instruction:
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 the index where the answer starts. If multiple answers seem to exist, write the index of the answer that is the most plausible. If multiple indices must be used to answer the question, the output should be a common separated list of indices.
question:
Exhibit 10.1 COLOGUARD® PROMOTION AGREEMENT BY AND BETWEEN EXACT SCIENCES CORPORATION AND PFIZER INC. August 21, 2018

Source: EXACT SCIENCES CORP, 8-K, 8/22/2018





TABLE OF CONTENTS Page 1. DEFINITIONS 1 2. GOVERNANCE 10 2.1 Joint Steering Committee 10 2.2 Joint Operations Committee 13 2.3 Joint Review Committee 14 2.4 Finance Representative 15 2.5 Alliance Managers 15 2.6 Compliance Managers 16 3. APPOINTMENT; PRODUCT OWNERSHIP; MARKETING AND SALES 17 3.1 Appointment 17 3.2 Responsibility for Product 19 3.3 Annual Marketing Plan 26 3.4 Sales Promotion, Detailing Efforts and IDN Promotion 27 3.5 Pfizer Investment and Support 28 3.6 Exact Investment and Support 29 3.7 Changes in Shared M&P Expenses 30 4. ACCOUNTING 30 4.1 Responsibility for Shared M&P Expenses 30 4.2 Promotion Fee 31 4.3 Fee Statements and Payments 33 4.4 Taxes and Withholding 34 4.5 No Partnership Provision 35 4.6 Payments; Currency 35 4.7 Maintenance of Records; Audits 35 5. REPRESENTATIONS, WARRANTIES AND COVENANTS 37 5.1 Mutual Representations and Warranties 37 5.2 Representations and Warranties of Exact 38 5.3 Covenants 39 5.4 Compliance with Law and Ethical Business Practices 40 5.5 Notice of Investigations 43 5.6 Representation by Legal Counsel 43 5.7 No Inconsistent Agreements 43 5.8 Disclaimer 44 6. INDEMNIFICATION; LIMITATION OF LIABILITY AND INSURANCE 44 6.1 Indemnification 44 6.2 Insurance Requirements 45 6.3 Limitation of Liability 46

Source: EXACT SCIENCES CORP, 8-K, 8/22/2018





7. CONFIDENTIALITY; PUBLICITY 46 7.1 Confidentiality 46 7.2 Authorized Disclosure and Use 47 7.3 Certain Regulatory Filings 47 7.4 Public Announcements 47 7.5 Use of Names 48 8. TERM AND TERMINATION 48 8.1 Term 48 8.2 Renewal 48 8.3 Termination for Cause 48 8.4 Termination Without Cause 49 8.5 Mutual Termination 49 8.6 Termination for Change of Control 49 8.7 Royalty Upon Expiration 49 8.8 Consequences of Termination 50 8.9 Survival of Certain Obligations 50 9. MISCELLANEOUS 51 9.1 Interpretation 51 9.2 Assignment 51 9.3 Further Actions 51 9.4 Force Majeure 51 9.5 Notices 52 9.6 Amendment 53 9.7 Waiver 53 9.8 Severability 53 9.9 Descriptive Headings 53 9.10 Governing Law 53 9.11 Dispute Resolution 53 9.12 Entire Agreement of the Parties 54 9.13 Independent Contractors 54 9.14 No Legal Advice 54 9.15 Counterparts 54 EXHIBITS Exhibit 1.24 - Cost of Sales Exhibit 1.39 - Exact Trademarks Exhibit 2.2(c)(iv) - Calendar Quarter Performance Metrics Exhibit 3.2(c)(i) - Sales Deployment Plan Exhibit 3.3(b) - Annual Marketing Plan Outline Exhibit 3.4(a) - Promotion Fee Reduction Exhibit 7.4 - Press Release

Source: EXACT SCIENCES CORP, 8-K, 8/22/2018





Exhibit 8.8(b) - Tail Period Advertising Services ii

Source: EXACT SCIENCES CORP, 8-K, 8/22/2018





AGREEMENT This Agreement (the Agreement) is made and entered into as of August 21, 2018 (the Effective Date), by and between Pfizer Inc. (Pfizer), a Delaware corporation, with a principal place of business at 235 East 42nd Street, New York, New York 10017 and Exact Sciences Corporation (Exact), a Delaware corporation with a principal place of business at 441 Charmany Drive, Madison, Wisconsin 53719. Pfizer and Exact may each be referred to herein individually as a Party and collectively as the Parties. WHEREAS, Exact has marketing and proprietary rights to the Product (as defined below) in the United States; WHEREAS, Pfizer has sales, marketing, analytical, and other core capabilities and competencies to promote and market branded prescription products; and WHEREAS, Exact desires to work with Pfizer to leverage Pfizer's expertise in sales, marketing, analytical, and other core capabilities and competencies for the Product in the United States and Pfizer desires to provide such expertise, including through its Sales Representatives, and to invest in Exact's Promotion of the Product in the United States. NOW THEREFORE, in consideration of the mutual promises and covenants set forth below and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows: 1. DEFINITIONS. 1.1 AdvaMed Code shall have the meaning set forth in Section 3.2(c)(ii). 1.2 Advertising shall mean the paid advertising, planning, purchasing and placement of advertising for a prescription medical device subject to pre-market approval in the Territory through any means, including television, print, radio/audio, in-office/placed- based, digital, web, search (SEM/SEO), social media, mobile and any and all new and emerging media channels for consumers, healthcare institutions and healthcare providers. 1.3 Affiliate(s) shall mean, with respect to any Party, any other Person which controls, is controlled by or is under common control with such Party. A Person shall be regarded as in control of another Person if it owns or controls at least fifty percent (50%) of the equity securities of such other Person entitled to vote in the election of directors (or, in the case of an entity that is not a corporation, for the election of the corresponding managing authority); provided, however, that the term Affiliate shall not include subsidiaries or other entities in which a Party or its Affiliates owns a majority of the ordinary voting power necessary to elect a majority of the board of directors or other governing board, but is restricted from electing such majority by contract or otherwise, until such time as such restrictions are no longer in effect. 1.4 Agreement shall have the meaning set forth in the preamble. 1

Source: EXACT SCIENCES CORP, 8-K, 8/22/2018





1.5 Alliance Manager shall have the meaning set forth in Section 2.5. 1.6 Annual Marketing Plan shall mean the plan for the Marketing and Promotion of the Product in the Territory for each full or partial Calendar Year as described in Section 3.3, as prepared and updated from time to time pursuant to Section 3.3. 1.7 Annual Supplemental Promotion Fee shall have the meaning set forth in Section 4.2(c)(i). 1.8 Applicable Compliance/Review Policies shall mean, with respect to Pfizer, its written Code of Ethics and Professional Conduct and, with respect to Exact, its written Code of Business Conduct and Ethics, and such policies and standard operating procedures that are adhered to by such Party in connection with the Product and any payments or services contemplated by this Agreement, as the same may be amended from time to time. 1.9 Applicable Law shall mean any law, statute, rule, regulation, order, judgment, ordinance, administrative code, decree, directive, injunction or permit (including Regulatory Approvals) of any court, arbitral body, agency, department, authority or other instrumentality of any national, state, county, city or other political subdivision applicable to a Party's activities to be performed under this Agreement. For the avoidance of doubt, any specific references to any Applicable Law or any portion thereof, shall be deemed to include all amendments, replacements or successors thereto. 1.10 Audited Party shall have the meaning set forth in Section 4.7(b)(i). 1.11 Auditing Party shall have the meaning set forth in Section 4.7(b)(i). 1.12 Baseline Laboratory Service Revenue shall mean, with respect to a particular Calendar Year during the Term, the amounts set forth in Section 4.2(b). 1.13 Baseline M&P Expense shall have the meaning set forth in Section 3.6. 1.14 Business Day shall mean any day other than a Saturday, Sunday, or a bank or other public holiday in New York, New York, United States. 1.15 Calendar Quarter shall mean the respective periods of three (3) consecutive calendar months ending on March 31, June 30, September 30 or December 31. 1.16 Calendar Year shall mean the respective periods of twelve (12) calendar months, each such period ending on December 31 of the applicable year for as long as this Agreement is in effect. 1.17 Calendar Year Baseline Laboratory Service Revenue shall have the meaning set forth in Section 4.2(b). 1.18 Change of Control shall mean, with respect to a Party: (a) the sale of all or substantially all of such Party's assets or business relating to the subject matter of this Agreement; (b) a merger, reorganization, or consolidation involving such Party in which the holders of voting securities of such Party outstanding immediately 2

Source: EXACT SCIENCES CORP, 8-K, 8/22/2018





prior thereto cease to hold at least fifty percent (50%) of the combined voting power of the surviving entity or acquiring entity (or its parent) immediately after such merger, reorganization, or consolidation; or (c) the acquisition of more than fifty percent (50%) of the voting equity securities of such Party as a result of a single transaction or a series of related transactions. 1.19 CIA shall have the meaning set forth in Section 5.4(j). 1.20 Claims shall have the meaning set forth in Section 6.1(a). 1.21 Compliance Manager shall have the meaning set forth in Section 2.6. 1.22 Confidential Information shall have the meaning set forth in Section 7.1. 1.23 Co-Promote Field shall mean those physicians and practices customarily considered primary care or gastroenterology providers and practices and, subject to Sections 3.1(c)(ii) and 4.2(d), the OB/Gyn Field, in the Territory. For clarity, if Exact, either through its own Sales Representative or by agreement with a Third Party, launches the Product in the OB/Gyn Field, the Co-Promote Field shall not include the OB/Gyn Field. 1.24 Cost of Sales shall mean the direct and indirect costs attributable to sales of the Product Laboratory Services, as calculated in accordance with Exhibit 1.24, and as consistently determined in accordance with GAAP. 1.25 Debarred/Excluded shall have the meaning set forth in Section 5.1(g). 1.26 Detail shall mean a customary face-to-face or non-face-to-face contact of a Sales Representative of a Party with an Eligible Prescriber during which such Sales Representative makes a presentation of certain of the Product's attributes, such as describing the FDA-approved indicated uses, safety, effectiveness, or other relevant characteristics of the Product, in a fair and balanced manner and in accordance with the requirements of this Agreement and Applicable Law and in a manner that is customary for the purpose of Promoting a prescription medical device subject to pre-market approval, but excluding: (a) any activities performed by any Representative other than a Sales Representative who is not conducting a face-to-face or non-face- to-face sales call, (b) presentations made at conventions or (c) mere delivery of savings cards, coupons or similar items without discussions with an Eligible Prescriber about the Product; provided that, such measurement shall be on the same basis as the recording Party's measurement for its Sales Representatives' detailing of its other medical devices subject to pre-market approval or prescription pharmaceutical products (as applicable), consistently applied throughout the Term. For clarity, non- face-to-face contact shall mean e-detailing, video detailing or other presentation of Promotional Material by a Sales Representative to an Eligible Prescriber via audio, video, internet, using webex or other similar live conference applications, and in all instances that allows for real time, detailed and substantive communication between the Sales Representative and the Eligible Prescriber regarding the Product and would be considered a Detail by Pfizer for its own products under its own guidelines, but shall exclude any such communications, such as telephone calls, during which such detailed and visual 3

Source: EXACT SCIENCES CORP, 8-K, 8/22/2018





exchanges of information do not occur. Detail, when used as a verb, and Detailing shall have correlative meanings. 1.27 Disclosing Party shall have the meaning set forth in Section 7.1. 1.28 Disputed JOC Matter shall have the meaning set forth in Section 2.2(d). 1.29 Disputed JRC Matter shall have the meaning set forth in Section 2.3(d). 1.30 Disputed JSC Matter shall have the meaning set forth in Section 2.1(e). 1.31 Effective Date shall have the meaning set forth in the preamble. 1.32 Eligible Prescriber shall mean (a) a health care provider who has the authority to prescribe the Product under Applicable Law and (b) any other health care professional without prescribing authority but who (i) is reasonably believed to assist with patient care and reimbursement for healthcare service in the office of a health care provider who has authority to prescribe the Product under Applicable Law, and (ii) is allowed to receive Promotion. 1.33 Exact shall have the meaning set forth in the preamble. 1.34 Exact Copyrights shall mean all statutory and common law copyrights owned by Exact in and to the Promotional Materials, Advertising materials or Product Label used in the Territory. 1.35 Exact House Marks shall mean the Exact trade name and logo, including all registrations and applications for registration of any of the foregoing in the Territory. 1.36 Exact Indemnitee shall have the meaning set forth in Section 6.1(b). 1.37 Exact JSC Members shall have the meaning set forth in Section 2.1(a). 1.38 Exact Patent Rights shall mean the Patent Rights owned or controlled by Exact as of the Effective Date. 1.39 Exact Sponsorships and Related Activities shall have the meaning set forth in Section 3.2(d)(i). 1.40 Exact Trademarks shall mean (a) the Trademarks listed on Exhibit 1.39 and the registrations thereof, (b) any pending or future trademark registration applications owned or controlled and used in connection with or intended for use in connection with the Product in the Territory, (c) any unregistered trademark rights used in connection with the Product as may exist through use in the Territory, (d) any current or future modifications or variants of any of the foregoing rights, and (e) any future Trademarks adopted by Exact or its Affiliates for use in connection with the Product in the Territory. 1.41 Excluded Channel shall have the meaning set forth in Section 4.2(d). 1.42 Ex-US Commercial Rights shall have the meaning set forth in Section 3.1(c)(i). 4

Source: EXACT SCIENCES CORP, 8-K, 8/22/2018





1.43 Ex-US Commercial Rights Transfer Notice shall have the meaning set forth in Section 3.1(c)(i). 1.44 FDA shall mean the United States Food and Drug Administration or any successor agency thereto. 1.45 FD&C Act shall mean the United States Federal Food, Drug, and Cosmetic Act, as amended, and the rules and regulations promulgated thereunder. 1.46 Finance Representative shall have the meaning set forth in Section 2.4. 1.47 First Promotion Fee Period shall have the meaning set forth in Section 4.2(c)(i). 1.48 First Supplemental Promotion Fee shall have the meaning set forth in Section 4.2(c)(i). 1.49 GAAP shall mean United States generally accepted accounting principles, consistently applied. 1.50 Governmental Authority to be broadly interpreted and includes: (a) any national, federal, state, local, regional, or foreign government, or level, branch, or subdivision thereof; (b) any multinational or public international organization or authority; (c) any ministry, department, bureau, division, authority, agency, commission, or body entitled to exercise any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power; (d) any court, tribunal, or governmental arbitrator or arbitral body; (e) any government-owned or controlled institution or entity; (f) any enterprise or instrumentality performing a governmental function; and (g) any political party. 1.51 Government Official to be broadly interpreted, shall mean (a) any elected or appointed government official (e.g., a member of a ministry of health); (b) any employee or person acting for or on behalf of a government, government-controlled entity or enterprise performing a governmental function; (c) any political party, candidate for public office, officer, employee, or person acting for or on behalf of a political party or candidate for public office; (d) any employee or person acting for or on behalf of a public international organization (e.g., the United Nations); or (e) any individual who holds himself or herself out to be the authorized intermediary of any of the foregoing. For clarity, healthcare providers employed by government-owned hospitals shall be considered Government Officials. 1.52 Gross Margin shall mean Laboratory Services Revenue less Cost of Sales. 1.53 Gross Margin Percent shall mean the percentage as determined by multiplying (a) the fractional value of Gross Margin divided by Laboratory Service Revenue by (b) one hundred percent (100%). 1.54 IDN shall mean an integrated healthcare delivery network. 1.55 Incentive Compensation shall mean the compensation paid by or under the 5

Source: EXACT SCIENCES CORP, 8-K, 8/22/2018





authority of Pfizer or any of its Affiliates to a Sales Representative involved in the Promotion of the Product under this Agreement based directly or indirectly on the sales of the products (including the Product) being Promoted by such Sales Representative in the Territory, including any target bonus, award or other incentive, but excluding (i) base salary and (ii) single product ad hoc awards or other similar individual product incentives, such as special incentive plans that, in the aggregate, do not exceed $2,000 per Calendar Year. 1.56 Included Revenue Percentage shall have the meaning set forth in Section 4.2(d). 1.57 Incremental Laboratory Service Revenue shall have the meaning set forth in Section 4.2(a). 1.58 Indemnified Party shall have the meaning set forth in Section 6.1(c)(i). 1.59 Indemnifying Party shall have the meaning set forth in Section 6.1(c)(i). 1.60 JOC shall have the meaning set forth in Section 2.2(a) 1.61 JOC Co-Chair shall have the meaning set forth in Section 2.2(a). 1.62 JRC shall have the meaning set forth in Section 2.3(a). 1.63 JSC shall have the meaning set forth in Section 2.1(a). 1.64 JSC Co-Chair shall have the meaning set forth in Section 2.1(b). 1.65 JSC Members shall have the meaning set forth in Section 2.1(a). 1.66 KAM Team shall have the meaning set forth in Section 3.4(c). 1.67 Laboratory Service Revenue shall mean, with respect to a particular Calendar Quarter, as applicable, Exact's revenue earned from performing the Product Laboratory Service in the Territory with regard to patient samples collected in the Territory, subject to Section 4.2(d), as calculated by Exact in accordance with GAAP consistently applied, less the following deductions: (i) trade, quantity or cash discounts, credits, adjustments or allowances, including without limitation those granted in connection with managed care network agreements and those granted on account of price adjustments, billing errors, rejected goods, damaged goods or incomplete tests or other services; (ii) rebates and chargebacks allowed, given or accrued (including, but not limited to, cash, governmental and managed care rebates, hospital or other buying group chargebacks, and governmental taxes in the nature of a rebate based on usage levels or sales of the Product Laboratory Service); and (iii) patient compliance incentives that are treated as a reduction in revenue in accordance with GAAP, including without limitation gift cards to patients. 1.68 Launch Date shall mean October 1, 2018. 1.69 Marketing shall mean, with respect to a medical device subject to pre-market 6

