In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write unambiguous answers to the questions and your answer must refer a specific phrase from the paragraph. If multiple answers seem to exist, write the answer that is the most plausible.

Example Input: Exhibit 99(h)(3) WHOLESALE MARKETING AGREEMENT THIS AGREEMENT is entered into effective as of the 24t h day of August 2018, by and among ALPS Distributors, Inc., a Colorado corporation (the Distributor) and S2K Financial LLC, a Delaware limited liability company (S2K). WITNESSETH: WHEREAS, the Distributor has entered into a Distribution Agreement with each fund set forth in Exhibit A hereto, each a Delaware statutory trust and each of which is registered under the Investment Company Act of 1940, as amended (the 1940 Act), as a closed-end management investment company (each a Fund and collectively referred to as the Funds); WHEREAS, the Distributor is the distributor of each Fund and enters into broker-dealer selling agreements (Selling Agreements) with respect to each such Fund; WHEREAS, the Funds' shares may be sold by broker-dealers registered with the Securities and Exchange Commission (the SEC) and the Financial Industry Regulatory Authority (FINRA); and WHEREAS, the Distributor wishes to retain S2K, through registered representatives of S2K (Authorized S2K Representatives), to introduce the Funds to registered representatives of broker-dealers and registered investment advisers located at the financial institutions (each, an Intermediary and collectively, Intermediaries) that may have customers interested in investing in a Fund. NOW, THEREFORE, in consideration of these premises and of the mutual covenants and agreements hereinafter contained, the sufficiency of which is hereby acknowledged by the parties, the parties hereto agree as follows: 1. Services Provided by S2K. S2K agrees, subject to the provisions of this Agreement, through its Authorized S2K Representatives, to use its reasonable best efforts to market the Funds to the Intermediaries, and to identify, refer and/or introduce Intermediaries to the Funds. In connection therewith, S2K may (i) engage in seminars, conferences and media interviews for financial intermediaries; (ii) distribute sales literature and other communications (including electronic media) regarding the Funds, subject to review and approval of such material by the Distributor; and (iii) perform other services reasonably contemplated in writing by S2K and the Distributor. S2K shall not act as an underwriter in connection with S2K's wholesale activities relating to shares of the Funds where S2K receives all or substantially all of the sales load, as set forth in each Fund's then-current prospectus (Prospectus). S2K will market the Funds to Intermediaries that: (a) are registered as broker-dealers with the SEC, FINRA, and any other applicable jurisdiction in which they operate and are required to be so registered by law;

Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018





(b) will enter into a Selling Agreement agreed to by Distributor and such broker-dealers, or in such other form of Intermediary agreement (which shall include, without limitation, broker/dealer Selling Agreements, platform agreements and wirehouse agreements) as required by an Intermediary with the Distributor to sell shares of the Funds to investors (copies of which shall be made available to S2K); and (c) will sell shares of the Funds through representatives in accordance with the then-current applicable Prospectus and in accordance with the provisions of the Selling Agreement. 2. Services Provided by the Distributor. (a) The Distributor will coordinate the completion and execution of Selling Agreements with broker-dealers and/or Intermediaries. (b) Advertising and Sales Literature Review (i) The Distributor shall provide review of broker-dealer related advertising and sales literature pieces (marketing pieces) submitted to Distributor by S2K. Documentation (which shall include electronic correspondence) not defined as marketing pieces, which shall include, but is not limited to, correspondence and materials provided directly in response to due diligence requests, shall be principally reviewed and approved by S2K. (ii) Distributor's services are based on the understanding that S2K will utilize current systems and expertise owned by Distributor, specifically the AdLit Advertising Review System (AdLit), and that Distributor will base its reviews on: (i) the guidelines contained within Distributor's Sales and Advertising Guide and Distributor's Written Supervisory Procedures; (ii) rules and guidance issued by FINRA and the SEC related to communications with the public and/or communications to institutional investors, as those terms are defined in FINRA Rules 2210 and 2211 and in various other FINRA and SEC rules and interpretive material; and (iii) Distributor's submission guidelines with respect to the use of trademarked and/or copyright materials, to the extent applicable. All material submitted to Distributor will be provided by Distributor to S2K with comments or approval no later than three business days after receipt in AdLit. (iii) Each marketing piece submitted to Distributor for review will be subject to the following process: a) Each piece will undergo review at Distributor by a FINRA-licensed registered principal possessing the required expertise and appropriate license to review the marketing piece submitted to Distributor; b) Distributor's comments shall consist of (i) recommendations for changes that, in the opinion of the Distributor reviewer, will be consistent with the guidelines specified by Distributor in Section 2(b)(ii) above, or (ii) in the form of an acknowledgement that the submitted material is consistent with such guidelines with no additional changes. In the event of the latter, the item will be approved by the registered principal and filed with the applicable regulatory body if necessary;

