive such expiration or termination. In
addition to the foregoing, upon termination each Party shall pay to the other Party any and all amounts then owed to the other
Party.


 


13. Arbitration.
Without limiting Section ‎16.08, any and all disputes or claims arising from either
Party’s rights or obligations under this Agreement shall be subject to arbitration. Any arbitration commenced with respect
to a dispute or claim under this Agreement shall be conducted pursuant to the Commercial Arbitration Rules of the American Arbitration
Association and the Supplementary Procedures for Large, Complex Disputes then in effect (the “Rules”), except
to the extent such rules conflict with this Section ‎13. In any arbitration, New
York law shall govern, except to the extent that such law conflicts with the Rules or this Section ‎13.
The Parties further agree that each issue submitted for arbitration be submitted to a panel of three (3) impartial arbitrators
with each Party selecting one (1) arbitrator within fifteen (15) days after the commencement of the arbitration period and the
two (2) selected arbitrators selecting a third arbitrator who is experienced in the commercial retail industry within thirty (30)
days after the commencement of the arbitration period. Any arbitration hereunder shall commence within thirty (30) days after appointment
of the third arbitrator and shall be held in New York, New York, USA. No discovery by either Party shall be permitted unless the
arbitrators determine that the Party requesting such discovery has a substantial, demonstrable need. The arbitrators shall make
final determinations as to any discovery disputes and all other procedural matters. If any Party fails to comply with the procedures
in any arbitration in a manner deemed material by the arbitrators, then the arbitrators shall fix a reasonable time for compliance,
and if the Party does not comply within such period, then a remedy deemed just by the arbitrators, including an award of default,
may be imposed. The decision of the arbitrators shall be rendered no later than one hundred twenty (120) days after commencement
of the arbitration period. The costs of arbitration shall be borne by the Party against whom the arbitral decision is made. Any
judgment or decision rendered by the panel shall be binding upon the Parties and shall be enforceable by any court of competent
jurisdiction.


 






     14


     


    

 


14. Notice.
All notices required or permitted by this Agreement shall be in writing and may be delivered in person (by hand or by messenger
or courier service) or may be sent by certified mail, return receipt requested, or U.S. Postal Service Express Mail, with postage
prepaid, or by facsimile transmission during normal business hours, and shall be deemed sufficiently given if served in a manner
specified in this Section ‎14 to the addresses and facsimile numbers noted below.
Either Party may, by notice to the other, specify a different address for notice purposes. Any notice sent by certified mail, return
receipt requested, shall be deemed given on the date of delivery shown on the receipt card, or if no delivery date is shown, the
postmarks thereon. Notices delivered by United States Express Mail or overnight courier that guarantees next day delivery shall
be deemed given twenty-four (24) hours after delivery of the same to the United States Postal Service or courier. If any notice
is transmitted by facsimile transmission or similar means, the same shall be deemed served or delivered upon telephone or facsimile
confirmation of receipt of the transmission thereof, provided a copy is also delivered via delivery or mail. If notice is received
after 5:00 PM, local time of the recipient, or on a Saturday or a Sunday or a legal holiday, it shall be deemed received on the
next business day. Notice addresses are as follows:


 


If to XSPA:


 


XpresSpa Group, Inc.


780 Third Avenue, 12th
Floor


New York, NY 10017


Attn: Edward Jankowski,
CEO


Email: notices@xpresspagroup.com


 


If to Calm:


 


Calm.com, Inc.


140 2nd
St., 3rd Floor


San Francisco, CA 94105


Attn: Dun Wang


Email: legal@calm.com
and dun@calm.com


  


15. Confidentiality.
Neither Party shall, directly or indirectly, without the other Party’s consent, disclose to any third party (other than their
respective employees or representatives) any information designated in writing as confidential by other Party (including the terms
and conditions of this Agreement); provided, that the foregoing restriction shall not (a) apply to any information (i) generally
available to, or known by, the public (other than as a result of disclosure in violation of this ‎Section
‎15) or (ii) independently developed by the receiving Party, or (b) prohibit any
disclosure (i) determined in good faith by any Party to be required by any listing agreement with any applicable national or regional
securities exchange or market, securities laws or any other applicable law so long as the disclosing Party has made all reasonable
efforts to obtain confidential treatment of the terms of the Agreement in connection with such disclosure and, to the extent practicable
and legally permissible, the receiving Party provides the disclosing Party with reasonable prior notice of such disclosure or (ii)
made in connection with the enforcement of any right or remedy relating to this Agreement.