Source: EXACT SCIENCES CORP, 8-K, 8/22/2018





approval, Advertising, public relations, medical education activities, market research, creation, development, and distribution of Advertising and Promotional materials, field literature, direct or indirect educational campaigns, and exhibits at seminars and conventions. When used as a verb, Market means to engage in Marketing. 1.70 OB/Gyn Commercial Rights shall have the meaning set forth in Section 3.1(c)(ii). 1.71 OB/Gyn Commercial Rights Transfer Notice shall have the meaning set forth in Section 3.1(c)(ii). 1.72 OB/Gyn Field shall mean those healthcare professionals and practices customarily considered OB/Gyn providers and practices. 1.73 Occurrence shall have the meaning set forth in Section 2.6(c). 1.74 Party or Parties shall have the meaning set forth in the preamble. 1.75 Patent Rights shall mean any and all (a) issued patents, (b) pending patent applications, including all provisional applications, substitutions, continuations, continuations-in-part, divisionals, and renewals, and all patents granted thereon, (c) patents of addition, reissues, reexaminations and extensions or restorations by existing or future extension or restorations mechanisms, including patent term adjustments, patent term extensions, supplementary protection certificates or the equivalent thereof, (d) inventor's certificates, (e) other forms of government issued rights substantially similar to the foregoing and (f) United States and foreign counterparts of any of the foregoing. 1.76 Payer shall mean a Third Party entity that pays a portion or all of the cost of the Product Laboratory Service performed with respect to a given patient using the Product. For clarity, a patient who pays for the cost of his or her own Product Laboratory Service, in whole or in part, shall not be included in this definition of Payer and a Payer may include government entities or agencies, managed care organizations, and health or prescription insurance providers. 1.77 Person shall mean an individual, sole proprietorship, partnership, limited partnership, limited liability partnership, corporation, limited liability company, business trust, joint stock company, trust, incorporated association, joint venture or similar entity or organization, including a government or political subdivision or department or agency of a government. 1.78 Pfizer shall have the meaning set forth in the preamble. 1.79 Pfizer Indemnitee shall have the meaning set forth in Section 6.1(a). 1.80 Pfizer JSC Members shall have the meaning set forth in Section 2.1(a). 1.81 Pfizer Trainers shall have the meaning set forth in Section 3.2(e)(i). 1.82 PhRMA Code shall have the meaning set forth in Section 3.2(c)(ii). 7

Source: EXACT SCIENCES CORP, 8-K, 8/22/2018





1.83 Pre-Launch Meeting shall have the meaning set forth in Section 3.2(e)(v). 1.84 Product shall mean the medical device subject to pre-market approval currently commercialized under the brand name COLOGUARD and indicated for the qualitative detection of colorectal neoplasia associated DNA markers and for the presence of occult hemoglobin in human stool. 1.85 Product Label shall mean the labels and labeling documents approved on August 11, 2014 by the FDA under the Premarket Approval P130017, , and any supplements, extensions or changes thereto. 1.86 Product Laboratory Service shall mean the colorectal cancer screening test performed on a specimen provided by a patient using the Product, including specimen collection, laboratory testing, data handling and analysis, interpretation of results, patient compliance (including call center activity) and billing to be provided by Exact or its Affiliates according to the Laboratory Instruction for Use in the Product Label, wherein the Laboratory Instructions for Use are further subject to any changes as required by any pre-market approval supplements approved by the FDA. 1.87 Product Training shall mean, with respect to the Product, the Product-specific training program conducted in accordance with the applicable Annual Marketing Plan and Applicable Laws, which may include training concerning (a) the scientific basis for the Product, (b) permissible communications regarding safety and efficacy claims relating to the Product, (c) permissible communications related to the Product in accordance with the Product Label, (d) use of Promotional Materials by the Sales Representatives, and (e) other appropriate topics relevant to the Promotion of the Product as determined by Exact in consultation with Pfizer. 1.88 Promotion shall mean (a) those activities customarily undertaken by a Party's field sales representatives in the Territory to encourage the approved use of a particular prescription medical device (or prescription pharmaceutical medicine as applicable) subject to pre-market approval (or other regulatory approval, as applicable), including detailing, and (b) any other activities customarily undertaken by a Party aimed at encouraging the approved use of a particular prescription medical device subject to pre-market authorization approval, including without limitation, healthcare professional peer-to-peer communication, communications of product benefits to IDNs, the creation and use of promotional materials, Marketing, meetings and events (including without limitation speaker bureau events), trade shows, advocacy activities, including with respect to guideline organizations, and sponsorships. The terms Promote, Promoting and Promotional shall have corresponding meanings. 1.89 Promotion Fee shall have the meaning set forth in Section 4.2(a). 1.90 Promotional Materials shall mean, with respect to the Product, all written, printed, graphic, electronic, audio, video or other materials (such as a journal reprint) other than the Product Label, provided by Exact, with respect to currently 8

Source: EXACT SCIENCES CORP, 8-K, 8/22/2018





developed materials, or developed by the Parties, in each case, for use by a Party's Sales Representatives during Details or other Representatives in the Territory. 1.91 QSR shall mean the Quality System Regulation, 21 C.F.R. Part 820, as may be amended from time to time and any successor thereto. 1.92 Receiving Party shall have the meaning set forth in Section 7.1. 1.93 Regulatory Approval shall mean, with respect to a prescription medical device subject to pre-market authorization approval in any jurisdiction in the Territory for a given indication, all technical, medical and scientific licenses, registrations, authorizations and approvals of pre-market approval application, supplements and amendments, and pre- and post- approvals of the FDA, sufficient for the manufacture, distribution, use and sale of such prescription medical device, including any services associated with such medical device, in such jurisdiction in the Territory for such indication in accordance with Applicable Law, excluding any pricing and reimbursement approvals. 1.94 Renewal Term shall have the meaning set forth in Section 8.2. 1.95 Representatives shall mean, with respect to a Party, such Party's employees, agents or independent contractors, and such Party's Affiliates and their respective employees, agents or independent contractors, including Sales Representatives, in each case who are performing services under the Annual Marketing Plan. 1.96 Sales Deployment Plan shall have the meaning set forth in Section 3.2(c)(i). 1.97 Sales Representative shall mean an internal or field sales representative employed by a Party full-time who details products or services for human use in the Territory. For clarity, Sales Representative excludes sales managers such as district business managers and above. 1.98 Senior Officers shall mean, with respect to Exact, the Chief Executive Officer of Exact and, with respect to Pfizer, Regional President, North America, Internal Medicine, Pfizer Innovative Health. 1.99 Shared M&P Expense shall mean the incremental investment in Promotion expense above the Baseline M&P Expenses agreed to by the Parties, as set forth in Sections 3.5 and 3.6. 1.100 Tail Period shall have the meaning set forth in Section 8.7. 1.101 Term shall have the meaning set forth in Section 8.1. 1.102 Territory shall mean the fifty (50) states of the United States and the District of Columbia and includes Puerto Rico. 1.103 Third Party shall mean any Person other than Exact, Pfizer or their respective Affiliates. 1.104 Trademark shall mean any registered word, name, symbol, color, designation or 9

Source: EXACT SCIENCES CORP, 8-K, 8/22/2018





device or any combination thereof, including any trademark, trade dress, brand mark, service mark, trade name, brand name, logo or business symbol. 1.105 Training Materials shall mean, with respect to the Product, the materials (which may include written or other recorded, videotaped or web-based training materials or online training programs) to be used in Product Training for a Party's Sales Representatives regarding the Product. 1.106 VAT shall have the meaning set forth in Section 4.4. 1.107 Violating Party shall have the meaning set forth in Section 8.3(d). 2. GOVERNANCE. 2.1 Joint Steering Committee. (a) Composition. Promptly following the Effective Date, the Parties will establish a Joint Steering Committee (JSC), comprised of three (3) Representatives of Exact and three (3) Representatives of Pfizer. The JSC Representatives for each of Exact and Pfizer will be referred to herein as the Exact JSC Members and the Pfizer JSC Members, respectively, and the Exact JSC Members and the Pfizer JSC Members will be referred to herein as the JSC Members. Each Party may replace any of its JSC Members at any time upon notice to the other Party and the Parties may increase or decrease the number of its JSC Members on the JSC; provided that at all times an equal number of JSC Members from each Party are appointed to the JSC. (b) Committee Chair. The JSC will be co-chaired by a Pfizer JSC Member and an Exact JSC Member (each, a JSC Co-Chair). Each Party may replace its JSC Co-Chair at any time upon notice to the other Party. The role of secretary of the JSC shall rotate each meeting between the JSC Co-Chairs (or any JSC Member who is appointed, by mutual agreement of both JSC Co-Chairs, as secretary of the JSC). The secretary of the JSC shall: (i) notify each Party at least fifteen (15) days (or as much notice as is reasonably possible) in advance of each JSC meeting; (ii) collect and organize agenda items from each Party for each JSC meeting; (iii) prepare and circulate to JSC Members each JSC meeting agenda no later than five (5) Business Days (or as far in advance as is reasonably possible) prior to the scheduled date for each JSC meeting; and (iv) prepare the written minutes of each JSC meeting and, within fifteen (15) days after such meeting, circulate such minutes for review and approval by the Parties. 10

Source: EXACT SCIENCES CORP, 8-K, 8/22/2018





(c) Meetings. The JSC will meet no less than once each Calendar Quarter (or less frequently upon mutual agreement of the Parties) either in-person or by audio or video teleconference. Meetings of the JSC will occur at such times and places in the Territory as mutually agreed to by the Parties; provided, however, that no more than half of the meetings will be required to be held in-person in any Calendar Year. Meetings of the JSC will only occur if at least one JSC Member of each Party is present at the meeting or participating by teleconference or videoconference. Each Party will be solely responsible for, and will not be entitled to any reimbursement from the other Party with respect to, any and all personnel costs or expenses (including travel expenses) incurred by or on behalf of its Representatives in connection with participation in any JSC meetings or sub-committee or working group meetings, or any other travel required to be undertaken by either Party's personnel in connection with the performance of the Agreement. The Parties will endeavor to schedule meetings of the JSC at least fifteen (15) days in advance. The Parties shall approve the minutes of each meeting promptly, but in no event later than the next meeting of the JSC. (d) JSC Responsibilities. The JSC shall: (i) review, discuss, and approve each Annual Marketing Plan for a Calendar Year, including the quarterly baseline budget amounts contained therein, no later than the applicable date set forth in Section 3.3(a); (ii) oversee the implementation of each Annual Marketing Plan; (iii) review, discuss, and approve any modifications to the Annual Marketing Plan submitted by the JOC; (iv) oversee the JOC and JRC and each committee's activities; (v) act as the first level escalation to resolve disputes between the Parties, any resolution of dispute brought before the JSC shall be by the unanimous consent of both JSC Co-Chairs; (vi) form and oversee any sub-committee or working group in furtherance of activities contemplated in the Annual Marketing Plan; (vii) form and oversee any sub-committee or working group as determined by the JSC to be necessary to review and discuss specific matters related to the subject matter of this Agreement, but not enumerated as a specific responsibility of the JSC, JOC, JRC, or any other properly formed and constituted sub-committee; (viii) review, discuss and approve the allocation of Baseline M&P Expenses and Shared M&P Expenses submitted by the JOC; 11

Source: EXACT SCIENCES CORP, 8-K, 8/22/2018





(ix) review all reports, including sales performance data and other key performance indicators, submitted by the JOC; and (x) escalate any Disputed JSC Matter, as defined in Section 2.1(e), to the Alliance Managers and Senior Officers. (e) Decision Making. Regardless of the number of Pfizer JSC Members or Exact JSC Members, decisions by the JSC will be made by unanimous agreement. The JSC will use good faith efforts to reach agreement on any and all matters properly brought before it. If, despite such good faith efforts, the JSC is unable to reach a decision on a particular matter within the JSC's responsibilities (each such matter, a Disputed JSC Matter), within five (5) Business Days after the JSC first meets to consider such matter, or such later date as may be mutually agreed by the Parties in writing, then either Party may refer such Disputed JSC Matter for resolution to the Alliance Managers. Within three (3) Business Days after such Disputed JSC Matter is referred to the Alliance Managers, the Alliance Managers shall determine whether the Disputed JSC Matter requires the involvement of the Senior Officers. Should the Alliance Managers refer the Disputed JSC Matter to the Senior Officers, then the Senior Officers will promptly initiate good faith discussions to resolve such Disputed JSC Matter. If the Senior Officers are unable to resolve such Disputed JSC Matter within five (5) Business Days of it being referred to them, then, Exact, after having considered, in good faith, the advice and input from Pfizer, will have final decision-making authority with respect to such Disputed JSC Matter where the subject matter of the Disputed JSC Matter substantially relates to (i) Product pricing, including any rebates or discounts; (ii) manufacturing; (iii) research and development, including any trials; and (iv) engagement with Governmental Authorities; provided, however, that Exact will not have final decision making authority to require Pfizer to conduct any activities that Pfizer, in good faith, believes violate Applicable Law or Pfizer's Applicable Compliance/Review Policies. For all Disputed JSC Matters that are not resolved by the Senior Officers and are not subject to Exact's final decision-making authority, neither Party will take any action on such Disputed JSC Matter until resolution can be reached in accordance with this Section 2.1(e), and, except in the case of a potential violation of Applicable Law, pending such resolution the Parties shall continue to carry out activities under this Agreement in accordance with the then-current Annual Marketing Plan. (f) Limits on JSC Authority. Notwithstanding any provision of this Section 2.1 to the contrary, (i) each Party will retain the rights, powers and discretion granted to it under this Agreement consistent with Section 3.2(a), and no such rights, powers, or discretion will be delegated to or vested in the JSC unless such delegation or vesting of rights is expressly provided for in this Agreement or the Parties expressly so agree in writing, (ii) the JSC will not have the power to amend this Agreement or terminate or otherwise modify or waive compliance with this Agreement in any manner and (iii) neither Party will require the other Party to (A) breach any obligation or agreement that 12

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such other Party may have with or to a Third Party or (B) perform any activities that are materially different, greater in scope or more costly than those provided for in the Annual Marketing Plan then in effect. 2.2 Joint Operations Committee. (a) Composition. Promptly following the Effective Date, the Parties will establish a Joint Operations Committee (JOC), comprised of marketing, sales, medical, finance, and such other Representatives of each Party as necessary. The JOC shall be co-chaired by each Party's marketing Representative on the JOC, as designated by the JSC Co-Chair of each Party (each, a JOC Co-Chair). Each JOC Co-Chair shall (i) have knowledge and expertise in the commercialization of prescription products and services in the Territory, (ii) have sufficient seniority within the applicable Party to make decisions arising within the scope of the JOC's responsibilities, and (iii) be authorized under such Party's internal governance procedures to make decisions or carry out the activities given to such Party under this Agreement. (b) Meetings. The JOC shall meet once each month (or more or less frequently upon mutual agreement of the Parties) either in- person or by audio or video teleconference. Meetings of the JOC will occur at such times and places in the Territory as mutually agreed to by the Parties. Each Party will be solely responsible for, and will not be entitled to any reimbursement from the other Party with respect to, any and all personnel costs or expenses (including travel expenses) which are incurred by or on behalf of its Representatives in connection with participation in any JOC meetings or sub-committee or working group meetings, or any other travel required to be undertaken by either Party's personnel in connection with the performance of the Agreement. (c) JOC Responsibilities. The JOC shall: (i) prepare the Annual Marketing Plan for review and approval by JSC; (ii) prepare and review Product Marketing strategies and tactics; (iii) prepare allocation of Baseline M&P Expenses and Shared M&P Expense for JSC review and approval; (iv) prepare reports, including sales performance data and other key performance indicators for JSC review in accordance with Exhibit 2.2(c)(iv); (v) execute and monitor the strategies and tactics in the Annual Marketing Plan; 13

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(vi) monitor Product supply and Product Laboratory Service capacity to ensure they are sufficient to meet the demand forecast in the Annual Marketing Plan; (vii) establish key supply, capacity, inventory, and such other metrics to inform the JSC; (viii) prepare any revision to the Annual Marketing Plan as directed by the JSC or otherwise proposed pursuant to Section 3.3(a); (ix) provide consent to materials for reconsideration by the JSC pursuant to Section 2.3(d); and (x) with respect to the Annual Marketing Plan, ensure that a consultation with the Compliance Managers is completed and appropriate compliance measures are incorporated into the Annual Marketing Plan. (d) Decision Making. Decisions by the JOC will be made by unanimous agreement. If a unanimous decision cannot be reached, then any disputed matter within the JOC's responsibilities (the Disputed JOC Matter) may be escalated by either Party to the JSC for resolution in accordance with Section 2.1(e). Unless and until resolved by the JSC in accordance with Section 2.1(e), neither Party shall take any action with respect to such Disputed JOC Matter and, except in the case of a potential violation of Applicable Law, pending such resolution the Parties shall continue to carry out the activities under this Agreement in accordance with the then-current Annual Marketing Plan. 2.3 Joint Review Committee. (a) Composition. Promptly following the Effective Date (and in any event, within thirty (30) days of the Effective Date), under the supervision of the JSC, the Parties will establish a Joint Review Committee (JRC), comprised of marketing, medical, legal, and regulatory Representatives of the Parties. Each Party may appoint one medical, legal and regulatory Representative member to the JRC. The marketing Representatives from the Parties shall coordinate administration and operation of the JRC meetings, including setting agendas, recording decisions regarding materials reviewed, and coordinating review to ensure timely review and approval of Promotional Materials. The Representatives from the Parties on the JRC shall coordinate operational support including scheduling of JRC meetings, timely distribution of materials for review, recording and archiving of approved materials, and other such activities to ensure operational efficiency of JRC meetings. It is the expectation of the Parties that the JRC will utilize Exact's review and approval system to review and approve materials, including Promotional Materials that are subject to JRC review under Section 2.3(c). 14

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(b) Meetings. The JRC shall meet no less than once each month (or more frequently upon mutual agreement of the members of the JRC) either in-person or by audio or video teleconference. Meetings of the JRC will occur at such times and places in the Territory as mutually agreed to by the Parties. Each Party will be solely responsible for, and will not be entitled to any reimbursement from the other Party with respect to, any and all personnel costs or expenses (including travel expenses) which are incurred by or on behalf of its Representatives in connection with participation in any JRC meetings, or any other travel required to be undertaken by either Party's personnel in connection with the performance of the Agreement. (c) JRC Responsibilities. The JRC shall be responsible for review and approval of all Product or related disease education materials, Promotional Materials and other communication to a Third Party, including pharmaco-economic data, that may be used in Promotion, medical to medical communication, patient education, press release or any other form of external communication intended for healthcare professionals, healthcare organized customers (such as IDNs and hospitals), and Payer organizations, patients or others who are reasonably likely to influence the prescription, use, reimbursement, or purchase of the Product. The JRC shall also ensure that all such materials are in compliance with Applicable Law and each Party's Applicable Compliance/Review Policies. Any conflict between the Parties' Applicable Compliance/Review Policies will be discussed by the JRC and the Compliance Managers to determine an appropriate resolution of such conflict. (d) Decision Making. Decisions by the JRC will be made by unanimous agreement. If a unanimous decision cannot be reached, then the disputed matter (the Disputed JRC Matter) can be escalated by either Party to the JSC for resolution in accordance with Section 2.1(e). Unless and until resolved by the JSC in accordance with Section 2.1(e), neither Party shall take any action with respect to such Disputed JRC Matter and, except in the case of a legal or ethical issue, the Parties shall continue to carry out the activities under this Agreement in accordance with the then-current Annual Marketing Plan. A Disputed JRC Matter that is substantially similar in subject matter of a prior Disputed JRC Matter shall not be resubmitted for JSC review and resolution under this Section 2.3(d). 2.4 Finance Representative. Each Party shall appoint a finance contact to oversee all financial reporting and communications under this Agreement during the Term (each, a Finance Representative). Each Party may change its designated Finance Representative at any time upon written notice to the other Party. Each Finance Representative will coordinate the efforts of its respective Party in conducting finance activities, including all financial reporting and financial communications between the Parties, under this Agreement during the Term. 2.5 Alliance Managers. Each Party shall appoint an employee of such Party who shall oversee interactions between the Parties for all matters related to this Agreement, the 15