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Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018





c) Distributor will provide system training and ongoing consulting with respect to advertising review guidelines and rules for each marketing piece submitted via the process described herein; and d) Distributor will make all required FINRA filings of marketing materials which have been approved by Distributor. (iv) If S2K wishes Distributor to perform an expedited review of marketing pieces within one business day of Distributor' receipt of such marketing pieces, the expedited review will be performed subject to and in accordance with the following: a) A charge of $250 will apply to each request for expedited review, in addition to FINRA filing fees. b) The marketing piece must be 30 pages or less in actual length in order to be considered for expedited review. Web pages and other marketing pieces over 30 pages require a more in-depth review; therefore, Distributor cannot guarantee a one business day review for these items. c) The marketing piece must be submitted via Distributor's AdLit system by no later than 3:00 P.M. Mountain Time (2:00 P.M. PT/5:00 P.M. ET) on a business day in order to ensure that the Distributor has a full one business day to review and provide S2K with comments within such one business day timeframe. d) S2K must check the box on the AdLit coversheet whereby S2K requests and accepts the terms and fee(s) associated with expedited review in order to ensure that Distributor is notified of the expedited request. e) Distributor cannot guarantee that a marketing piece will be APPROVED within one business day of being received via AdLit. Distributor will review and submit comments to S2K within this timeframe. If Distributor fails to provide S2K with comments within one business day, the $250 expedited review charge will not apply. 3. Performance Requirements. S2K shall devote sufficient staff and expenditures to the performance of its services as shall be consistent with industry standards for the marketing of shares of the Fund. S2K shall perform these services in a professional and competent manner and shall provide such office space and equipment, telephone facilities and personnel as it determines may be reasonably necessary or beneficial in order to provide such services at no cost to the Distributor. 4. Duration and Termination. The term of this Agreement shall commence on the Effective Date and shall end on the 60th day following a written notice from one party to the other of its decision to terminate this Agreement at the end of such 60-day period or upon termination of the applicable Distribution Agreement with respect to a Fund. Termination of this Agreement as to a Fund shall not terminate this Agreement with respect to any other Fund so long as such other Fund's (or Funds', as the case may be) Distribution Agreement is effective. If this Agreement is terminated by one party, it shall terminate the entire Agreement.

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Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018





5. Compensation; Expenses (a) As described in the Fund's Prospectus, the Fund may impose a sales charge load in connection with the purchase of shares of the Fund, a portion of which will be paid to S2K pursuant to the terms and conditions of the Prospectus. (b) In consideration of the marketing, sales and other related activities provided by S2K, the Distributor may compensate S2K for such services on each Fund's behalf and at the direction of each such Fund. The amount of compensation payable by the Distributor to S2K hereunder shall be determined on a class by class basis. At the direction of each Fund, ALPS or its designated agent will facilitate the payment of the applicable dealer reallowance fee to S2K in the amounts set forth in Exhibit B hereto. S2K shall perform such distribution-related activities for which such payments are appropriate under all applicable rules and regulations and shall make such occasional certification as required by the Distributor to such effect. (c) No compensation with respect to a Fund shall be due and owing hereunder until the Distributor actually receives payments from such Fund, to the extent applicable. (d) Notwithstanding anything to the contrary herein, in no event shall S2K be entitled to receive fees or compensation that would cause a Fund's sales charges to exceed the maximum amount allowed under FINRA rules or applicable law. (e) S2K shall reimburse Distributor for all reasonable out-of-pocket expenses, including but not limited to: FINRA advertising/filing fees (including additional fees for expedited reviews as set forth in Section 2(b) herein). 6. Representations. (a) S2K hereby represents and warrants to the Distributor that: (i) It is a limited liability company duly organized and existing and in good standing under the laws of the State of Delaware; (ii) It and all requisite personnel have or shall obtain and each shall use their best efforts to maintain all approvals and licenses necessary for the performance of the Services including proper registration and licensing with the SEC and or FINRA, as applicable; (iii) It is and will use its best efforts to remain duly licensed or registered with the SEC, applicable state securities regulators and FINRA, as applicable; (iv) It is empowered under applicable laws and by its limited liability company agreement to enter into and perform this Agreement;