 






     15


     


    

 


16. Miscellaneous Provisions.


 


16.01. This Agreement
embodies and constitutes the entire understanding between the Parties with respect to subject matter hereof, and no prior agreements,
understandings, representations and statements, oral or written, shall have any legal effect with respect to such subject matter.
Neither this Agreement nor any provision hereof may be waived, modified, amended, discharged or terminated except by an instrument
signed by the Party against whom the enforcement of such waiver, modification, amendment, discharge or termination is sought, and
then only to the extent set forth in such instrument.


 


16.02. This Agreement
shall be governed by, and construed in accordance with the law of the State of New York. In the event of any litigation, arbitration,
or other proceeding by which one Party either seeks to enforce its rights under this Agreement or seeks a declaration of any rights
or obligations under this Agreement, the prevailing Party shall be entitled to recover from the other Party, in addition to any
other relief awarded, any and all costs and expenses incurred with respect to such litigation, arbitration or other proceeding,
including without limitation, reasonable attorneys’ fees, disbursements and costs, and experts’ fees and costs.


 


16.03. The captions
in this Agreement are inserted for convenience of reference only and in no way define, describe or limit the scope or intent of
this Agreement or any of the provisions hereof.


 


16.04. In the event
that any one or more of the provisions of this Agreement shall be determined to be void or unenforceable by a court of competent
jurisdiction, such determination will not render this Agreement invalid or unenforceable and the remaining provisions hereof shall
remain in full force and effect.


 


16.05. Neither Party
shall assign or transfer this Agreement or its rights hereunder without first obtaining the consent of the other, in writing, which
consent shall not unreasonably be withheld or delayed. Subject to the foregoing, this Agreement shall be binding upon and inure
to the benefit of the Parties hereto and their respective permitted successors and assigns; provided, however, Calm may, without
the prior written consent of XSPA, assign or otherwise transfer its rights and obligations to an affiliate of Calm or the acquirer
of all or substantially all of the assets of Calm; provided, however, that the prior written consent of XSPA shall be required
in connection with the assignment to an acquirer of all or substantially all of the assets of Calm if such acquirer’s primary
business is an airport-based provider of spa services.


 






     16


     


    

 


16.06. For the convenience
of the Parties, this Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same document.


 


16.07. No waiver by
either Party, whether express or implied, of any provision hereof, or of any breach or default thereof, shall constitute a continuing
waiver of such provision or of any other provision of this Agreement. Acceptance of payments by Calm shall not be deemed a waiver
by Calm of any violation of or default under any of the provisions of this Agreement by XSPA. Also, if for any reason any acts
or omissions by XSPA hereunder not in conformance with any of the requirements hereof are not objected to by Calm from time to
time, such a failure to object shall not be deemed a waiver by Calm of any such requirement and Calm may insist upon due performance
thereof by XSPA at any time.


 


16.08. The Parties
acknowledge that irreparable injury would be caused by any breach or threatened breach by the other Party of any of the provisions
of this Agreement and both Parties shall have the right to enforce the specific performance of the Agreement and to apply for injunctive
relief against any act which would violate any of its provisions.


 


[signatures on following
page]


 




     17


     


    

 


IN WITNESS WHEREOF,
the Parties have executed this Agreement as of the date first above written.


 


	 	XpresSpa Group, Inc.
	 	 
	 	 
	 	By:	/s/Edward Jankowski
	 	Name:	Edward Jankowski
	 	Title:	 


 


 


	 	Calm.com, Inc.
	 	 
	 	 
	 	By:	/s/ Michael Acton Smith


 




     18


     


    

 


Exhibit A





 




     19


     


    

 


Exhibit B





 




     20


     


    

 


Exhibit C


 


 




     21


     


    

 


Exhibit D





 




     22


     


    




 


Exhibit E


 






     23