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Annual Marketing Plan and any related agreements between the Parties or their Affiliates (each an Alliance Manager). The Alliance Managers shall endeavor to ensure clear and responsive communication between the Parties and the effective exchange of information, and shall serve as a single point of contact for any matters arising under this Agreement. The Alliance Managers shall have the right to attend all JSC and subcommittee meetings as non-voting participants and may bring to the attention of the JSC or subcommittee any matters or issues either of them reasonably believes should be discussed, and shall have such other responsibilities as the Parties may mutually agree in writing. Each Party may designate different Alliance Managers by notice in writing to the other Party. 2.6 Compliance Managers. Within thirty (30) days after the Effective Date, Pfizer and Exact each agrees to appoint a Representative who (a) has received compliance training by such Party and (b) is routinely responsible for advising such Party on compliance matters to act as its Compliance Manager (each, a Compliance Manager). The Compliance Managers shall support the JSC. (a) Responsibilities. Compliance Managers shall resolve discrepancies between the Parties' respective Applicable Compliance/Review Policies, ensure that each Party has a process to monitor the activities under this Agreement for compliance with Applicable Laws and Applicable Compliance/Review Polices, serve as a key point of contact between the Parties for compliance-related matters, and review the Annual Marketing Plan for compliance with Applicable Compliance/Review Policies and shall promptly notify the JSC of any compliance issues in such Annual Marketing Plan. The JOC shall promptly notify the Compliance Managers of any material revisions to the Annual Marketing Plan. Each Compliance Manager shall facilitate the resolution of any compliance issue with the Compliance Manager of the other Party. (b) Notification. Subject to the terms of this Agreement, the Compliance Manager of a Party shall promptly notify the other Party's Compliance Manager in the event that it becomes aware of a potential violation by the other Party of: (i) the other Party's policies or procedures; (ii) any criminal, civil, or administrative laws or regulations applicable to any federal health care program or for which penalties or exclusions may be authorized; or (iii) the requirements under the FD&C Act, or relevant FDA guidance documents related to the Products, payments, or services under this Agreement. (c) Investigations. If a Party finds, following an investigation, credible evidence of a significant violation of any applicable policies and procedures that are designed to ensure compliance with: (i) any criminal, civil, or administrative laws or regulations applicable to any federal health care program or for which penalties or exclusions may be authorized; or (ii) the requirements under the FD&C Act, or relevant FDA guidance documents related to the Products, payments, or services under this Agreement (an Occurrence), the Party's Compliance Manager shall promptly inform the other Party of the Occurrence and steps taken by the Party to remediate the Occurrence, except 16

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to the extent that the disclosing Party's counsel reasonably believes that such disclosure to the other Party could violate Applicable Law (including privacy laws) or have a significant adverse impact on the disclosing Party's legal position or defense (including the loss of attorney-client privilege) with respect to any such Occurrence. In the event that either Party determines that disclosure of relevant factual information regarding an Occurrence could violate Applicable Laws (including privacy laws) or have a significant adverse impact on its legal position or defense (including the loss of attorney-client privilege), the determining Party shall promptly notify the other Party in writing that the determining Party is exercising its right not to disclose relevant factual information regarding an Occurrence. (d) Each Party shall follow its Applicable Compliance/Review Policies subject to specific exceptions explicitly determined by the Compliance Managers. 3. APPOINTMENT; PRODUCT OWNERSHIP; MARKETING AND SALES. 3.1 Appointment. (a) Exclusive Arrangement. Commencing on the Launch Date, Exact and its Affiliates hereby grant to Pfizer and its Affiliates, on an exclusive basis for the Co-Promote Field (except as to Exact and its Affiliates), and Pfizer accepts, the right and obligation to Promote and Detail the Product in the Territory during the Term jointly with Exact, in accordance with the terms and conditions of this Agreement, all Applicable Laws and the applicable Annual Marketing Plan. Except as set forth in this Agreement, such right shall be non-transferable and non-sublicensable. In implementing its obligations under this Agreement, Pfizer, without charge or expense to Exact (other than as expressly set forth in Sections 3.6 and 4.2(c) of this Agreement), shall provide facilities, personnel (including management and Sales Representatives) and other resources as Pfizer, in its reasonable discretion but not inconsistent with the express terms of this Agreement, believes necessary. The Parties specifically agree that Exact shall not use the Pfizer name, logo or any Trademarks of Pfizer on any materials, including Promotional Materials, without the express written consent of Pfizer. Notwithstanding this Section 3.1 to the contrary, Exact retains the right to Promote the Product on its own behalf in the Co-Promote Field and, subject to Section 3.1(c), Pfizer shall not Promote or Detail the Product outside the Territory or outside the Co- Promote Field. (b) Grant of License to Pfizer. Subject to the terms of this Agreement, Exact on behalf of itself and its Affiliates, hereby grants to Pfizer a non-exclusive, royalty free license, with the right to sublicense to one or more of its Affiliates, under the Exact House Marks, the Exact Trademarks and the Exact Copyrights, during the Term, to the extent necessary or appropriate to allow Pfizer and its Affiliates to carry out activities under this Agreement including to Promote and Detail the Product in the Co-Promote Field in the Territory. Such license shall be non-transferable and non-sublicensable 17

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(except as provided in this Agreement) and shall automatically terminate upon the expiration or earlier termination of this Agreement. (c) Right of First Negotiation. (i) During the Term, if Exact (i) enters a formal process authorized or directed by its board of directors or CEO to seek and enter into an arrangement or (ii) intends to agree to a term sheet or seeks to sign a letter of intent or similar arrangement to grant an exclusive commercial license to a Third Party solely to promote or sell the Product outside the Territory (Ex-US Commercial Rights), Exact shall first notify Pfizer of such intent (a Ex-US Commercial Rights Transfer Notice) and Pfizer shall have thirty (30) days thereafter to notify Exact of its desire to obtain the Ex-US Commercial Rights that are the subject of the Ex-US Commercial Rights Transfer Notice. Promptly upon receipt of notice from Pfizer, Exact and Pfizer shall engage in exclusive good faith negotiations to enter into a definitive written agreement for the Ex-US Commercial Rights. If Pfizer and Exact are unable to reach agreement on the terms of such Product rights within forty-five (45) days of the commencement of negotiations, Exact shall be free to enter into negotiations and consummate an agreement with any Third Party regarding such Ex-US Commercial Rights; provided that the economic terms of such agreement shall be no more favorable to such Third Party than those last offered to Pfizer. (ii) During the Term, if Exact desires to grant an exclusive commercial license to a Third Party solely to Promote or sell the Product in the OB/Gyn Field in the Territory (the OB/Gyn Commercial Rights), Exact shall first notify Pfizer of such intent (a OB/Gyn Commercial Rights Transfer Notice) and Pfizer shall have thirty (30) days thereafter to notify Exact of its desire to obtain the OB/Gyn Commercial Rights that are the subject of the OB/Gyn Commercial Rights Transfer Notice. Promptly upon receipt of notice from Pfizer, Exact and Pfizer shall engage in exclusive good faith negotiations to enter into a definitive written agreement for the OB/Gyn Commercial Rights. If Pfizer and Exact are unable to reach agreement on the terms of such Product rights within forty-five (45) days of the commencement of negotiations, then Exact shall be free to enter into negotiations and consummate an agreement with any Third Party regarding such OB/Gyn Commercial Rights; provided that the economic terms of such agreement shall be no more favorable to such Third Party than those last offered to Pfizer. (iii) Notwithstanding the foregoing, this Section 3.1(c) shall not apply to (i) any transfer of rights to the Product in the ordinary course of business of Exact, (ii) the sale of the Product within and outside of the Territory, of all or substantially all of the assets of Exact, or sale 18

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of capital stock of Exact, whether in connection with a merger, acquisition or other similar transaction or (iii) any agreements with Third Parties in territories for which Exact has an existing distribution or other similar agreement. 3.2 Responsibility for Product. (a) Retained Rights; Ownership of Product. Except as specifically set forth in this Agreement, Pfizer shall have no other rights with respect to the Product, and shall not Promote, Market or otherwise commercialize the Product except as expressly authorized under this Agreement. Exact retains, and at all times during the Term shall retain, all rights in and relating to the Product not expressly granted to Pfizer under this Agreement, including all proprietary and property interests in and to the Product. In furtherance of the foregoing, Exact retains all rights of and responsibility for (i) Product pricing, including any rebates or discounts; (ii) manufacturing; (iii) research and development, including any trials; (iv) intellectual property defense and enforcement related to the Product; (v) product liability claims and related litigation related to the Product; (vi) government investigations related to the Product; (vii) the day-to-day operations and management of Exact's Representatives; and (viii) engagement with Governmental Authorities with respect to the Product. Pfizer will neither have, nor represent that it has, any control over or proprietary or property interests in the Product. Nothing contained in this Agreement shall be deemed to grant to Pfizer or its Affiliates any license, right, title or interest in or to any patent, Trademark, copyright, trade secret or other similar property of Exact, except as provided for in Section 3.1(b), Section 5.3(c) or otherwise authorized in writing by Exact for Pfizer to perform its obligations under this Agreement. Likewise, nothing contained in this Agreement shall be deemed to grant to Exact or its Affiliates any license, right, title or interest in or to any patent, Trademark, copyright, trade secret or other similar property of Pfizer or its Affiliates except as may be authorized in writing by Pfizer for Exact to perform its obligations under this Agreement. (b) Exact Product Responsibilities. During the Term, as between the Parties, Exact shall remain solely responsible, at its expense , except as expressly otherwise provided in this Agreement, for all activities and liabilities that the owner and Regulatory Approval holder of an FDA approved medical device would normally have, including, in each case with respect to the Territory, the following: (i) manufacturing, in accordance with the QSR and Applicable Law (including conducting all quality assurance testing) sufficient quantities of Product to meet market demand therefore; (ii) processing and having sufficient laboratory and manufacturing capacity to process Product Laboratory Services to meet demand, including return receipt and laboratory processing of patient samples; 19

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(iii) ensuring all laboratory processing of patient samples are conducted in accordance with CLIA Certificate of Accreditation and patient results are provided to ordering healthcare providers in a timely manner; (iv) ensuring that the Product is not misbranded, as defined in the FD&C Act; (v) handling all customer service activities relating to the Product, including responding in an appropriate and timely fashion to all medical and other inquiries and complaints regarding the Product in accordance with its Applicable Compliance/Review Policies; (vi) contracting with Payers, including entering into contracts for reimbursement of the Product Laboratory Services; (vii) using commercially reasonable efforts to maintain the Exact Trademarks listed on Exhibit 1.39; (viii) setting the price of the Product Laboratory Services, including establishing, processing and paying for any rebates, discounts, chargebacks or other sales incentives associated with the sale of the Product Laboratory Services; (ix) subject to Section 6.1, handling all product liability claims or other claims associated with or arising out of the manufacture, distribution, sale or use of the Product, including managing any litigation associated therewith and paying any damages, fines or other compensation that may be awarded by any Government Authority or that are due as a result of any settlement of any such claim; (x) handling, in a timely and appropriate manner, all government inquiries related to the Product Laboratory Services and the manufacture, distribution, Marketing, Promotion, sale or use of the Product; and (xi) preparing and submitting in a timely manner and in a manner consistent with Applicable Law all reports and information that are required to be submitted to any Government Authority relating to the Product and Product Laboratory Services. (c) Exact and Pfizer Product Responsibilities. During the Term, without limiting either Party's other responsibilities under this Agreement, the Parties shall: (i) establish and maintain a sufficient number of Sales Representatives Promoting the Product to perform the obligations hereunder per the Annual Marketing Plan and consistent with the sales deployment plan included in the Annual Marketing Plan, which initial sales deployment plan for the six-month period beginning on and 20

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immediately following the Launch Date, is attached hereto as Exhibit 3.2(c)(i) (the Sales Deployment Plan); (ii) Market, Promote and Detail the Product in the Co-Promote Field in accordance with the Annual Marketing Plan, Applicable Laws, all regulatory and professional requirements including FDA's regulations and guidelines concerning the Advertising of prescription medical devices subject to pre-market approval, and each Party's Applicable Compliance/Review Policies and, with respect to Exact, the AdvaMed Code of Ethics on Interactions with Health Care Professionals (revised as of July 2009 and as further revised from time to time) (the AdvaMed Code) and, with respect to Pfizer, the Pharmaceutical Research and Manufacturers of America Code on Interactions with Healthcare Professionals (the PhRMA Code); provided that if there is any conflict between the AdvaMed Code and the PhRMA Code in connection with the implementation of the Annual Marketing Plan, the Compliance Managers shall review and use commercially reasonable efforts to resolve such conflict; (iii) review customer target lists for all Sales Representatives in accordance with the Annual Marketing Plan to ensure that their Promotion is directed to those Eligible Prescribers who are likely to prescribe, recommend or purchase the Product consistent with the approved Product Label and all Applicable Laws and its Applicable Compliance/Review Policies; provided that each Party has the sole discretion to select their target customers from the target lists included in the Annual Marketing Plan and the Party's Sales Representatives shall have authority to Promote and Detail to the Eligible Prescribers on the target lists in their reasonable discretion, in accordance with each Party's respective internal policies and practices; (iv) work collaboratively with the other Party in developing, preparing and generating specific tactics and activities in the Annual Marketing Plan, which shall include supporting the development of all Promotional Materials, Training Materials and other materials generated pursuant to any Annual Marketing Plan; and (v) provide investment and support consistent with Sections 3.5, 3.6 and 4.1, as applicable. (d) Advertising. (i) Subject to the provisions of Section 3.2(d)(ii) with respect to the remainder of Calendar Year 2018 and for Calendar Year 2019, Exact and Pfizer shall develop an annual Advertising plan for the Product as part of the Annual Marketing Plan. The annual Advertising plan shall include the targets for such Advertising, 21

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which shall be updated on an annual basis at the same time and in the same manner as the Annual Marketing Plan. In accordance with each such approved Advertising plan, Pfizer shall develop and execute all media planning and buying of Advertising consistent with its practice for its own product portfolio. (ii) The provisions of this Section 3.2(d) shall have no impact on Exact's Advertising plan for the Product for 2018. The Advertising plan for Calendar Year 2019 shall be Exact's Advertising plan; provided, Pfizer may review and make recommendations on such Advertising plan for Calendar Year 2019 and Exact shall consider such recommendations in good faith and use commercially reasonable efforts to incorporate agreed-upon Pfizer recommendations. It is acknowledged by the Parties that as of the Effective Date Pfizer has executed its television/video media buying on its own behalf for broadcast year 2019 (4Q2018-3Q2019). With respect to broadcast year 2019, Pfizer shall use commercially reasonable efforts and in good faith execute the television/video buy plan in the Calendar Year 2019 Advertising plan in the scatter market. Exact acknowledges that pricing and inventory for buy placement in the scatter market may not have the pricing advantage or delivery guarantees. For media buying of non-television/video in the Calendar Year 2019 Advertising plan, Pfizer shall in good faith integrate the Product into Pfizer portfolio media planning and buying for non-television/video. (iii) The cost of all media buying of Advertising for the Product by or through Pfizer shall be equal to the actual cost of such activities billed to Pfizer (including any third party service fees incurred by Pfizer) and shall not include any markup, administrative fee or service charge. (iv) Subject to compliance by Pfizer with the terms of this Section 3.2(d), during the Term, Exact agrees (A) not to enter into any new binding arrangement with any media vendor for Advertising of the Product without the written consent of Pfizer, which consent shall not be unreasonably withheld, (B) not to meet with any advertising agency or media vendor to discuss any Advertising proposals for content development and creative direction of the Product, without providing Pfizer with a reasonable opportunity for a representative of Pfizer present and participate and (C) to promptly inform Pfizer if it enters into any arrangement with any advertising agency with respect to the Product. (v) Exact agrees that any binding commitment made by Pfizer pursuant to this Section 3.2(d) for media buying for the Product shall also be binding to Exact; provided that such commitment is consistent with the applicable Annual Marketing Plan and the 22

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budget included therein. (vi) After the Effective Date, the Parties will mutually agree to a process by which Pfizer will interact with Exact with respect to the activities undertaken by Pfizer pursuant to this Section 3.2(d). (vii) Notwithstanding the foregoing, Exact may continue any binding commitments as of the Effective Date, including Advertising purchasing and placement activities, related to and in connection with the sponsorship of sporting events (e.g., golf tournaments), celebrity sponsorships (e.g., Harry Connick serving as a Product spokesperson) and those other activities set forth in the Annual Marketing Plan (the Exact Sponsorships and Related Activities); provided, that Pfizer shall use commercially reasonable efforts to take responsibility of television/video and media buying related to such Exact Sponsorships and Related Activities following the Effective Date. The Exact Sponsorships and Related Activities may, as mutually agreed by the Parties, be included in the applicable annual Advertising plan. (viii) Following the Term and during the Tail Period subject to Sections 8.7 and 8.8(b), at the request of Exact, Pfizer shall, based on an agreed Advertising plan, plan and execute the media planning and buying plan in a substantially similar manner as it did during the Term, as such plan is updated on an annual basis during the Tail Period. Pfizer shall provide Exact with invoicing of Advertising buying during the Tail Period consistent with its invoicing practice during the Term. This invoice shall be provided within five (5) days of the end of each month during the Tail Period and shall set forth all Advertising costs, including any Pfizer's internal and overhead costs attributable to media buying for the Product, during month preceding the month that the invoice is delivered. Exact shall pay the invoice provided by Pfizer within five (5) days of the date that it receives the invoice. (ix) Within forty-five (45) calendar days after the end of each Calendar Quarter, Pfizer will deliver to Exact a report describing in reasonable detail the media buying activities for the just completed Calendar Quarter and any material deviations from the approved Advertising plan that occurred during such Calendar Quarter. (x) Except for Calendar Year 2018 and 2019 Advertising plan, the Parties shall mutually agree to the Advertising plan and any dispute with respect to such Advertising plan or arising out of material deviation of media buying by Pfizer shall be considered a Disputed JOC Matter and subject to escalation to the JSC under Section 2.3(d). Until such Disputed JOC Matter is resolved, the Parties will continue to operate under the then-current Advertising plan. Without limiting the foregoing, a deviation from the media 23