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Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018





(v) No consent, approval, authorization or other order of governmental authority is required in connection with the execution or delivery by S2K of this Agreement; (vi) There are no actions, suits or proceedings pending, or to the knowledge of S2K, threatened against S2K at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which would be reasonably expected to have a material adverse effect on the business or property of S2K; (vii) The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by S2K will not conflict with or constitute a default under any charter, bylaw, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over a Fund, except for such conflicts or defaults that would not reasonably be expected to have a material adverse effect on the business or property of S2K; (viii) It will make no representations concerning a Fund other than those contained in the applicable Prospectus or in any promotional materials or sales literature furnished to S2K by the Distributor or prepared by S2K and approved for use by the Distributor, except as otherwise noted in this Agreement; (ix) While it is authorized by the Distributor to solicit purchases of Fund shares, it is understood that it will not open or maintain customer accounts or handle orders for a Fund; (x) All requisite corporate actions have been taken to authorize it to enter into and perform this Agreement; (xi) It and Authorized S2K Representatives are and will use best efforts to remain properly registered with and licensed by the SEC and are and will use best efforts to remain members in good standing of FINRA or any relevant subsidiary thereof, as applicable; (xii) The Authorized S2K Representatives will be registered representatives of S2K and subject to S2K's supervisory oversight in accordance with all applicable laws, rules and regulations in connection with the services provided hereunder; and (xiii) S2K understands and agrees that this Agreement does not relieve S2K of any obligation to which S2K may be subject under any applicable federal or state law. (b) The Distributor represents and warrants to S2K that: (i) It is a corporation duly organized and existing and in good standing under the laws of the State of Colorado;

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Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018





(ii) It is a member of FINRA and it and its employees and representatives have all required licenses and registrations required by the SEC, FINRA or any other governing body to act under this Agreement; (iii) It is empowered under applicable laws and by its Articles of Incorporation and By-laws to enter into and perform this Agreement; (iv) All requisite corporate proceedings have been taken to authorize it to enter into and perform this Agreement; (v) No consent, approval, authorization or other order of governmental authority is required in connection with the execution or delivery by the Distributor of this Agreement; (vi) There are no actions, suits or proceedings pending or to the knowledge of the Distributor, threatened against the Distributor at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which would be reasonably expected to have a material adverse effect on the business or property of the Distributor; (vii) The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Distributor will not conflict with or constitute a default under any charter, bylaw, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over a Fund, except for such conflicts or defaults that would not reasonably be expected to have a material adverse effect on the business or property of the Distributor; (viii) It has and will continue to have access to the necessary facilities, equipment and personnel to perform its duties and obligations under this Agreement in accordance with industry standards; (ix) Each Fund has filed a registration statement (a Registration Statement) with the SEC relating to its shares under the Securities Act of 1933, as amended (the 1933 Act), on Form N-2 which includes a Prospectus. The Registration Statement (including the Prospectus) conforms in all material respects to the requirements of the 1933 Act, the 1940 Act and the rules thereunder; and (x) To the extent required by applicable law, the Funds are registered and their shares are qualified for sale in the jurisdictions listed on Exhibit C unless S2K is notified in writing to the contrary. S2K may rely solely on such representation to the extent that S2K will only market a Fund in those jurisdictions where such Fund is registered. The Distributor otherwise assumes no responsibility or obligation as to S2K's right to market a Fund in any jurisdiction.