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buying obligations under an Advertising plan by twenty percent (20%) or more shall be deemed to be material. (e) Product Training. (i) Promptly (and in any event within twenty (20) days) following the Effective Date, Exact shall be responsible for providing Product Training and Training Materials to Pfizer sales trainers (the Pfizer Trainers) who shall then train Pfizer's Sales Representatives who shall Promote the Product using a training program relating solely to the Product and the Product Laboratory Service (including Training Materials). After the initial training, Exact shall periodically provide additional Product Training and the Parties shall agree to the frequency, time and place such additional Product Training will be rolled out to Sales Representatives. (ii) Exact shall bear all costs and expenses of training its Sales Representatives, its training facilities and the cost of developing Training Materials and the training of Pfizer Trainers with respect to the Product and the Product Laboratory Service. Pfizer shall be responsible for all travel, lodging, meal and other expenses and out-of- pocket expenses incurred by Pfizer's Sales Representatives in connection with such Product Training. (iii) Upon termination or expiration of this Agreement, at Exact's election, Pfizer either shall (A) return to Exact or (B) destroy and certify to the Exact such destruction, all Training Materials in the possession of, or under the control of, Pfizer. (iv) Pfizer shall ensure that no Pfizer Representative shall Promote the Product or Product Laboratory Service unless he or she demonstrates sufficient knowledge by meeting the validation requirements of Exact. Pfizer shall maintain, and make available upon request by Exact, records of all testing or certification results, including copies thereof. (v) The Parties shall cooperate in good faith to schedule, plan and conduct a pre-launch meeting for all Sales Representatives Detailing the Product (the Pre-Launch Meeting), which shall occur promptly following training of the Pfizer Sales Representatives in accordance with this Section 3.2(e). The Parties shall use commercially reasonable efforts to conduct the Pre-Launch Meeting as an in-person meeting by the first week of October 2018. (f) Promotional Materials. During the Term, the Parties agree to develop Promotional Materials together in accordance with the Annual Marketing Plan for use in Promoting the Product in the Territory. Each Party shall: 24

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(i) only use and distribute the Promotional Materials for use in Promoting the Product; provided, however, that Exact may continue to utilize any remaining promotional materials for the Product created prior to the Effective Date, but Exact will not create any new promotional materials other than the Promotional Materials; (ii) instruct its Representatives to use, and will use commercially reasonable efforts to train and monitor its Representatives to ensure that such Representatives use, only Promotional Materials approved by the JRC; (iii) not, and shall ensure that its Affiliates and agents do not, change or alter any Promotional Materials in any way prior to their distribution or use by such Party or its Sales Representatives without JRC approval; and (iv) (A) use commercially reasonable efforts to train its Representatives with respect to, (B) instruct its Representatives to, and (C) establish appropriate internal systems, policies and procedures for the monitoring of its Representatives with the goal of ensuring that such Representatives will: (A) limit claims of efficacy and safety for the Product to those that are (1) consistent with approved Promotional claims in, and not add, delete or modify claims of efficacy and safety in the Promotion of the Product in any respect from those claims of efficacy and safety that are contained in, the then-effective Annual Marketing Plan, (2) consistent with Applicable Law and (3) consistent with the Product Label; (B) not make any changes or alterations to Promotional Materials; and (C) use Promotional Materials only in a manner that is consistent with this Agreement, Applicable Law and the Product Label. For clarity, the foregoing restrictions shall not apply to Exact Sciences Laboratories, LLC or any Representative of Exact or any of its Affiliates on the customer care team or market access team. (g) Representatives. Each Party shall be legally responsible and liable for the actions, omissions and conduct of their respective Sales Representatives and other Representatives performing activities hereunder. Each Party shall ensure that all Persons for whom they have legal responsibility and liability in accordance with the foregoing sentence comply with all Applicable Laws, the AdvaMed Code or the PhRMA Code, as applicable, Applicable Compliance/Review Polices, and all requirements of this Agreement, and shall implement and maintain policies and procedures to ensure such compliance. 25

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(h) Marketing Authorization. Exact shall have the sole right and responsibility between the Parties to take, and shall take, all actions with respect to the Product reasonably necessary in order to maintain the Regulatory Approvals permitting the Marketing and sale of the Product in the Territory throughout the Term. (i) Withdrawal. Exact shall have sole authority to determine whether to recall or withdraw any Product in the Territory; provided, however, Exact shall notify Pfizer of its decision, including the reasons therefore, regarding any such recall or withdrawal promptly after such decision is made. Exact shall be solely responsible for and shall bear all costs associated, directly or indirectly, with any recalls or withdrawals of the Product. (j) Customer Service Activities; Safety Reporting. Exact shall have sole authority to handle all customer service activities regarding the Product in accordance with Section 3.2(b)(v). Promptly upon receipt (and in any event within one Business Day), Pfizer shall refer all customer service inquiries regarding the Product, including all medical and other inquiries and complaints, to Exact for resolution. Following the Effective Date but before the Launch Date, the Parties shall discuss and agree to a procedure by which Product inquiries to, or by, Pfizer will be sent to Exact to comply with applicable safety reporting requirements and obligations for the Product. 3.3 Annual Marketing Plan. (a) General. Promptly following the Effective Date, Exact and Pfizer shall develop an Annual Marketing Plan for the Product. Unless otherwise agreed by the Parties, the JOC shall prepare each Annual Marketing Plan and submit it for review and approval by the JSC by no later than October 1  of the then-current Calendar Year so that the JSC shall have a reasonable opportunity to review, revise and approve such Annual Marketing Plan by no later than October 31  of the Calendar Year preceding the Calendar Year to which such Annual Marketing Plan relates; provided that the Annual Marketing Plan for the 2019 Calendar Year shall be finalized by the JOC and submitted to the JSC promptly following the Effective Date, and in any event no later than December 1, 2018. It is the intent of the Parties that the Annual Marketing Plan for the remainder of 2018 will be approved by the JSC no later than October 1, 2018. If either Party desires to revise or update an approved Annual Marketing Plan prior to the end of a Calendar Year, it shall notify the JOC of such desired revision, and the JOC shall review any such proposed revision and determine whether to submit such revision to the JSC for review and approval. (b) Plan Contents. The Annual Marketing Plan for each Calendar Year beginning with the 2019 Calendar Year shall contain at a minimum the categories set forth in Exhibit 3.3(b) and such other information that the JOC or JSC believes is necessary. The 2018 Annual Marketing Plan shall contain 26

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a high-level summary of the Sales Deployment Plan and use of Shared M&P Expenses for the remainder of 2018. 3.4 Sales Promotion, Detailing Efforts and IDN Promotion. (a) Sales Promotion. Commencing on the Launch Date, each of Exact and Pfizer shall implement the sales Detailing plan set forth in the applicable Annual Marketing Plan and the Sales Deployment Plan. In the case of Pfizer, Pfizer shall ensure that (i) the number of Details in a Calendar Year by Pfizer Sales Representatives is not less than six hundred twenty-five thousand (625,000) Details (for the remainder of 2018 Calendar Year following the Launch Date, Pfizer shall deliver one hundred forty thousand (140,000) Details) and (ii) if the Product is Promoted by Pfizer Sales Representatives (A) in position 2 or higher, the Incentive Compensation weighting directly tied to the Product shall not be less than thirty percent (30%) of Incentive Compensation available to be earned by such Sales Representative in the applicable Calendar Quarter and (B) in position 3 or lower, the Incentive Compensation weighting directly tied to the Product shall not be less than twenty-five percent (25%) of Incentive Compensation available to be earned by such Sales Representative in the applicable Calendar Quarter. If Pfizer delivers less than five hundred sixty-two thousand five hundred (562,500) Details in a Calendar Year, then the Promotion Fee due Pfizer for such Calendar Year shall be reduced by the applicable percentage set forth in the table on Exhibit 3.4(a), with such reduction to be deducted from remittance of the Promotion Fee for the last Calendar Quarter of such Calendar Year; provided that if such deduction exceeds the amount payable for such Calendar Quarter then Exact shall apply any such remaining deduction to the Promotion Fee for the next Calendar Quarter or Calendar Quarters, as necessary until the total deduction has been applied. If Pfizer delivers less than four hundred fifty thousand (450,000) Details in a Calendar Year, in addition to percentage reduction of the Promotion Fee set forth in the table on Exhibit 3.4(a), Exact shall have the right to terminate this Agreement under Section 8.3(b), which termination shall not be subject to the right of Pfizer to cure such breach. In no event shall Pfizer owe any monies to Exact for Detail shortfalls under this Agreement other than to refund the Promotion Fee owed to Exact due to Detail shortfall in accordance with this Section 3.4(a). Each Party shall be responsible for its own Sales Representatives costs attributable to the Product, including base salary and Incentive Compensation, normal travel and entertainment expenses, cost of fleet vehicles and other expenses normally associated with Promotion of products and services similar to the Product. (b) Detailing Efforts and Costs. Each Party shall have sole and exclusive control of all Detailing efforts and activities by its Sales Representative and Representatives, and shall be solely responsible for the costs thereof. Notwithstanding anything to the contrary in this Agreement or the 27

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Annual Marketing Plan, any Detailing costs incurred by a Party or its Affiliates in delivering the Details assigned to such Party shall be the sole responsibility of such Party or Affiliate and shall not be a Baseline M&P Expense or Shared M&P Expense or otherwise a shared cost pursuant to this Agreement. (c) IDN Promotion. As part of this Agreement, Pfizer agrees to deploy its IDN Key Account Managers (or successor team with similar responsibilities, the KAM Team) to support understanding and uptake of the Product by IDN customers in accordance with the Annual Marketing Plan. In furtherance, prior to the beginning of each Calendar Year, Pfizer shall discuss and agree with Exact on the defined goals and key performance indicators for the KAM Team. Pfizer and Exact shall agree to execution goals and deliverables of resources, subject to review and approval of the JRC, to be used by the KAM Team with IDN customers, and the tracking of such execution goals and deliverables using a scorecard. (d) Reporting. Within fifteen (15) Business Days after the end of each month during the Term, each Party shall provide to the other Party a written report setting forth (i) the number of Details completed during such month and (ii) any changes to Incentive Compensation or selling position of the Product by Sales Representatives during such month. Exact shall provide to Pfizer a weekly report detailing, on an Eligible Prescriber-by-Eligible Prescriber basis, the Product Laboratory Services activity, including but not limited to, the number of orders received, number of shipments sent to patients, and number of results sent back to prescriber. 3.5 Pfizer Investment and Support. Pfizer shall make financial investment in Marketing and Promoting the Product in accordance with and in all cases subject to the budget in the applicable Annual Marketing Plan (as the same may be adjusted as provided in Section 3.3) and shall be equal to fifty percent (50%) of Shared M&P Expense, in the amounts set forth in the chart below. Pfizer, at its own expense, shall use commercially reasonable efforts to carry out Pfizer's responsibilities under the Annual Marketing Plan, which commercially reasonable efforts shall include committing the appropriate resources to assist in the implementation of the Annual Marketing Plan and to carry out the activities Pfizer is responsible for thereunder and hereunder. Pfizer will make investments as set forth in the chart below. Notwithstanding the above, Pfizer agrees to invest its portion of Shared M&P Expense each Calendar Year subject to, (a) Exact spending at least twelve million dollars ($12,000,000) in Baseline M&P Expense each Calendar Quarter (provided, that notwithstanding Exact's quarterly spend for Baseline M&P Expense, Exact shall spend a total of eighty million dollars ($80,000,000) in Baseline M&P Expense each Calendar Year measured as of the end of each Calendar Year), (b) an amount equal to the total Shared M&P Expense contributed by both Parties is used for Marketing and Promotion and (c) a total sum of not less than eighty million dollars ($80,000,000) of Baseline M&P Expense is used for Marketing and Promotional activities, including the costs of Exact Sponsorships and Related Activities; provided, however, the Parties may agree to reallocate Shared M&P Expenses by 28

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mutual written consent. Pfizer agrees to match dollar for dollar Exact's Shared M&P Expense for a Calendar Year to up to the amounts specified in the chart below. Calendar Year Pfizer's Shared M&P Expense 2018 $24 million 2019 $22 million 2020 $21 million 2021 $20 million For any investment period less than a full Calendar Year (other than 2018), Pfizer's Shared M&P Expense investment shall be adjusted pro rata based on the number of months remaining until the end of the Calendar Year. For Calendar Year 2018, Pfizer's Shared M&P Expense shall be adjusted to equal the number of months remaining from the Launch Date to December 31, 2018 divided by twelve (12) multiplied by twenty-four million dollars ($24,000,000); provided the requirements of this Section 3.5 are satisfied. Pfizer shall have no obligation to incur Shared M&P Expenses in excess of the amount in the above chart for the given Calendar Year, unless the Parties mutually agree to increase their portion of the Shared M&P Expense. 3.6 Exact Investment and Support. Exact shall commit, at its sole cost and expense and not subject to reimbursement by Pfizer, to maintaining its originally planned out-of-pocket Marketing and Promotional spends of eighty million dollars ($80,000,000) in each of the 2018, 2019, 2020, and 2021 Calendar Years, including the Exact Sponsorships and Related Activities (the Baseline M&P Expense). In addition to Baseline M&P Expense, Exact shall invest Shared M&P Expense in amounts to be matched by Pfizer pursuant to Section 3.5 above. Exact, at its own expense, shall use its commercially reasonable efforts to carry out Exact's responsibilities under the Annual Marketing Plan, which commercially reasonable efforts shall include committing the appropriate resources to assist in the implementation of the Annual Marketing Plan and to carry out the activities Exact is responsible for thereunder. In addition, except as provided for in Section 3.2(d), Exact shall be responsible for contracting with agencies and vendors who are or will be providing services (including the development of Promotional Materials and Training Materials) associated with the execution of the Annual Marketing Plan, shall timely pay all amounts due to such agencies and vendors for such services and shall authorize Pfizer to interact directly with and instruct such agencies and vendors in connection with such services as necessary and appropriate under this Agreement. Calendar Year Exact's Baseline M&P Expense Exact's Shared M&P Expense 2018 $80 million $24 million 2019 $80 million $22 million 2020 $80 million $21 million 2021 $80 million $20 million 29

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For any investment period less than a full Calendar Year (other than 2018), Exact's Baseline M&P Expense and Shared M&P Expense investment shall be adjusted pro rata based on the number of months remaining until the end of the Calendar Year. For Calendar Year 2018, Exact's Baseline M&P Expense and Shared M&P Expense shall be adjusted to equal the number of months remaining from the Launch Date to December 31, 2018 divided by twelve (12) multiplied by eighty million dollars ($80,000,000) or twenty-four million dollars ($24,000,000), as applicable; provided that the requirements of this Section 3.6 are satisfied. Exact shall have no obligation to incur Shared M&P Expenses in excess of the amount in the above chart for the given Calendar Year, unless the Parties each agree to increase their portion of the Shared M&P Expense. 3.7 Changes in Shared M&P Expenses. In the event the Parties agree to not implement or to discontinue implementation of a strategy or tactic included in any Annual Marketing Plan, the applicable Shared M&P Expense investment set forth above shall be either (a) adjusted if, during good faith discussions at the JSC, the Parties agree on the implementation of a substitute strategy or tactic in place of the strategy or tactic that was not implemented or was discontinued, which adjustment will reflect any difference in cost of such substitute strategy or tactic or (b) reduced by the amount(s) allocated in the applicable budget for such strategy or tactic under the applicable Annual Marketing Plan, if the Parties, during good faith discussions at the JSC, agree not to implement a substitute strategy or tactic in place of the strategy or tactic that was not implemented or which was discontinued. Any amount saved as result of this Section 3.7 shall be re-deployed to other expenses associated with the Marketing of the Product, unless otherwise determined by the JSC. 4. ACCOUNTING. 4.1 Responsibility for Shared M&P Expenses. (a) General. Shared M&P Expenses contributed by Exact and Pfizer pursuant to Sections 3.5 and 3.6 shall be used solely to fund activities pursuant to the Annual Marketing Plan. The Parties shall agree to Calendar Quarter phasing of Baseline M&P Expenses and Shared M&P Expenses for budgeting purposes. The Parties will spend amounts contributed to Baseline M&P Expenses and Shared M&P Expenses simultaneously throughout each Calendar Year, in a manner consistent with the approved budget set forth in the Annual Marketing Plan. Any Baseline M&P Expenses and Shared M&P Expenses budgeted but not spent in Calendar Quarter may be rolled over into the next Calendar Quarter. For the avoidance of doubt, Pfizer will match dollar for dollar Exact's Shared M&P Expense for a Calendar Year to up to the amounts set forth in Section 3.5. (b) Remainder of 2018. Promptly after the Effective Date, Exact shall discuss with Pfizer its planned Marketing and Promotional spend associated with the Product for the period beginning on the Effective Date and ending on December 31, 2018, so that Pfizer may understand and recommend 30

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reallocation of all or any portion of such planned Marketing and Promotional spend associated with the Product. Budget phasing of 2018 pro-rated Baseline M&P Expenses and pro-rated Shared M&P Expenses shall be done on the Calendar Quarter basis. Exact agrees it shall spend at least eighty million dollars ($80,000,000) toward Marketing and Promotion (including any amounts spent between January 1, 2018 and the Effective Date) and the pro-rated Shared M&P Expense for 2018. (c) Reporting. Within fifteen (15) Business Days after the end of each month during the Term beginning with October, 2018, Exact shall provide to Pfizer a written report setting forth the amount of Baseline M&P Expenses and Shared M&P Expenses incurred and paid for by Exact during such month, which report shall also provide sufficient itemization and detail related to such expenses in order for Pfizer to confirm that such Baseline M&P Expenses and Shared M&P Expenses were incurred pursuant to the Annual Marketing Plan. Pfizer, within fifteen (15) Business Days after the end of each month during the Term, beginning with October, 2018, shall prepare and provide to Exact a written report setting forth the aggregate amount of Shared M&P Expenses incurred and paid for by Pfizer during such month, along with sufficient itemization and detail related to such expenses in order for Exact to confirm that such Shared M&P Expenses were incurred pursuant to the Annual Marketing Plan. 4.2 Promotion Fee. (a) Calculation of Promotion Fee. From the Launch Date and ending on the last day of the next Calendar Quarter and each subsequent Calendar Quarter during the Term, Exact shall owe Pfizer a service fee equal to fifty percent (50%) of the product of: Laboratory Service Revenue minus Baseline Laboratory Service Revenue (Incremental Laboratory Service Revenue) for the Calendar Quarter multiplied by Gross Margin Percent for the Calendar Quarter (such product, the Promotion Fee). In no event shall the Gross Margin Percent used in the calculation of the Promotion Fee be less than sixty-eight percent (68%) or more than seventy-four percent (74%). The calculation of the Promotion Fee pursuant to this Section 4.2(a) is subject to Section 4.2(c) below. Promotion Fee(s) and all compensation paid by Exact to Pfizer under this Agreement, even where calculated as a percentage of sales, is intended to compensate Pfizer a fair market value for the entirety of services that Pfizer is providing to Exact hereunder. The formula for the calculation of the Promotion Fee is as follows: A = Laboratory Service Revenue B = Baseline Laboratory Service Revenue C = Gross Margin Percent Promotion Fee = 0.5 * (A-B) * C 31

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(b) Baseline Laboratory Service Revenue. The chart below sets forth the Baseline Laboratory Service Revenue for the Product for each Calendar Year during the Term (the Calendar Year Baseline Laboratory Service Revenue). In the Annual Marketing Plan the appropriate Calendar Year Baseline Laboratory Service Revenue shall be allocated among each Calendar Quarter during such Calendar Year, taking into consideration seasonality or other sales demand variables. For 2018, the first Calendar Quarter shall be from the Launch Date to December 31, 2018 and the Calendar Year Baseline Laboratory Service Revenue allocated to that Calendar Quarter shall be $130 million.