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Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018





7. Indemnification. (a) S2K shall indemnify and hold harmless the Distributor and each of its affiliates, officers, directors, employees, agents and control persons (as defined in Section 15 of the 1933 Act or Section 20 of the Securities Exchange Act of 1934, as amended (the 1934 Act)), from and against any loss, liability, claim, damage or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damage or expense and reasonable counsel fees incurred in connection therewith), as incurred, arising in connection with (i) S2K's violation of any of the provisions of this Agreement or (ii) S2K's violation of any applicable law, rule or regulation with respect to its conduct under the Agreement; provided, however, that in no case is the foregoing indemnity to be deemed to protect the Distributor or any of its affiliates, officers, directors, employees, agents or control persons (as defined in Section 15 of the 1933 Act or Section 20 of the 1934 Act) against any liability to which the Distributor or any such person would otherwise be subject by reason of its willful misfeasance, bad faith or gross negligence or by reason of the Distributor's reckless disregard of its obligations and duties under this Agreement. (b) The Distributor shall indemnify and hold harmless S2K and each of its affiliates, directors, officers, employees, agents and control persons (as defined in Section 15 of the 1933 Act or Section 20 of the 1934 Act), from and against any loss, liability, claim, damage or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damage or expense and reasonable counsel fees incurred in connection therewith), as incurred, arising in connection with (i) the Distributor's violation of any of the provisions of this Agreement, (ii) the Distributor's violation of any applicable law, rule or regulation with respect to its conduct under the Agreement, or (iii) any untrue statement of a material fact or any omission of a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading in any advertising or promotional material published or provided by the Distributor to S2K; provided, however, that in no case is the foregoing indemnity to be deemed to protect S2K and its affiliates, directors, officers, employees, agents and control persons (as defined in Section 15 of the 1933 Act or Section 20 of the 1934 Act), against any liability to which S2K or any such person would otherwise be subject by reason of its willful misfeasance, bad faith or gross negligence or by reason of the reckless disregard of S2K's obligations and duties under this Agreement. (c) Any and all claims, losses, cost or expenses shall be limited to actual and direct costs. In no event shall any party be responsible to the other for indirect, special or consequential damages. 8. Confidentiality. (a) Each party to this Agreement shall safeguard and hold confidential from disclosure to unauthorized parties all Confidential Information (as defined below) of the other party or parties. For purposes of this Section 8, the term Confidential Information shall mean any and all information which is in any way connected with, derived from or related to the business of a party, including without limitation, any business and financial records, any retail or institutional customer information, computer programs, technical data, investment information, lists, compilations, compositions, programs, plans, devices, descriptions, drawings, methods, techniques, processes, designs, theories concepts or ideas, and any information relating to the pricing or marketing policies, suppliers or customers of a party.

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Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018





(b) Confidential Information shall not include information to the extent such information is (i) already known to the receiving party free of any restriction at the time obtained, including information in the public domain; (ii) subsequently learned from an independent third party free of restriction; (iii) known through no wrongful act of any party; or (iv) independently developed by one party without reference to information which is confidential. (c) For purposes of this Section 8, only the officers, directors and employees and agents of the parties, including their respective accountants, auditors and attorneys, shall be authorized parties, provided those individuals have a need to know the Confidential Information that is consistent with their respective positions and legal obligations and responsibilities. In the event that one party (the Disclosing Party) is requested or required by a court of competent jurisdiction or by any regulatory body which regulates the conduct of the Disclosing Party to disclose any Confidential Information of another party (the Non-Disclosing Party), the Disclosing Party shall provide the Non-Disclosing Party with prompt notice of any such request or requirement so that the Non-Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Non-Disclosing Party, the Disclosing Party is nonetheless, in the opinion of counsel, required to disclose Confidential Information, the Disclosing Party may, without liability hereunder, disclose only that portion of the Confidential Information which such counsel advises the Disclosing Party is required to be disclosed, provided that the Disclosing Party attempt to preserve the confidentiality of the Confidential Information, including, without limitation, by cooperating with the Non-Disclosing Party, at the Non-Disclosing Party's expense, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information. (d) Each party further acknowledges and agrees that, in the event of a breach by it of the provisions of this Section 8, the other party or parties will suffer irreparable harm and damages and, accordingly, shall be entitled to seek injunctive or other equitable relief in a court of competent jurisdiction. (e) The provisions of this Section 8 shall survive any termination of this Agreement. 9. Fund Materials. S2K shall be entitled to produce materials (Fund Materials) for use in marketing a Fund as described herein, so long as the Fund Materials are produced, reviewed, principally approved, used and filed, where necessary, in accordance with FINRA and SEC regulations and those of any jurisdiction in which a Fund is solicited through use of the Fund Materials. All expenses and costs attributable to the foregoing provision shall be borne by S2K in accordance with Section 2 and Section 5 herein. S2K shall remain liable for any representations made by it or contained in materials produced and approved by S2K for use in marketing the Funds. 10. Relationship of the Parties. In carrying out the provisions of this Agreement, S2K is, for all purposes, an independent contractor and none of S2K's offices, directors, employees or representatives is an employee of the Distributor. As an independent contractor, S2K has no authority, express or implied, to speak for, act for or bind the Distributor in any manner whatsoever.