Calendar Year Baseline Laboratory Service Revenue 2018 $441 million 2019 $622 million 2020 $861 million 2021 $1.191 billion (c) Supplemental Promotion Fee. (i) Subject to Pfizer's compliance with Sections 3.4(a)(i) and 3.4(a)(ii), (A) Exact shall pay Pfizer the amount, if any, by which the aggregate amount of the Promotion Fee incurred by Exact to Pfizer during the remainder of 2018 Calendar Year and 2019 Calendar Year (the First Promotion Fee Period) is less than $37.5 million (the First Supplemental Promotion Fee), and (B) Exact shall pay Pfizer the amount, if any, by which the aggregate Promotion Fee incurred by Exact to Pfizer during each of Calendar Year 2020 and 2021 is less than $30 million (Annual Supplemental Promotion Fee), in each case to compensate Pfizer for the sales, Marketing and other performance provided by Pfizer under this Agreement. (ii) As of June 30 of each Calendar Year during the Term, Exact shall calculate a partial-period amount to be paid toward the potential First Supplemental Promotion Fee or the potential Annual Supplemental Promotion Fee, as the case may be. With regard to the First Supplemental Promotion Fee, the partial-period payment shall be equal to the amount by which the Promotion Fee for 2018, and the first six (6) months of Calendar Year 2019, is less than $22.5 million, and with regard to each Annual Supplemental Promotion Fee, the partial-period payment shall be equal to the amount by which the Promotion Fee for the six-month (6-month) period through June 30 is less than $15 million. (iii) As of December 31 of each Calendar Year during the Term, Exact shall calculate the First Supplemental Promotion Fee or the Annual Supplemental Promotion Fee, as the case may be, if any, for the entirety of the applicable period. Exact shall pay Pfizer the First 32

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Supplemental Promotion Fee or the Annual Supplemental Promotion Fee, as the case may be, if any, less any partial-period payment made by Exact during the applicable period pursuant to Section 4.2(c)(ii). (iv) To the extent the amount of the Promotion Fee for the First Promotion Fee Period exceeds the First Supplemental Promotion Fee, Exact shall be entitled to a credit of such excess amount up to the amount of any partial-period payment made by Exact during such First Promotion Fee Period pursuant to Section 4.2(c)(ii), and Exact shall apply such credit toward the Promotion Fee payment due Pfizer for the fourth Calendar Quarter of 2019 (or due for subsequent Calendar Quarters until such credit is fully exhausted). To the extent the amount of the Promotion Fee for any Calendar Year after 2019 exceeds the Annual Supplemental Promotion Fee for such Calendar Year, Exact shall be entitled to a credit of such excess amount up to the amount of any partial-period payment made by Exact during such Calendar Year pursuant to Section 4.2(c)(ii), and Exact shall apply such credit toward the Promotion Fee payment due Pfizer for the fourth Calendar Quarter of such Calendar Year (or due for subsequent Calendar Quarters until such credit is fully exhausted). (v) Any amounts due under Sections 4.2(c)(i) and (ii) shall be payable within thirty (30) days after each of June 30 , and December 31  of each Calendar Year, beginning with June 30, 2019, as applicable. (d) OB/Gyn Sales. If Exact (i) grants OB/Gyn Commercial Rights to a Third Party in accordance with Section 3.1(c) or (ii) launches its own sales channel in the OB/Gyn Field (as applicable, the Excluded Channel), then the Laboratory Service Revenue used to perform the calculation set forth in Section 4.2(a) and to determine royalty payments pursuant to Section 8.7 shall exclude all Laboratory Service Revenue attributable to the Excluded Channel except a mutually agreed percentage of Laboratory Service Revenue during the applicable period attributable to such Excluded Channel (the Included Revenue Percentage); provided, that (A) such Included Revenue Percentage will reflect the anticipated relative contribution of the Parties with regard to the Excluded Channel after such launch, and (B) the Included Revenue Percentage shall not be less than the revenue percentage attributable to the OB/Gyn Field as of the date of such launch, calculated on the same basis that revenue from the OB/Gyn Field is calculated by Exact on the Effective Date. 4.3 Fee Statements and Payments. (a) Monthly and Quarterly Financial Deliverables. Exact shall on a monthly basis, not later than fifteen (15) Business Days after the end of the month, deliver to Pfizer a full suite of performance data, including Product Laboratory Services completed, average selling price per unit, Laboratory Service Revenue, rebates, net revenue and a detailed Cost of Sales schedule 33

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(consisting of collection kits distributed to patients, royalties paid, shipping costs, lab operating expenses and reagent costs). Not later than fifteen (15) Business Days after the end of the Calendar Quarter, Exact shall deliver to Pfizer a rolling sales forecast and an estimate, for the remaining Calendar Quarters in the Calendar Year, of the Promotion Fee as set forth in Section 4.2. (b) Payment of Promotion Fee. Exact, within thirty (30) days after the end of each Calendar Quarter of the Term, shall deliver to Pfizer a consolidated report in the form of and containing the information necessary to confirm the calculation of the Promotion Fee for such Calendar Quarter, together with the underlying spreadsheets with respect to such Calendar Quarter. The Promotion Fee due with respect to such Calendar Quarter and reflected on the consolidated report shall be remitted at the time such report is made. 4.4 Taxes and Withholding. It is understood and agreed between the Parties that any payments made under this Agreement are exclusive of any value added or similar tax (VAT), and that no such VAT shall apply to the payments made under this Agreement. In the event any payments made pursuant to this Agreement become subject to withholding taxes under the laws or regulation of any jurisdiction, the Party making such payment shall deduct and withhold the amount of such taxes for the account of the payee to the extent required by Applicable Law and such amounts payable to the payee shall be reduced by the amount of taxes deducted and withheld. Any such withholding taxes required under Applicable Law to be paid or withheld shall be an expense of, and borne solely by, the payee. To the extent that the Party making a payment is required to deduct and withhold taxes on any payments under this Agreement, the Party making such payment shall pay the amounts of such taxes to the proper Governmental Authority in a timely manner and promptly transmit to the payee an official tax certificate or other evidence of such withholding sufficient to enable the payee to claim such payments of taxes. The payee shall provide any tax forms to the Party making such payment that may be reasonably necessary in order for such Party not to withhold tax or to withhold tax at a reduced rate under an applicable bilateral income tax treaty. The payee shall use commercially reasonable efforts to provide any such tax forms to the Party making the payment at least thirty (30) days prior to the due date for any payments for which the payee desires that the Party making the payment apply a reduced withholding rate. Each Party shall provide the other with reasonable assistance to enable the recovery, as permitted by Law, of withholding taxes, VAT, or similar obligations resulting from payments made under this Agreement, such recovery to be for the benefit of the Party bearing such withholding tax or VAT. Notwithstanding anything in this Agreement to the contrary, (a) if an action (including any assignment or sublicense of its rights or obligations under this Agreement, or any failure to comply with Applicable Law or filing or record retention requirements) by a Party leads to the imposition of withholding tax liability or VAT on the other Party that would not have been imposed in the absence of such action or in an increase in such liability above the liability that would have been imposed in the absence of such action, then the sum payable by that Party (in respect of which such deduction or withholding is required to be made) shall be increased to the extent necessary to ensure that the other Party 34

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receives a sum equal to the sum which it would have received had no such action occurred, (b) otherwise, the sum payable by that Party (in respect of which such deduction or withholding is required to be made) shall be made to the other Party after deduction of the amount required to be so deducted or withheld, which deducted or withheld amount shall be remitted in accordance with Applicable Law. 4.5 No Partnership Provision. It is expressly agreed that Pfizer and Exact shall be independent contractors and that the relationship between Pfizer and Exact shall not constitute a partnership, joint venture or agency. The Parties agree that the rights and obligations under this Agreement are not intended to constitute a partnership or similar arrangement that will require separate reporting for tax purposes consistent with the intent reflected in the foregoing sentence and agree that they shall not file any reports, documents or other item relating to taxes or state or acknowledge to any tax authority that such relationship is a partnership or similar arrangement unless required by Applicable Law. 4.6 Payments; Currency. All payments due by one Party to the other Party hereunder shall be paid by wire transfer in immediately available funds from the account or accounts of a Party and/or its Affiliates to an account or accounts of the receiving Party and/or its Affiliates designated in writing by the receiving Party. All amounts payable and calculations hereunder shall be in United States dollars. 4.7 Maintenance of Records; Audits. (a) Record Keeping. Each Party shall keep and shall cause its Affiliates to keep accurate books and accounts of record in connection with (i) its Marketing and Promotion of the Product, (ii) (with respect to Exact) performance of Product Laboratory Services, and (iii) its activities under this Agreement and any Annual Marketing Plan, in sufficient detail to permit accurate determination of all figures necessary for verification of (A) amounts to be paid hereunder and (B) compliance with the terms of this Agreement. Each Party shall, and shall cause its Affiliates to, maintain such records for a period of at least three (3) years after the end of the Calendar Year to which they pertain. (b) Financial Audits. (i) Audit Right. Upon thirty (30) days prior written notice from a Party (the Auditing Party), the other Party (the Audited Party) shall permit an independent certified public accounting firm of nationally recognized standing selected by the Auditing Party and reasonably acceptable to the Audited Party, to examine, at the Auditing Party's sole expense, the relevant books and records of the Audited Party and its Affiliates as may be reasonably necessary to verify the accuracy of the reports submitted by the Audited Party in accordance with Sections 3.4(d), 4.1(c) and 4.3(a) and the payment of Promotion Fees hereunder. An examination by the Auditing Party under this Section 4.6(b) shall occur not more than once in any Calendar Year and shall 35

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be limited to the pertinent books and records for any Calendar Year during the Term ending not more than twenty-four (24) months before the date of the request. The accounting firm shall be provided access to such books and records at the Audited Party's facility(ies) in the Territory where such books and records are normally kept and such examination shall be conducted during the Audited Party's normal business hours. The Audited Party may require the accounting firm to sign a standard non-disclosure agreement before providing the accounting firm access to the Audited Party's facilities or records. Upon completion of the audit, the accounting firm shall provide both Pfizer and Exact a written report disclosing whether the reports submitted by the Audited Party are correct or incorrect, whether the Promotion Fees paid during the audited period or Baseline M&P Expenses or Shared M&P Expenses incurred during the audited period are correct or incorrect, and, in each case, the specific details concerning any discrepancies. No other information shall be provided to the Auditing Party. The decision of the accounting firm will be final and unappealable absent manifest error. (ii) Underpayments/Overpayments. If such accounting firm concludes that additional Promotion Fees were due to Pfizer, Exact shall pay to Pfizer an amount equal to the actual Promotion Fee due minus the Promotion Fee paid within thirty (30) days of the date Exact receives such accountant's written report so concluding. If such accounting firm correctly concludes that Promotion Fees paid to Pfizer were in excess of the amount properly due, Pfizer shall pay or refund to Exact an amount equal to the Promotion Fee paid minus the actual Promotion Fee due within thirty (30) days of the date Exact receives such accountant's written report so concluding. (c) Compliance Audit. Upon thirty (30) days prior written notice from an Auditing Party, the Audited Party shall permit the Auditing Party's external auditors access to any relevant books documents, papers, and records of the Party involving any report delivered pursuant to Sections 3.2(d), 3.4(d) and 4.3(a) of this Agreement and the activities performed under this Agreement, if the other Party has credible evidence that the other Party violated terms of this Agreement, including with respect to Product Training under Section 3(e). An examination by a Party under this Section 4.6(c) shall (i) occur not more than once in any Calendar Year, (ii) be limited to the pertinent books and records for any Calendar Year during the Term ending not more than twenty-four (24) months before the date of the request and (iii) be at the sole expense of the Auditing Party. The external auditors of the Auditing Party shall be provided access to such books and records at the Audited Party's facility(ies) in the Territory where such books and records are normally kept and such examination shall be conducted during the Audited Party's normal business hours. The Audited Party may require any external auditors to sign a standard non-disclosure agreement before providing the accounting firm access to the Audited Party's facilities or records. 36

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(d) Confidentiality. All financial and other confidential information of the Audited Party which is subject to review under this Section 4.6 shall be deemed to be the Audited Party's Confidential Information and, subject to the provisions of Article 6 hereof, the Auditing Party shall not disclose such Confidential Information to any Third Party or use such Confidential Information for any purpose other than verifying compliance with this Agreement. 5. REPRESENTATIONS, WARRANTIES AND COVENANTS. 5.1 Mutual Representations and Warranties. Each of Exact and Pfizer hereby represents and warrants to the other Party as of the Effective Date that: (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization; (b) the execution, delivery and performance of this Agreement by such Party has been duly authorized by all requisite action under the provisions of its certificate of incorporation, bylaws and other organizational documents, and does not require any action or approval by any of its shareholders or other holders of its voting securities or voting interests that has not been taken; (c) it has the power and authority to execute and deliver this Agreement and to perform its obligations hereunder; (d) this Agreement has been duly executed by an appropriate representative of such Party and is a legal, valid and enforceable against such Party in accordance with its terms; (e) the execution, delivery and performance by such Party of this Agreement and its compliance with the terms and provisions hereof does not and will not conflict with or result in a breach of or default under (i) any oral or written agreement that binds such Party's operations or property, including any assignment, license agreement, loan agreement, guaranty or financing agreement, (ii) the provisions of such Party's certificate of incorporation, bylaws or other organizational documents, or (iii) any order, writ, injunction, decree or judgment of any court or Governmental Authority entered against such Party or by which any of such Party's operations or property are bound; (f) all material written information provided by each Party in the virtual data room maintained for the purposes of the proposed transactions under this Agreement is complete, truthful and accurate in all material respects; and (g) neither it, nor any of its Affiliates, nor, to such Party's knowledge, any of their respective Representatives has been debarred or suspended under 21 U.S.C. § 335(a) or (b), excluded from a federal health care program, debarred from federal contracting, or convicted of or pled nolo contendere to any felony, or to any federal or state legal violation (including misdemeanors) relating to medical devices or fraud (Debarred/Excluded). 37

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5.2 Representations and Warranties of Exact. Exact hereby represents and warrants to Pfizer as of the Effective Date that: (a) no consent is required from any Third Party for Exact to enter into, or to exercise its rights and perform its obligations under, this Agreement; (b) in connection with the development, manufacturing and Promotion of the Product, except as would not reasonably be expected to have a material adverse effect on the Promotion of the Product in the Territory, Exact has complied and will continue to comply in all material respects with Applicable Law, including the FD&C Act, the Anti-Kickback Statute (42 U.S.C. § 1320a-7b), Civil Monetary Penalty Statute (42 U.S.C. § 1320a-7a), the False Claims Act (31 U.S.C. § 3729 et seq.), comparable state statutes, the regulations promulgated under all such statutes, and the regulations issued by the FDA; (c) with respect to the development, manufacturing and Promotion of the Product, Exact has not taken and will not take any action directly or indirectly to offer, promise or pay, or authorize the offer or payment of, any money or anything of value in order to improperly or corruptly seek to influence any Government Official in order to gain an improper advantage; (d) in connection with Exact's manufacturing and Promotion of Product or Exact's performance of the Product Laboratory Service in the Territory or directly relating to the transactions contemplated by this Agreement, except as would not reasonably be expected to have a material adverse effect on the Promotion of the Product in the Territory, (i) no written claim, demand, suit, investigation or other legal action of any nature, civil, criminal, regulatory or otherwise, has been filed and received by Exact, and is pending in any court, arbitration or government agency proceeding nor, to the knowledge of Exact, has any claim, demand, suit, investigation or other legal action of any nature, civil, criminal, regulatory or otherwise been threatened in writing, to be filed against Exact in any court, arbitration or government agency proceeding; and (ii) there is no judgment or settlement against or owed by Exact; (e) Exact has not received written notice from any Third Party claiming that the manufacture, use, sale or importation by or on behalf of Exact of the Product in the Territory or the performance of any Product Laboratory Service by or on behalf of Exact (i) infringes any issued patent or intellectual property right of such Third Party in the Territory or (ii) will infringe any claim of any published patent application of such Third Party in the Territory when and if such claim issues; (f) to Exact's knowledge, the manufacture, use, sale or importation by or on behalf of Exact of the Product in the Territory or the performance of any Product Laboratory Service by or on behalf of Exact (i) does not infringe any issued patent or intellectual property right of any Third Party in the Territory 38

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or (ii) will not infringe any claim of any published patent application of any Third Party in the Territory when and if such claim issues; and (g) Exact is not presently engaged in any discussions with any Third Party with respect to the grant to any Third Party of and does not currently have any agreement with any Third Party to grant any right or license to make, use, import, offer for sale or sell any Product, in the Territory, in each case, which would constitute a grant of Ex-US Commercial Rights or OB/Gyn Commercial Rights. 5.3 Covenants. (a) Each Party hereby covenants to the other Party that, during the Term in the Territory: (i) it will immediately remove any Sales Representative from having any responsibilities relating to Promotion of the Product under this Agreement if required by Applicable Laws, including if such Party determines that such Sales Representative is Debarred/Excluded; (ii) it will promptly remove any Sales Representative from having any responsibilities relating to the Promotion of the Product under this Agreement if, following an investigation, it is determined that there has been a significant violation of any Applicable Laws, or the Party's Applicable Compliance/Review Policies by such Sales Representative; and (iii) it will not knowingly make any untrue or misleading statements or comments about the Product. (b) Pfizer hereby covenants to Exact that, during the Term in the Territory, it, its Affiliates and its Sales Representatives will not (i) Promote the Product outside of the Territory or the Co-Promote Field; or (ii) disparage or present in a negative light the Product in the performance of its obligations hereunder; provided that nothing herein shall be interpreted to preclude Pfizer from (A) describing any risks of a Product set forth in the Product Label or (B) making truthful statements about the Products to the extent required by Applicable Laws, in connection with any litigation or in response to any question, inquiry or request for information when required by legal process (e.g., a valid subpoena or other similar compulsion of law) or as part of a government investigation. (c) Exact hereby covenants that neither Exact nor its Affiliates shall sue Pfizer and its Affiliates under any Exact Patent Rights solely with respect to any activities carried out by Pfizer or its Affiliates under, and to the extent in compliance with, this Agreement, including its and their activities to Promote and Detail the Product in the Co-Promote Field in the Territory during the Term of this Agreement and in compliance with this Agreement. 39