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Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018





11. Regulatory Issues. (a) It is understood and agreed that in performing S2K's duties under this Agreement, S2K hereby undertakes to, and will use commercially reasonable efforts to cause each of its representatives, officers, directors or employees who perform services under this Agreement to act in a manner consistent with written instructions received from the Distributor. (b) Each party hereto agrees that any Nonpublic Personal Information, as the term is defined in Regulation S-P (17 CFR 248.1 - 248.30) (Reg S-P), may be disclosed by a party hereunder only for the specific purpose of permitting the other party or parties to perform services set forth in this Agreement. Each party agrees that with respect to such information, it will comply with Reg S-P and any other applicable Federal or state regulations and that it will not disclose any Nonpublic Personal Information received in connection with this Agreement to any party except to the extent required to carry out the services set forth in this Agreement or as required by applicable law. 12. Use of Names; Marketing Materials. Each party to this Agreement shall obtain the other party's prior written consent before using any marketing or sales literature related to the consenting party, and shall not use the other party's names in any marketing or advertising materials without prior written consent from the consenting party. 13. Miscellaneous Provisions. (a) Notices. All notices and other communications hereunder shall be in writing, shall be deemed to have been given when received or when sent by telex or facsimile, and shall be given to the following addresses (or such other addresses as to which notice is given): To Distributor: ALPS Distributors, Inc. 1290 Broadway, Suite 1100 Denver, Colorado 80203 Attn: Jeremy O. May, President Fax: (303) 623-7850 To S2K: 777 Third Avenue 28t h Floor New York, New York 10017 Attn: Steven Kantor

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Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018





(b) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the transaction contemplated herein and supersedes all prior agreements or understandings between the parties hereto relating to the subject matter hereof. No oral representation, agreement or understanding made by any party hereto shall be valid or binding upon such party or any other party hereto. (c) Amendments. Except as otherwise provided herein, no provision of this Agreement may be amended other than by a writing signed by the Distributor and S2K. (d) Severability; Assignment. Each provision of this Agreement is intended to be severable. If any provision of this Agreement shall be held illegal or made invalid by court decision, statute, rule or otherwise, such illegality or invalidity shall not affect the validity or enforceability of the remainder of this Agreement. No party to this Agreement has the right to assign any of its rights or obligations hereunder, except as already set forth under this Agreement. (e) Headings. The headings in this Agreement are inserted for convenience and identification only and are in no way intended to describe, interpret, define or limit the size, extent or intent of this Agreement or any provision hereof. (f) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same agreement. (g) Application of Law; Consent to Jurisdiction. This Agreement and the application and interpretation hereof shall be governed exclusively by the laws of the State of Colorado. The parties to this Agreement agree that any appropriate state or any Federal Court located in Denver, Colorado shall have exclusive jurisdiction of any case or controversy arising under or in connection with this Agreement and shall be a proper forum in which to adjudicate such case of controversy. The parties hereto consent to the jurisdiction of such courts. (Signature page follows)

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Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018





IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. Distributor ALPS DISTRIBUTORS, INC. By: Name: Steven B. Price Its: Senior Vice President and Director of Distribution Services S2K FINANCIAL LLC By: Name: Steven Kantor Its: Chief Executive Officer [Signature Page to Wholesale Marketing Agreement]

Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018





Exhibit A NorthStar Real Estate Capital Income Fund NorthStar Real Estate Capital Income Fund-T NorthStar Real Estate Capital Income Fund-ADV NorthStar Real Estate Capital Income Fund-C

Exhibit A

Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018





Exhibit B Fee Schedule At the direction of each Fund set forth in Exhibit A to this Agreement, ALPS or its designated agent will facilitate the payment of the applicable dealer reallowance fee to S2K (as a percentage of the offering price) in the amounts set forth in each such Fund's then-current Prospectus. Note: The following applies to all Funds set forth in Exhibit A to this Agreement with the exception of the NorthStar/Townsend Institutional Real Estate Fund Inc.: In no event will a Fund's aggregate selling commissions, dealer manager fees and distribution and servicing fees, if applicable, exceed 8.0% of the aggregate gross proceeds raised in the Fund's offering. Therefore, the Distributor's facilitation of the dealer reallowance payments set forth in each Fund's then-current Prospectus shall cease with respect to the applicable Fund as of the date such 8.0% threshold has been reached with respect to such Fund.

Exhibit B

Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018





Exhibit C Jurisdictions [List of jurisdictions where the Funds are registered for sale]

Exhibit C

Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018 
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.
Example Output: In no event shall any party be responsible to the other for indirect, special or consequential damages.

Example Input: 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.

Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





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

Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





(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

Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





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.

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





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.

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





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.

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





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

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





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.

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





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.

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





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.

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





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.

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





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).

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





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

Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





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

Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





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

Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





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

Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





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

Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





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

Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





Exhibit A

19

Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





Exhibit B

20

Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





Exhibit C

21

Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





Exhibit D

22

Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





Exhibit E

23

Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019 
Question: Highlight the parts (if any) of this contract related to Covenant Not To Sue that should be reviewed by a lawyer. Details: Is a party restricted from contesting the validity of the counterparty’s ownership of intellectual property or otherwise bringing a claim against the counterparty for matters unrelated to the contract?
Example Output: 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.

Example Input: SCHEDULE B

Customization Schedule

This Customization Schedule is attached to the Software License, Customization and Maintenance Agreement (the Agreement) executed by and between Bank of America, N.A. (Bank of America) and <<enter Company Name>> (Supplier). The Customizations identified hereunder shall be subject to the terms and conditions of that Software License, Customization and Maintenance Agreement referenced above.

Bank of America wishes to obtain the Customizations herein defined, and Supplier wishes to delivery those Customizations, on the terms and conditions of the Agreement and this Customization Schedule.

1. The Customizations shall fulfill or exceed all of the functional, performance and other specifications described in the Program Materials and the documents prepared either by Bank of America or Supplier pursuant to this Agreement. as indicated below.

No later than <<enter Customization Documents Delivery Date>>, Supplier shall deliver to Bank of America the documents described below for this Customization. The detailed specifications so delivered shall be incorporated herein when approved by Bank of America.

System Solution

Functional Specifications

System Design Specifications

 Test Specifications





Supplier acknowledges receipt of the following documents from Bank of America:

 Detailed Requirements





2.  Bank of America Customizations:





3.  Supplier Customizations:



      Proprietary to Bank of America  B-1  vTIP2010

Source: CARDLYTICS, INC., S-1, 1/12/2018





4. Fees for Customizations:

[SPECIFY TIME AND MATERIALS RATES ([Indicate any not to exceed limit on T&M Customization costs) OR FIXED PRICE]

If the proposed price Is Increased by Supplier upon delivery to Bank of America of detailed specifications or at any other time hereafter, Bank of America may terminate this Schedule and shall receive a refund of all amounts previously paid hereunder.

5. Unless otherwise specified herein, the environment for this Customization Is the same as described on Product License Schedule A to this Agreement.

6 The Delivery and Installation Schedule for this Customization is:

Delivery Date:

Installation Date:

[Insert any other Schedule Information pertaining to the Delivery or Installation of the Product]

7. [Add any special items. e.g., special payment Schedule, for this Schedule.]

8. Project Personnel:

 Bank of America Project Administrator:   Supplier Project Administrator:



 Bank of America Project Manager:   Supplier Project Manager:



  THE FOREGOING IS UNDERSTOOD AND AGREED TO BY:

<<enter Company Name>> (Supplier)   Bank of America, N.A. (Bank of America) By:    By:

Name:    Name:   Title:    Title:   Date:    Date:      Proprietary to Bank of America  B-2  vTIP2010

Source: CARDLYTICS, INC., S-1, 1/12/2018 
Question: Highlight the parts (if any) of this contract related to Parties that should be reviewed by a lawyer. Details: The two or more parties who signed the contract
Example Output:
Supplier