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5.4 Compliance with Law and Ethical Business Practices. In addition to the other representations, warranties and covenants made by each Party under this Agreement, each Party hereby represents, warrants and covenants to the other Party that, during the Term in the Territory: (a) it is, and will remain during the Term, licensed, registered and/or qualified under Applicable Law to do business, and has obtained such licenses, consents, authorizations or completed such registration or made such notifications as may be necessary or required by Applicable Law to perform its obligations under this Agreement; (b) it will perform its obligations under this Agreement in material compliance with this Agreement and any applicable Annual Marketing Plan, its Applicable Compliance/Review Policies and Applicable Laws (including the FD&C Act, the Anti- Kickback Statute (42 U.S.C. § 1320a-7b), Civil Monetary Penalty Statute (42 U.S.C. § 1320a-7a), the False Claims Act (31 U.S.C. § 3729 et seq.), comparable state statutes, the regulations promulgated under all such statutes, and the regulations issued by the FDA); (c) in connection with the activities contemplated by this Agreement, to each Party's knowledge, it has been, and during the Term will be, in compliance with all applicable U.S. trade laws, including those related to, import controls, export controls, or economic sanctions; (d) it will ensure its own compliance with all Applicable Laws; (e) with respect to the Product and any payments or services provided under this Agreement, such Party has not taken, and during the Term will not take, any action, directly or indirectly, to offer, promise or pay, or authorize the offer or payment of, any money or anything of value in order to improperly or corruptly seek to influence any Government Official in order to gain an improper advantage, and has not accepted, and will not accept in the future such payment; (f) each Party hereby certifies that it has implemented and will maintain and enforce a compliance and ethics program designed to prevent and detect violations of Applicable Laws throughout its operations (including Affiliates) and the operations of its Representatives that have responsibility for Product, payments, or services provided under the Agreement, including by implementing policies and procedures setting out rules governing interactions with healthcare professionals and Government Officials; the engagement of third parties, and where appropriate, due diligence; and the investigation, documentation, and remediation of any allegations, findings, or reports related to a potential violation of its Applicable Compliance/Review Policies. Such compliance program shall include at a minimum, compliance officer, compliance committee(s), policies and procedures relating to (i) sales, medical, Promotional and Marketing activities for the Product, (ii) regular auditing and monitoring, (iii) training 40

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on sales, medical, Promotional and Marketing activities and the relevant legal requirements regarding such activities, (iv) methods to raise questions or concerns internally (e.g., via a hotline) without fear of retribution or retaliation, (v) processes for investigating and documenting any compliance concerns or allegations raised, findings or reports related to a potential violation of Applicable Laws, and (vi) taking remedial, corrective action and/or disciplinary action, as appropriate; (g) has implemented, and will maintain and enforce, a system of internal accounting controls designed to ensure the making and keeping of fair and accurate books, records, and accounts with respect to products, payments, or services provided under this Agreement, and regularly monitors and audits its business activities to ensure compliance with its Applicable Compliance/Review Policies and the adequacy of internal controls, and implements remediation in response to identified issues; (h) it will (A) maintain truthful and complete documentation supporting, in reasonable detail, the work performed and any expenses incurred in connection with this Agreement and any products, payments, or services provided under this Agreement and (B) maintain financial books and records that timely, fairly, accurately, and completely reflect all financial transactions, in accordance with all Applicable Laws (for example, invoices, reports, statements, books, and other records), and shall maintain such books and records during the Term of the Agreement and for three years after final payment has been made under the Agreement; (i) it provides, and during the Term will provide, training to Representatives providing services in connection with this Agreement; (j) every year of this Agreement that coincides with the term of the Corporate Integrity Agreement (CIA) entered into on May 23, 2018 between Pfizer and the United States Department of Health and Human Services, Office of Inspector General, Pfizer will send a letter to Exact that: (A) summarizes Pfizer's obligations under the CIA, (B) expresses Pfizer's commitment to full compliance with all federal health care program requirements, (C) describes the Pfizer Compliance Program and (D) includes a copy of (or includes a link to) Pfizer's code of conduct (referred to as the Blue Book). Within thirty (30) days of receipt of this letter, Exact shall respond in writing to the contact information included in Pfizer's letter that Exact shall: (1) make Pfizer's code of conduct and a description of the Pfizer Compliance Program available to its employees engaged in activities related to the Agreement or (2) represent to Pfizer that it has and enforces a substantially comparable code of conduct and compliance program for its employees who have responsibilities related to the Agreement; and (k) with respect to the Product and any payments made or services provided under this Agreement: 41

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(i) in the event that such Party receives a report of or otherwise becomes aware of a potential violation of its Applicable Compliance/Review Policies, the Party will perform an investigation in accordance with its established policies and procedures and will take all necessary and appropriate responsive, and corrective actions, including disciplinary actions (up to and including termination of any employee, contractor, agent, sub-contractor, customer, vendor or other Person that the Party believes was responsible); (ii) such Party has implemented, and will at all times during the Term maintain, adequate policies and procedures describing the materials and information that may be distributed or discussed by the Party's Sales Representatives related to the Product and the manner in which such Persons should handle unsolicited requests for information related to off-label uses of the Product, which policies and procedures shall be designed to ensure compliance with Applicable Laws and regulations; (iii) such Party regularly reviews its Applicable Compliance/Review Policies as part of its internal processes of improvement, and, from time to time, benchmarks them against the standards of the industry; (iv) such Party has implemented, and will at all times during the Term maintain, adequate systems, policies, and procedures to screen before hire and annually thereafter all prospective and current Representatives conducting activities with respect to the Product against (A) the List of Excluded Individuals/Entities compiled by the Office of the Inspector General in the Department of Health and Human Services and (B) the General Services Administration's List of Parties Excluded from Federal Programs, which policies and procedures require each Party's prospective and current Representatives conducting activities with respect to the Product to disclose immediately to the Party that such Representative is or may become Debarred/Excluded; (v) neither Party shall provide funding to the other Party for charitable donations to independent charities that provide financial assistance to patients, including sharing costs associated with such donations; provide information to the other Party concerning its own such donations; or seek to obtain information about such donations from the other Party. Each Party shall have appropriate policies and procedures to ensure that such donations comply with Applicable Law and current government guidance, including without limitation guidance issued by the U.S. Department of Health and Human Services, Office of Inspector General, and shall operate consistent with those policies and procedures. Unless a Party does not and will not make such donations during the Term of the Agreement, if a Party does not have appropriate policies and procedures in place on 42

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the Effective Date, the Party must implement such policies and procedures within thirty (30) days of the Effective Date. Either Party may request copies of such policies and procedures of the other Party in order to confirm compliance with the requirements of this Section; (vi) certifies that in connection with this Agreement, such Party's compensation system for its Representatives that perform any Marketing, Promotion, or sales activities related to the Product is designed to ensure that financial incentives do not inappropriately motivate such Representative to engage in improper or illegal Promotion, sales or Marketing of the Product (including off-label Promotion of the Product), and excludes from Incentive Compensation sales that may be attributable to the off-label use of the Product; and (vii) in connection with this Agreement, each Party's call planning system for its Sales Representatives that call upon health care professionals or health care institutions for any Promotional or sales activities related to the Product is designed to ensure that such Sales Representatives do not call upon health care professionals or health care institutions that are not likely to prescribe or use the Product for an on-label use. 5.5 Notice of Investigations. Each Party shall promptly notify the other Party in the event that it becomes subject to or aware of any FDA or other Governmental Authority inspection, investigation, or other inquiry or a FDA warning letter, untitled letter, or other material governmental notice or communication relating to the services or products covered by this Agreement promptly after the Party becomes aware of such inspection, investigation, inquiry, letter, notice, or communication, except to the extent that the disclosing Party's counsel reasonably believes that such disclosure to the other Party could violate Applicable Laws (including privacy laws) or have a significant adverse impact on the disclosing Party's legal position or defense (including the loss of attorney-client privilege) with respect to any such inspection, investigation or other inquiry. In the event that the Party determines that disclosure could violate Applicable Laws (including privacy laws) or have a significant adverse impact on the disclosing Party's legal position or defense (including the loss of attorney-client privilege), the Party shall promptly notify the other Party that it is exercising its right not to make such disclosure. 5.6 Representation by Legal Counsel. Each Party hereto represents that it has been represented by legal counsel in connection with this Agreement and acknowledges that it has participated in the drafting hereof. In interpreting and applying the terms and provisions of this Agreement, the Parties agree that no presumption shall exist or be implied against the Party which drafted such terms and provisions. 5.7 No Inconsistent Agreements. Neither Party shall enter into any oral or written agreement or arrangement that would be inconsistent with its obligations under this Agreement. 43

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5.8 Disclaimer. THE FOREGOING WARRANTIES OF EACH PARTY ARE IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF NONINFRINGEMENT, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE ALL OF WHICH ARE HEREBY SPECIFICALLY EXCLUDED AND DISCLAIMED. 6. INDEMNIFICATION; LIMITATION OF LIABILITY AND INSURANCE. 6.1 Indemnification. (a) Indemnification by Exact. Exact shall indemnify, defend and hold Pfizer, its Affiliates and their respective Representatives (the Pfizer Indemnitees) harmless from any claims, damages, actions, liabilities, losses, costs and expenses, including attorneys' fees incurred in defending against them, (hereinafter Claims) of a Third Party arising out of (A) the manufacture, Marketing, education, Promotion, importation or use of the Product or the performance of the Product Laboratory Service by Exact or its Representatives; (B) any breach by Exact of any of its representations, warranties or obligations under this Agreement; or (C) any negligent or wrongful act or omission of Exact; and (D) any alleged patent infringement, regardless of direct, contributory or inducement, by Pfizer, its Affiliates or their respective Representatives, as a result of the performance of Pfizer's obligations under this Agreement; except, in each case (A) - (D), to the extent such Claims arise out of any breach by any Pfizer Indemnitee of any of its obligations under this Agreement, or any negligent or wrongful act or omission of any Pfizer Indemnitee. (b) Indemnification by Pfizer. Pfizer shall indemnify, defend and hold Exact, its Affiliates and their respective Representatives (the Exact Indemnitees), harmless from any Claims of a Third Party, to the extent arising out of (i) any breach by Pfizer of any of its representations, warranties, or obligations under this Agreement or (ii) any negligent or wrongful act or omission of Pfizer, except to the extent such Claims arise out of any breach by any Exact Indemnitee of any of its obligations under this Agreement, or any negligent or wrongful act or omission of any Exact Indemnitee; provided that in no event shall Pfizer have any obligation to indemnify Exact for any product liability claim arising out of bodily injury or death arising from the use of the Product. (c) Procedure. (i) A Party believing that it is entitled to indemnification under Section 6.1 (an Indemnified Party) shall give prompt written notification to the other Party (the Indemnifying Party) of the commencement of any Claim by a Third Party for which indemnification may be sought or, if earlier, upon the assertion of any such Claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party Claim as provided 44

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in this Section 6.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually materially prejudiced as a result of such failure to give notice). Within thirty (30) days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such Claim with counsel reasonably satisfactory to the Indemnified Party. If a Party believes that a Claim presented to it for indemnification is one as to which the Party seeking indemnification is not entitled to indemnification under Section 6.1, it shall so notify the Party seeking indemnification. (ii) If the Indemnifying Party elects to assume the defense of such Claim, the Indemnified Party may participate in such defense at its own expense; provided that if the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such Claim, the Indemnifying Party shall be responsible for the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith. (iii) The Indemnifying Party shall keep the Indemnified Party advised of the status of such Claim and the defense thereof and shall consider recommendations made by the Indemnified Party with respect thereto. (iv) The Indemnified Party shall not agree to any settlement of such Claim without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not agree to any settlement of such Claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party or adversely affects the Indemnified Party without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld. 6.2 Insurance Requirements. Each Party agrees to obtain and maintain, during the Term and for five (5) years after the Term, commercial general liability insurance, including products liability insurance, with minimum A- AM Best rated insurance carriers, in each case with limits of not less than five million dollars ($5,000,000) per occurrence and in the aggregate. All deductibles/retentions will be the responsibility of the named insured. Pfizer and its Affiliates will be an additional insured on Exact's commercial general liability and products liability policies, and be provided with a waiver of subrogation. To the extent of its culpability, all coverages of Exact will be primary and non-contributing with any similar insurance carried by Pfizer. Notwithstanding any provision of this Section 6.2 to the contrary, Pfizer may meet its obligations under this Section 6.2 through self-insurance. 45

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Neither Party's insurance will be construed to create a limit of liability with respect to its indemnification obligations under this Section 6. 6.3 Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR (A) INDEMNIFICATION OBLIGATIONS OF A PARTY UNDER SECTION 6.1, (B) A BREACH OF SECTION 7 BY A PARTY OR (C) THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF A PARTY, NEITHER PARTY NOR ANY OF ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY OR ANY OF ITS AFFILIATES FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST REVENUES OR PENALTIES ARISING FROM OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. 7. CONFIDENTIALITY; PUBLICITY. 7.1 Confidentiality. Except to the extent expressly authorized by this Agreement or otherwise agreed in writing, the Parties agree that, for the term of this Agreement and for five (5) years thereafter, each Party (the Receiving Party), receiving any Confidential Information of the other Party (the Disclosing Party) hereunder shall keep such Confidential Information confidential and shall not publish or otherwise disclose or use such Confidential Information for any purpose other than as provided for in this Agreement. Confidential Information means any technical, scientific, regulatory, commercial, business or other information provided by or on behalf of the Disclosing Party to the Receiving Party pursuant to this Agreement or otherwise relating to or disclosed during any transaction contemplated hereby (including information disclosed prior to the Effective Date under a confidentiality agreement in contemplation of this Agreement), including information relating to the terms of this Agreement or the Product, and the scientific, regulatory or business affairs or other activities of either Party; provided that, Confidential Information shall not include any information that the Receiving Party can establish: (a) was already known to the Receiving Party (other than under an obligation of confidentiality), at the time of disclosure by the Disclosing Party and such Receiving Party has documentary evidence to that effect; (b) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the Receiving Party; (c) became generally available to the public or otherwise part of the public domain after its disclosure or development, as the case may be, and other than through any act or omission of a Party in breach of this confidentiality obligation; (d) was disclosed to that Party, other than under an obligation of confidentiality, by a Third Party who had no obligation, directly or indirectly, to the Disclosing Party, not to disclose such information to others; or 46

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(e) was independently discovered or developed by or on behalf of the Receiving Party without the use of the Confidential Information belonging to the other Party and the Receiving Party has documentary evidence to that effect. 7.2 Authorized Disclosure and Use. (a) Disclosure. Notwithstanding the foregoing Section 7.1, each Party may disclose to Third Parties Confidential Information belonging to the other Party to the extent such disclosure is reasonably necessary to: (i) prosecute or defend litigation, (ii) exercise or enforce rights hereunder; provided that such disclosure is covered by terms of confidentiality no less stringent than those set forth herein, and (iii) comply with inquires by a Governmental Authority or subpoena issued by a Governmental Authority or a court of competent jurisdiction. In the event a Party shall deem it necessary to disclose pursuant to this Section 7.2 Confidential Information belonging to the other Party, the Disclosing Party shall to the extent possible give reasonable advance notice of such disclosure to the other Party and take reasonable measures to ensure confidential treatment of such information. (b) Use. Notwithstanding the foregoing Section 7.1, during the Term, each Party shall have the right to use the other Party's Confidential Information in carrying out its respective responsibilities under this Agreement. 7.3 Certain Regulatory Filings. Either Party may disclose the terms of this Agreement to the extent required, in the reasonable opinion of such Party's legal counsel, to comply with Applicable Laws, including the rules and regulations promulgated by the United States Securities and Exchange Commission or by any stock exchange or regulatory body to which the Party is subject. Before disclosing this Agreement or any of the terms hereof pursuant to this Section 7.3, the Parties will consult with one another regarding the terms in this Agreement to be redacted in making any such disclosure. If a Party discloses this Agreement or any of the terms hereof in accordance with this Section 7.3, such Party agrees, at its own expense, to seek confidential treatment of portions of this Agreement or such terms, as may be reasonably requested by the other Party. 7.4 Public Announcements. The Parties shall agree upon a joint press release to announce the execution of this Agreement, a copy of which is attached as Exhibit 7.4.Neither Party shall issue any news release or other public announcement relating to this Agreement except as set forth in Exhibit 7.4, including any of its terms, or to the performance of either Party hereunder, without the prior written approval of the other Party; provided that nothing in this Agreement shall prohibit Exact from making required disclosures or filings required by Applicable Law or by the rules 47

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and regulations of any securities exchange. Once the text or substance of any announcement has been so approved, it may be repeated without further approval. 7.5 Use of Names. Except as described in this Agreement and as may be required by Applicable Law, neither Party shall distribute or have distributed any publicity or information which bears the name of the other without the prior written approval of the other. 8. TERM AND TERMINATION. 8.1 Term. This Agreement shall be effective as of the Effective Date and shall continue in effect through December 31, 2021 and any Renewal Term (the Term), unless terminated earlier as set forth herein. 8.2 Renewal. This Agreement may be renewed for an additional one year term (Renewal Term) upon mutual written agreement of the Parties. Ninety (90) days prior to the beginning of the Renewal Term, or as far in advance as practicable if the Parties agree to a Renewal Term less than ninety (90) days prior the commencement of such Renewal Term, the Parties shall agree to a Baseline Laboratory Service Revenue, Baseline M&P Expenses and Shared M&P Expenses for the Renewal Term. All other terms of this Agreement shall remain the same through the Renewal Term. 8.3 Termination for Cause. This Agreement may be terminated at any time by either Party effective: (a) upon thirty (30) days prior written notice if the other Party fails to make the required investments pursuant to Sections 3.5 or 3.6, as applicable, or pay any amount properly due under this Agreement; provided that neither Party may terminate if the failure of the other Party to meet the investment requirements under Sections 3.5 or 3.6, as applicable, is de minimis or not material; provided, further, that any such termination shall only become effective if the allegedly breaching Party fails to remedy or cure such breach or default prior to the end of such thirty (30) day period. If, prior to the end of such thirty (30) day period, the allegedly breaching Party remedies or cures such breach or default to the reasonable satisfaction of the non-breaching Party, this Agreement shall remain in full force and effect; (b) upon sixty (60) days prior written notice if the other Party materially breaches its representations, warranties or obligations under this Agreement; provided, however, that any such termination shall only become effective if the allegedly breaching Party fails to remedy or cure such breach or default prior to the end of such sixty (60) day period. If, prior to the end of such sixty (60) day period, the allegedly breaching Party remedies or cures such breach or default to the reasonable satisfaction of the non-breaching Party, this Agreement shall remain in full force and effect; 48

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(c) immediately upon the filing or institution of bankruptcy, reorganization, liquidation or receivership proceedings, or upon an assignment of a substantial portion of the assets for the benefit of creditors by the other Party; provided, however, that in the case of any involuntary bankruptcy proceeding such right to terminate shall only become effective if the Party consents to the involuntary bankruptcy; or (d) immediately upon notice to the other Party, if such Party (the Violating Party) is convicted of violating any Applicable Law, including applicable anti-corruption laws, bribery and corruption of public officials as well as private persons and entities, in connection with its activities under this Agreement and such violation materially adversely affects the ability of either Party to perform its obligations under this Agreement. The Violating Party shall be liable for damages or remedies as provided by law. 8.4 Termination Without Cause. After the date that is eighteen (18) months after the Effective Date, either Party may terminate this Agreement upon six (6) months prior written notice to the other Party. 8.5 Mutual Termination. This Agreement may be terminated at any time by mutual written consent of the Parties. 8.6 Termination for Change of Control. This Agreement may be terminated by either Party upon six (6) months written notice following a Change of Control of Exact; provided that such notice is given within thirty (30) days of the consummation of such Change of Control. 8.7 Royalty Upon Expiration. After the expiration of the Term or termination pursuant to Section 8.4 by either Party or Section 8.6 by Exact, based on cumulative Incremental Laboratory Services Revenue achieved during the Term or up to the termination date, Exact agrees to pay Pfizer the applicable royalty payment set forth below for twelve (12) consecutive Calendar Quarters following the expiration of the Term (the Tail Period); provided, however, the Tail Period shall be reduced to the number of full Calendar Quarters completed during the Term if less than twelve (12) Calendar Quarters if either Party terminates the Agreement without cause pursuant to Section 8.4 or Exact terminates as a result of a Change of Control pursuant to Section 8.6. Such royalty payment shall be payable to Pfizer within thirty (30) days of the end of each Calendar Quarter. Royalty payments shall be determined by multiplying the Laboratory Services Revenue and the applicable royalty rate from the chart below. Cumulative Incremental Laboratory Services Revenue during the Term Applicable Royalty Rate If < $200 million 0% If > $200 million and < $400 million 1% If > $400 million and < $600 million 2% If > $600 million 3% 49

Source: EXACT SCIENCES CORP, 8-K, 8/22/2018





For example, if the cumulative Incremental Laboratory Services Revenue achieved during the Term is $500 million, the applicable royalty rate is 2%. The royalty payable by Exact to Pfizer at the end of each Calendar Quarter after the Term is 2% of Laboratory Service Revenues for the applicable Calendar Quarter. 8.8 Consequences of Termination. (a) In the event of any termination under this Agreement, (i) Pfizer shall have no obligation to invest Shared M&P Expenses pursuant to Section 3.5 as of the effective date of the termination (except as set forth below), (ii) Pfizer shall cease to make any commitments under Section 3.2(d) as of the date of notice of termination, unless Exact notifies Pfizer pursuant to Section 8.8(b) and (iii) neither Party shall have any obligation to reimburse the other Party for any expenses for activities conducted after the effective date of such termination unless such expenses were incurred prior to termination. Notwithstanding the above, Exact agrees to pay any financial commitment made by Pfizer pursuant to Section 3.2(d) and Exhibit 3.2(d) to Third Parties following the effective date of termination; provided that such amounts conform with the then-current Annual Marketing Plan, including the budget. (b) Exact shall use commercially reasonable efforts to provide six (6) month notice prior to the expiry of the Term, or in the case of termination by Pfizer under Section 8.4, within the applicable notice period in advance of the effective date of such termination, that Exact intends for Pfizer to continue providing Advertising services for the Product pursuant to Section 3.2(d). Thereafter, the Parties will use good faith efforts to agree to the Advertising services that will be provided by Pfizer during the Tail Period in accordance with Section 3.2(d) and Exhibit 8.8(b). For clarity, Pfizer's obligation to provide Advertising services during the Tail Period is limited to the expiry of the Term or termination by Pfizer pursuant to Section 8.4, or termination by Exact pursuant to Section 8.3. (c) In the event Exact terminates this Agreement for cause pursuant to Section 8.3 or Pfizer terminates this Agreement without cause pursuant to Section 8.4, Exact shall not be obligated to pay Pfizer a supplemental Promotion Fee pursuant to Section 4.2(c) for the Calendar Year, or any portion of such Calendar Year in which such termination occurs. 8.9 Survival of Certain Obligations. Expiration or termination of the Agreement shall not relieve the Parties of any obligation accruing before such expiration or termination, and the provisions of Sections 1 (Definitions), 2.5 (Alliance Managers), 3.2(d) (Advertising), 3.2(e)(iii) (Return of Training Materials), 3.2(j) (Customer Service Activities; Safety Reporting), 4.4 (Taxes and Withholding); 4.7 (Maintenance of Records; Audits), 6 (Indemnification; Limitation of Liability; Insurance), 7 (Confidentiality; Publicity); 8 (Term and Termination) and 9 (Miscellaneous) inclusive, shall survive the expiration of the Agreement. Any expiration or early termination of this Agreement shall be without prejudice to the 50

Source: EXACT SCIENCES CORP, 8-K, 8/22/2018





rights of either Party against the other accrued or accruing under this Agreement before termination. 9. MISCELLANEOUS. 9.1 Interpretation. Except where the context expressly requires otherwise, (a) the use of any gender herein will be deemed to encompass references to either or both genders, and the use of the singular will be deemed to include the plural (and vice versa), (b) the words include, includes and including will be deemed to be followed by the phrase without limitation, (c) the word will will be construed to have the same meaning and effect as the word shall, (d) any reference herein to any Person will be construed to include the Person's successors and assigns, (e) the words herein, hereof and hereunder, and words of similar import, will be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (f) all references herein to Sections or Exhibits will be construed to refer to Sections or Exhibits of this Agreement, and references to this Agreement include all Exhibits hereto, (g) the word notice means notice in writing (whether or not specifically stated) and will include notices, consents, approvals and other written communications contemplated under this Agreement, (h) provisions that require a Party, the Parties or any committee hereunder to agree, consent or approve or the like will require that such agreement, consent or approval be specific and in writing, whether by written agreement, letter, approved minutes or otherwise (but excluding text and instant messaging), (i) references to any specific law, rule or regulation, or article, section or other division thereof, will be deemed to include any amendments thereto or any replacement or successor law, rule or regulation thereof, and (j) the term or will be interpreted in the inclusive sense commonly associated with the term and/or. 9.2 Assignment. This Agreement may not be assigned or otherwise transferred, nor may any right or obligation hereunder be assigned or transferred, by either Party without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may, without consent of the other Party, assign this Agreement and its rights and obligations hereunder in whole or in part to an Affiliate of such Party, or in whole to its successor in interest in connection with the sale of all or substantially all of its stock or its assets to which this Agreement relates, or in connection with a merger, acquisition or similar transaction. Any attempted assignment not in accordance with the foregoing shall be null and void and of no legal effect. Any permitted assignee shall assume all assigned obligations of its assignor under this Agreement. The terms and conditions of this Agreement shall be binding upon, and shall inure to the benefit of, the Parties and their respected successors and permitted assigns. 9.3 Further Actions. Each Party agrees to execute, acknowledge and deliver such further instruments, and to do all such other acts, as may be necessary or appropriate in order to carry out the purposes and intent of the Agreement. 9.4 Force Majeure. Each Party will be excused from the performance of its obligations under this Agreement to the extent that such performance is prevented by force 51

Source: EXACT SCIENCES CORP, 8-K, 8/22/2018





majeure (defined below) and the nonperforming Party promptly provides notice of the prevention to the other Party. Such excuse will be continued so long as the condition constituting force majeure continues and the nonperforming Party takes commercially reasonable efforts to remove the condition; provided that if any delay in performance due to force majeure continues for a period of six (6) months or more, then the other Party will have the right to terminate this Agreement immediately upon written notice. For purposes of this Agreement, force majeure will include conditions beyond the control of the Parties, including an act of God, voluntary or involuntary compliance with any regulation, law or order of any government, war, act of terror, civil commotion, labor strike or lock-out, epidemic, failure or default of public utilities or common carriers, destruction of production facilities or materials by fire, earthquake, storm or like catastrophe. 9.5 Notices. All notices and other communications required or permitted hereunder (including any notice of force majeure, breach, termination, change of address, etc.) shall be in writing and will be deemed given (a) upon receipt if delivered personally or by facsimile transmission (receipt verified), (b) five (5) days after being deposited in the mail if mailed by registered or certified mail (return receipt requested) postage prepaid or (c) on the next Business Day if sent by overnight delivery using a nationally recognized express courier service and specifying next Business Day delivery (receipt verified), and will be sent to the Parties at the following addresses or facsimile numbers, as applicable, (or at such other address or facsimile number for a Party as will be specified by like notice; provided, however, that notices of a change of address will be effective only upon receipt thereof): All correspondence to Pfizer shall be addressed as follows: Pfizer Inc. 235 East 42nd Street New York, New York 10017 Attn: General Counsel Fax: (212) 309-0874 With a copy to: Pfizer Inc. 235 East 42  Street New York, New York 10017 Attn: Regional President, North America, Internal Medicine And Pfizer Inc. 235 East 42  Street New York, New York 10017 Attn: Chief Counsel, Internal Medicine All correspondence to Exact shall be addressed as follows: 52

nd

nd

Source: EXACT SCIENCES CORP, 8-K, 8/22/2018





Exact Sciences Corporation 441 Charmany Drive Madison, Wisconsin 53719 Attn: General Counsel Fax: (608) 284-5701 With a copy to: Exact Sciences Corporation 441 Charmany Drive Madison, Wisconsin 53719 Attn: CEO 9.6 Amendment. No amendment, modification or supplement of any provision of this Agreement shall be valid or effective unless made in a writing signed by a duly authorized officer of each Party and delivered to each of the Parties. 9.7 Waiver. No provision of the Agreement shall be waived by any act, omission or knowledge of a Party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving Party. The failure of either Party to require the performance of any term of this Agreement, or the waiver of either Party of any breach of this Agreement, shall not prevent a subsequent exercise or enforcement of such terms or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement. 9.8 Severability. If any clause or portion thereof in this Agreement is for any reason held to be invalid, illegal or unenforceable, the same shall not affect any other portion of this Agreement, as it is the intent of the Parties that this Agreement shall be construed in such fashion as to maintain its existence, validity and enforceability to the greatest extent possible. In any such event, this Agreement shall be construed as if such clause of portion thereof had never been contained in this Agreement, and there shall be deemed substituted therefor such provision as will most nearly carry out the intent of the Parties as expressed in this Agreement to the fullest extent permitted by Applicable Law. 9.9 Descriptive Headings. The descriptive headings of this Agreement are for convenience and reference purposes only, and shall be of no force or effect in construing or interpreting any of the provisions of this Agreement. 9.10 Governing Law. This Agreement shall be governed by and interpreted in accordance with the substantive laws of the State of New York, without regard to conflict of law principles thereof. 9.11 Dispute Resolution. The Parties recognize that a bona fide dispute as to certain matters may from time to time arise during the term of this Agreement that relate to any Party's rights or obligations hereunder. In the event of the occurrence of any dispute arising out of or relating to this Agreement (other than a Disputed JSC 53

Source: EXACT SCIENCES CORP, 8-K, 8/22/2018





Matter, which shall be resolved as provided in Section 2.1, a Disputed JOC Matter, which shall be resolved as provided in Section 2.2 and Disputed JRC Matter, which shall be resolved as provided in Section 2.3), including any question regarding its existence, validity or termination (a Dispute), any Party may, by written notice to the other, have such Dispute referred to their respective Senior Officer or such Senior Officer's designee, for attempted resolution by good faith negotiations within thirty (30) days after such notice is received. Any negotiations regarding a Dispute are confidential and shall be treated as compromise and settlement negotiations for purposes of the U.S. Federal Rules of Evidence and any similar rules of evidence. 9.12 Entire Agreement of the Parties. This Agreement constitutes and contains the complete, final and exclusive understanding and agreement of the Parties and cancels and supersedes any and all prior negotiations, correspondence, understandings and agreements, whether oral or written, among the Parties respecting the subject matter hereof and thereof. 9.13 Independent Contractors. Both Parties are independent contractors under this Agreement. Nothing herein contained shall be deemed to create an employment, agency, joint venture or partnership relationship between the Parties hereto or any of their agents or employees, or any other legal arrangement that would impose liability upon one Party for the act or failure to act of the other Party. Neither Party shall have any express or implied power to enter into any contracts or commitments or to incur any liabilities in the name of, or on behalf of, the other Party, or to bind the other Party in any respect whatsoever. Neither Party shall have any responsibility for the hiring, termination, compensation or benefits of the other Party's employees. 9.14 No Legal Advice. Each Party acknowledges and agrees that the other Party and the other Party's attorneys are not representing such Party during the course of or in connection with any activities under this Agreement and that, unless otherwise expressly agreed in writing by the other Party's attorneys, any opinions expressed by the other Party or the other Party's attorneys with respect to any marketing or promotional materials or the activities of either Party under this Agreement shall not be considered to be legal advice regardless of whether or not related to a legal or regulatory matter. 9.15 Counterparts. This Agreement may be executed in two (2) counterparts, each of which will be an original and both of which will constitute together the same document. Counterparts may be signed and delivered by facsimile or digital file, each of which will be binding when received by the applicable Party. (remainder of page intentionally left blank) 54

Source: EXACT SCIENCES CORP, 8-K, 8/22/2018





IN WITNESS WHEREOF, duly authorized representatives of the Parties have duly executed this Agreement to be effective as of the Effective Date. PFIZER INC. EXACT SCIENCES CORPORATION By /s/ Michael Gladstone By /s/ Kevin Conroy Name: Michael Gladstone Name: Kevin Conroy Title: Global President, Internal Medicine Title: Chairman & Chief Executive Officer Pfizer Innovative Health Signature Page

Source: EXACT SCIENCES CORP, 8-K, 8/22/2018 
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?
answer:
132575


question:
FRANCHISE AGREEMENT   HOMEWOOD SUITES BY HILTON STRATFORD   (Stratford, Connecticut)









  TABLE OF CONTENTS   1.0 DEFINITIONS 1       2.0 GRANT OF LICENSE 6           2.1 Non-Exclusive License 6   2.2 Reserved Rights 7         3.0 TERM 7       4.0 OUR RESPONSIBILITIES 7           4.1 Training 7   4.2 Reservation Service 7   4.3 Consultation 7   4.4 Marketing 7   4.5 Inspections/Compliance Assistance 8   4.6 Manual 8   4.7 Equipment and Supplies 9         5.0 YOUR RESPONSIBILITIES 9           5.1 Operational and Other Requirements 9         6.0 HOTEL WORK 11           6.1 Necessary Consents 11   6.2 Initial Hotel Work 12   6.3 Commencement and Completion of the Hotel Work 12   6.4 Opening the Hotel Under This Agreement 12   6.5 Performance of Agreement 13   6.6 Hotel Refurbishment and Room Addition 13         7.0 STAFF AND MANAGEMENT OF THE HOTEL 14       8.0 PAYMENT OF FEES 14           8.1 Monthly Fees 14   8.2 Calculation and Payment of Fees 14   8.3 Other Fees 15   8.4 Taxes 15   8.5 Application of Fees 15         9.0 PROPRIETARY RIGHTS 15           9.1 Our Proprietary Rights 15   9.2 Trade Name, Use of the Marks 15   9.3 Use of Trade Name and Marks 16   9.4 Trademark Disputes 16   9.5 Web Sites 16   9.6 Covenant 17         10.0 REPORTS, RECORDS, AUDITS, AND PRIVACY 17           10.1 Reports 17   10.2 Maintenance of Records 17   10.3 Audit 17   10.4 Ownership of Information 18   10.5 Privacy and Data Protection 18

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  11.0 CONDEMNATION AND CASUALTY 18         11.1 Condemnation 18   11.2 Casualty 18   11.3 No Extensions of Term 19         12.0 NOTICE OF INTENT TO MARKET 19       13.0 TRANSFERS 19           13.1 Our Transfer 19   13.2 Your Transfer 19         14.0 TERMINATION 22           14.1 Termination with Opportunity to Cure 22   14.2 Immediate Termination by Us 22   14.3 Suspension Interim Remedies 23   14.4 Liquidated Damages on Termination 24   14.5 Actual Damages Under Special Circumstances 24   14.6 Your Obligations on Termination or Expiration 24         15.0 INDEMNITY 25       16.0 RELATIONSHIP OF THE PARTIES 26           16.1 No Agency Relationship 26   16.2 Notices to Public Concerning Your Independent Status 26         17.0 MISCELLANEOUS 26           17.1 Severability and Interpretation 26   17.2 Governing Law, Jurisdiction and Venue 27   17.3 Exclusive Benefit 27   17.4 Entire Agreement 27   17.5 Amendment and Waiver 27   17.6 Consent; Business Judgment 27   17.7 Notices 28   17.8 General Release 28   17.9 Remedies Cumulative 28   17.10 Economic Conditions Not a Defense 28   17.11 Representations and Warranties 28   17.12 Counterparts 29   17.13 Sanctioned Persons and Anti-bribery Representations and Warranties 29   17.14 Attorneys' Fees and Costs 30   17.15 Interest 30   17.16 Successors and Assigns 30   17.17 Our Delegation of Rights and Responsibility 30         18.0 WAIVER OF JURY TRIAL AND PUNITIVE DAMAGES 30         19.0 INTENTIONALLY DELETED 31         ADDENDUM TO FRANCHISE AGREEMENT       NEW YORK ADDENDUM TO FRANCHISE AGREEMENT       EXHIBIT A PRODUCT IMPROVEMENT PLAN

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  FRANCHISE AGREEMENT   This Franchise Agreement between Homewood Suites Franchise LLC (we, us, our or Franchisor) and the Franchisee (you, your or Franchisee) set forth in the Addendum attached to this Agreement, is dated as of the Effective Date. We and you may collectively be referred to as the Parties.   INTRODUCTION   We are a subsidiary of Hilton Worldwide. Hilton Worldwide and its Affiliates own, license, lease, operate, manage and provide various services for the Network. We are authorized to grant licenses for selected, first-class, independently owned or leased hotel properties, to operate under the Brand. You have expressed a desire to enter into this Agreement with us to obtain a license to use the Brand in the operation of a hotel at the address or location described in the Addendum.   NOW, THEREFORE, in consideration of the premises and the undertakings and commitments of each party to the other party in this Agreement, the Parties agree as follows:   1.0 DEFINITIONS   The following capitalized terms will have the meanings set forth after each term:   Affiliate means any natural person or firm, corporation, partnership, limited liability company, association, trust or other entity which, directly or indirectly, controls, is controlled by, or is under common Control with, the subject entity.   Agreement means this Franchise Agreement, including any exhibits, attachments and addenda.   Anti-Corruption Laws means all applicable anti-corruption, anti-bribery, anti-money laundering, books and records, and internal controls laws of the United States and the United Kingdom, including the United States Foreign Corrupt Practices Act and the United Kingdom Bribery Act of 2010.   Brand means the brand name set forth in the Addendum.   Change of Ownership Application means the application that is submitted to us by you or the Transferee for a new franchise agreement in connection with a Change of Ownership Transfer.   Change of Ownership Transfer means any proposed Transfer that results in a change of Control of Franchisee, the Hotel, or the Hotel Site and is not otherwise permitted by this Agreement, all as set out in Subsection 13.2.3.   Competing Brand means a hotel brand or trade name that, in our sole business judgment, competes with the System, or any System Hotel or Network Hotel.   Competitor means any individual or entity that, at any time during the Term, whether directly or through an Affiliate, owns in whole or in part, or is the licensor or franchisor of a Competing Brand, irrespective of the number of hotels owned, licensed or franchised under such Competing Brand name. A Competitor does not include an individual or entity that: (i) is a franchisee of a Competing Brand; (ii) manages a Competing Brand hotel, so long as the individual or entity is not the exclusive manager of the Competing Brand; or (iii) owns a minority interest in a Competing Brand, so long as neither that individual or entity nor any of its Affiliates is an officer, director, or employee of the Competing Brand, provides services (including as a consultant) to the Competing Brand, or exercises, or has the right to exercise, Control over the business decisions of the Competing Brand.

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  Construction Commencement Date means the date set out in the Addendum, if applicable, by which you must commence construction of the Hotel. For the Hotel to be considered under construction, you must have begun to pour concrete foundations for the Hotel or otherwise satisfied any site-specific criteria for under construction set out in the Addendum.   Construction Work means all necessary action for the development, construction, renovation, furnishing, equipping, acquisition of supplies and implementation of the Plans and Designs for the Hotel.   Construction Work Completion Date means the date set out in the Addendum, if applicable, by which you must complete construction of the Hotel.   Control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, or of the power to veto major policy decisions of an entity, whether through the ownership of voting securities, by contract, or otherwise.   Controlling Affiliate means an Affiliate that directly or indirectly Controls the Hotel and/or Controls the entity that Controls the Hotel.   Designs means your plans, layouts, specifications, drawings and designs for the proposed furnishings, fixtures, equipment, signs and decor of the Hotel that use and incorporate the Standards.   Effective Date means the date set out in the Addendum on which this Agreement becomes effective. Entities means our present or future Affiliates and direct or indirect owners.   Equity Interest means any direct or indirect legal or beneficial interest in the Franchisee, the Hotel and/or the Hotel Site.   Equity Owner means the direct or indirect owner of an Equity Interest, Expiration Date has the meaning set forth in Section 3.   Force Majeure means an event causing a delay in our or your performance that is not the fault of or within the reasonable control of the party claiming Force Majeure. Force Majeure includes fire, floods, natural disasters, Acts of God, war, civil commotion, terrorist acts, any governmental act or regulation beyond such party's reasonable control. Force Majeure does not include the Franchisee's financial inability to perform, inability to obtain financing, inability to obtain permits or any other similar events unique to the Franchisee or the Hotel or to general economic downturn or conditions.   General Manager has the meaning set forth in Subsection 7.1.   Government or Government Entity means: (i) any agency, instrumentality, subdivision or other body of any national, regional, local or other government; (ii) any commercial or similar entities owned or controlled by such government, including any state-owned and state-operated companies; (iii) any political party; and (iv) any public international organization.   Government Official means the following: (i) officers and employees of any national, regional, local or other Government; (ii) officers and employees of companies in which a Government owns an interest; (iii) any private person acting in an official capacity for or on behalf of any Government or Governmental Entity (such as a consultant retained by a government agency); (iv) candidates for political office at any level; (v) political parties and their officials; (vi) officers, employees, or official representatives of public (quasi-governmental) international organizations (such as the United Nations, World Bank, or International Monetary Fund).   Gross Receipts Tax means any gross receipts, sales, use, excise, value added or any similar tax.

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  Gross Rooms Revenue means all revenues derived from the sale or rental of Guest Rooms (both transient and permanent) of the Hotel, including revenue derived from the redemption of points or rewards under the loyalty programs in which the Hotel participates, amounts attributable to breakfast (where the guest room rate includes breakfast), and guaranteed no-show revenue and credit transactions, whether or not collected, at the actual rates charged, less allowances for any Guest Room rebates and overcharges, and will not include taxes collected directly from patrons or guests. Group booking rebates, if any, paid by you or on your behalf to third-party groups for group stays must be included in, and not deducted from, the calculation of Gross Rooms Revenue.   Guarantor means the person or entity that guaranties your obligations under this Agreement or any of Your Agreements.   Guest Rooms means each rentable unit in the Hotel generally used for overnight guest accommodations, the entrance to which is controlled by the same key, provided that adjacent rooms with connecting doors that can be locked and rented as separate units are considered separate Guest Rooms. The initial number of approved Guest Rooms is set forth in the Addendum.   Hilton Worldwide means Hilton Worldwide Holdings, Inc., a Delaware corporation.   Hotel means the property you will operate under this Agreement and includes all structures, facilities, appurtenances, furniture, fixtures, equipment, and entry, exit, parking and other areas located on the Hotel Site we have approved for your business or located on any land we approve in the future for additions, signs, parking or other facilities.   Hotel Site means the real property on which the Hotel is located or to be located, as approved by us. Hotel Work means Construction Work and/or Renovation Work, as the case may be.   Improper Payment means: (a) any payment, offer, gift or promise to pay or authorization of the payment or transfer of other things of value, including without limitation any portion of the compensation, fees or reimbursements received hereunder or the provision of any service, gift or entertainment, .directly or indirectly to (i) a Government Official; (ii) any director, officer, employee or commercial partner of a Party or its Affiliates; or, (iii) any other person at the suggestion, request or direction or for the benefit of any of the above-described persons and entities, for purposes of obtaining or influencing official actions or decisions or securing any improper advantage in order to obtain, retain or direct business; (b) payments made and expenses incurred in connection with performance of obligations under this Agreement that are not made and recorded with sufficient accuracy, detail, and control to meet the standards in applicable Anti-Corruption Laws; or, (c) any other transaction in violation of applicable Anti-Corruption Laws.   Indemnified Parties means us and the Entities and our and their respective predecessors, successors and assigns, and the members, officers, directors, employees, managers, and agents.   Information means all information we obtain from you or about the Hotel or its guests or prospective guests under this Agreement or under any agreement ancillary to this Agreement, including agreements relating to the computerized reservation, revenue management, property management, and other systems we provide or require, or otherwise related to the Hotel. Information includes, but is not limited to, Operational Information, Proprietary Information, and Personal Information.   Interim Remedy has the meaning set forth in Subsection 14.3.   Laws means all public laws, statutes, ordinances, orders, rules, regulations, permits, licenses, certificates, authorizations, directions and requirements of all Governments and Governmental Entities having jurisdiction over the Hotel, Hotel Site or over Franchisee to operate the Hotel, which, now or hereafter, may apply to the construction, renovation, completion, equipping, opening and operation of the Hotel, including Title ill of the Americans with Disabilities Act, 42 U.S.C. § 12181, et seq., and 28 C.F.R. Part 36.

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  License has the meaning set forth in Subsection 2.1.   Liquidated Damages has the meaning set forth in Subsections 6.4.4 and 14.4.   Management Company has the meaning set forth in Subsection 7.1.   Manual means all written compilations of the Standards. The Manual may take the form of one or more of the following: one or more looseleaf or bound volumes; bulletins; notices; videos; CD-ROMS and/or other electronic media; online postings; e-mail and/or electronic communications; facsimiles; or any other medium capable of conveying the Manual's contents.   Marks means the Brand and all other service marks, copyrights, trademarks, trade dress, logos, insignia, emblems, symbols and designs (whether registered or unregistered), slogans, distinguishing characteristics, and trade names used in the System.   Monthly Fees means, collectively, the Monthly Program Fee and the Monthly Royalty Fee, each of which is set forth in the Addendum.   Monthly Program Fee means the fee we require from you in Subsection 8.1, which is set forth in the Addendum.   Monthly Royalty Fee means the fee we require from you in Subsection 8.1, which is set forth in the Addendum.   Network means the hotels, inns, conference centers, timeshare properties and other operations that Hilton Worldwide and its subsidiaries own, license, lease, operate or manage now or in the future.   Network Hotel means any hotel, inn, conference center, timeshare property or other similar facility within the Network.   Opening Date means the day on which we first authorize the opening of the facilities, Guest Rooms or services of the Hotel to the general public under the Brand.   Operational Information means all information concerning the Monthly Fees, other revenues generated at the Hotel, room occupancy rates, reservation data and other financial and non-financial information we require.   Other Business(es) means any business activity we or the Entities engage in, other than the licensing of the Hotel.   Other Hotels means any hotel, inn, lodging facility, conference center or other similar business, other than a System Hotel or a Network Hotel.   Permitted Transfer means any Transfer by you or your Equity Owners as specified in Section 13.2 of this Agreement.   Person(s) means a natural person or entity.   Personal Information means any information that: (i) can be used (alone or when used in combination with other information within your control) to identify, locate or contact an individual; or (ii) pertains in any way to an identified or identifiable individual. Personal Information can be in any media or format, including computerized or electronic records as well as paper-based files.

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  PIP means product improvement plan.   PIP Fee means the fee we charge for creating a PIP as specified in Section 8.3.   Plans means your plans, layouts, specifications, and drawings for the Hotel that use and incorporate the Standards.   Principal Mark is the Mark identified as the Principal Mark in the Addendum.   Privacy Laws means any international, national, federal, provincial, state, or local law, code, rule or regulation that regulates the processing of Personal Information in any way, including data protection laws, laws regulating marketing communications and/or electronic communications, information security regulations and security breach notification rules.   Proprietary Information means all information or materials concerning the methods, techniques, plans, specifications, procedures, data, systems and knowledge of and experience in the development, operation, marketing and licensing of the System, including the Standards and the Manuals, whether developed by us, you, or a third party.   Publicly Traded Equity Interest means any Equity Interest that is traded on any securities exchange or is quoted in any publication or electronic reporting service maintained by the National Association of Securities Dealers, Inc., or any of its successors or (ii) any Equity Interests sold in any offering under the Securities Act of 1933, as amended, so long as such Equity Interests are beneficially held by no lesi than one hundred (100) unrelated persons or entities by the end of 2014 and thereafter.   Quality Assurance Re-Evaluation Fee has the meaning set forth in Subsection 4.5.   Renovation Commencement Date means the date set out in the Addendum, if applicable, by which you must commence Renovation Work.   Renovation Work means the renovation and/or construction work, including purchasing and/or leasing and installation of all fixtures, equipment, furnishings, furniture, signs, computer terminals and related equipment, supplies and other items that would be required of a new System Hotel under the Manual, and any other equipment, furnishings and supplies that we may require for you to operate the Hotel as set out in any PIP applicable to the Hotel.   Renovation Work Completion Date means the date set out in the Addendum, if applicable, by which you must complete Renovation Work.   Reports mean daily, monthly, quarterly and annual operating statements, profit and loss statements, balance sheets, and other financial and non- financial reports we require.   Reservation Service means the reservation service we designate in the Standards for use by System Hotels.   Room Addition Fee means a sum equal to the then-current Room Addition Fee charged for new System Hotels multiplied by the number of Additional Guest Rooms you wish to add to the Hotel in accordance with Subsection 6.6.3.

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  Sanctioned Person means any person or entity (including financial institutions) who is, or is owned or controlled by, or acting on behalf of any of the foregoing: (a) the Government of any country subject to comprehensive U.S. sanctions in force and which currently include the Government of Cuba, Iran, North Korea, Sudan, and Syria (Sanctioned Countries); (b) located in, organized under the laws of or ordinarily resident in Sanctioned Countries; (c) identified by any government or legal authority under applicable Trade Restrictions as a person with whom dealings and transactions by Franchisee and/or its Affiliates are prohibited or restricted, including but not limited to persons designated under United Nations Security Council Resolutions, the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) List of Specially Designated Nationals and Other Blocked Persons; the U.S. Department of State's lists of persons subject to non-proliferation sanctions; the European Union Financial Sanctions List; persons and entities subject to Special Measures regulations under Section 311 of the USA PATRIOT Act and the Bank Secrecy Act.   Securities means any public offering, private placement or other sale of securities in the Franchisee, the Hotel or the Hotel Site.   Site means domain names, the World Wide Web, the Internet, computer network/distribution systems, or other electronic communications sites.   Standards means all standards, specifications, requirements, criteria, and policies that have been and are in the future developed and compiled by us for use by you in connection with the design, construction, renovation, refurbishment, appearance, equipping, furnishing, supplying, opening, operating, maintaining, marketing, services, service levels, quality, and quality assurance of System Hotels, including the Hotel, and for hotel advertising and accounting, whether contained in the Manual or set out in this Agreement or other written communication.   System means the elements, including know-how, that we designate to distinguish hotels operating worldwide under the Brand (as may in certain jurisdictions be preceded or followed by a supplementary identifier such as by Hilton) that provide to the consuming public a similar, distinctive, high-quality hotel service. The System currently includes: the Brand, the Marks, the Trade Name, and the Standards; access to a reservation service; advertising, publicity and other marketing programs and materials; training programs and materials; and programs for our inspection of the Hotel and consulting with you.   System Hotels means hotels operating under the System using the Brand name.   Term has the meaning set forth in Section 3.0.   Trade Name means the name of the Hotel set forth in the Addendum.   Trade Restrictions means trade, economic or investment sanctions, export controls, anti-terrorism, non-proliferation, anti-money laundering and similar restrictions in force pursuant to laws, rules and regulations imposed under Laws to which the Parties are subject.   Transfer means in all its forms, any sale, lease, assignment, spin-off, transfer, or other conveyance of a direct or indirect legal or beneficial interest.   Transferee means the proposed new franchisee resulting from a Transfer.   Your Agreements means any other agreement between you and us or any of the Entities related to this Agreement, the Hotel and/or the Hotel Site.   2.0 GRANT OF LICENSE   2.1 Non-Exclusive License. We grant to you and you accept a limited, non-exclusive License to use the Marks and the System during the Term at, and in connection with, the operation of the Hotel in accordance with the terms of this Agreement.

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  2,2 Reserved Rights.   2.2.1 This Agreement does not limit our right, or the right of the Entities, to own, license or operate any Other Business of any nature, whether in the lodging or hospitality industry or not, and whether under the Brand, a Competing Brand, or otherwise. We and the Entities have the right to engage in any Other Businesses, even if they compete with the Hotel, the System, or the Brand, and whether we or the Entities start those businesses, or purchase, merge with, acquire, are acquired by, come under common ownership with, or associate with, such Other Businesses.   2.2.2 We may also   2.2.2.1 add, alter, delete or otherwise modify elements of the System;   2.2.2.2 use or license to others all or part of the System;   2.2.2.3 use the facilities, programs, services and/or personnel used in connection with the System in Other Businesses; and   2.2.2.4 use the System, the Brand and the Marks in the Other Businesses.   2.2.3 You acknowledge and agree that you have no rights to, and will not make any claims or demands for, damages or other relief arising from or related to any of the foregoing activities, and you acknowledge and agree that such activities will not give rise to any liability on our part, including liability for claims for unfair competition, breach of contract, breach of any applicable implied covenant of good faith and fair dealing, or divided loyalty.   3.0 TERM   The Term shall begin on the Effective Date and will end, without further notice, on the Expiration Date set forth in the Addendum, unless terminated earlier under the terms of this Agreement. You acknowledge and agree that this Agreement is non-renewable and that this Agreement confers on you absolutely no rights of license renewal or extension whatsoever following the Expiration Date.   4.0 OUR RESPONSIBILITIES   We have the following responsibilities to you under this Agreement, We reserve the right to fulfill some or all of these responsibilities through one of the Entities or through unrelated third parties, in our sole business judgment. We may require you to make payment for any resulting services or products directly to the provider.   4.1 Training. We may specify certain required and optional training programs and provide these programs at various locations. We may charge you for required training services and materials and for optional training services and materials we provide to you. You are responsible for all travel, lodging and other expenses you or your employees incur in attending these programs.   4.2 Reservation Service. We will furnish you with the Reservation Service. The Reservation Service will be furnished to you on the same basis as it is furnished to other System Hotels, subject to the provisions of Subsection 14.3 below.   4.3 Consultation. We may offer consultation services and advice in areas such as operations, facilities, and marketing. We may establish fees in advance, or on a project-by-project basis, for any consultation service or advice you request.   4.4 Marketing.   4.4.1 We will publish (either in hard copy or electronic form) and make available to the traveling public a directory that includes System Hotels. We will include the Hotel in advertising of System Hotels and in international, national and regional marketing programs in accordance with our general practice for System Hotels.

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  4.4.2 We will use your Monthly Program Fee to pay for various programs to benefit the System, including:   4.4.2.1 advertising, promotion, publicity, public relations, market research, and other marketing programs;   4.4.2.2 developing and maintaining directories of and Internet sites for System Hotels;   4.4.2.3 developing and maintaining the Reservation Service systems and support; and   4.4.2,4 administrative costs and overhead related to the administration or direction of these projects and programs.   4.4.3 We will have the sole right to determine how and when we spend these funds, including sole control over the creative concepts, materials and media used in the programs, the placement and allocation of advertising, and the selection of promotional programs.   4.4.4 We may enter into arrangements for development, marketing, operations, administrative, technical and support functions, facilities, programs, services and/or personnel with any other entity, including any of the Entities or a third party.   4.4.5 You acknowledge that Monthly Program Fees are intended for the benefit of the System and will not simply be used to promote or benefit any one System Hotel or market. We will have no obligation in administering any activities paid for with the Monthly Program Fee to make expenditures for you that are equivalent or proportionate to your payments or to ensure that the Hotel benefits directly or proportionately from such expenditures.   4.4.6 We may create any programs and allocate monies derived from Monthly Program Fees to any regions or localities, as we consider appropriate in our sole business judgment. The aggregate of Monthly Program Fees paid to us by System Hotels does not constitute a trust or advertising fund and we are not a fiduciary with respect to the Monthly Program Fees paid by you and other System Hotels.   4.4.7 We are not obligated to expend funds in excess of the amounts received from System Hotels. If any interest is earned on unused Monthly Program Fees, we will use the interest before using the principal. The Monthly Program Fee does not cover your costs of participating in any optional marketing programs and promotions offered by us in which you voluntarily choose to participate. These Monthly Program Fees do not cover the cost of operating the Hotel in accordance with the Standards.   4.5 Inspections/Compliance Assistance. We will administer a quality assurance program for the System that may include conducting pre- opening and periodic inspections of the Hotel and guest satisfaction surveys and audits to ensure compliance with the Standards. You will permit us to inspect the Hotel without prior notice to you to determine if the Hotel is in compliance with the Standards. You will cooperate with our representatives during these inspections. You will then take all steps necessary to correct any deficiencies within the times we establish. You may be charged a Quality Assurance Re-Evaluation Fee as set forth in the Standards. You will provide complimentary accommodations for the quality assurance auditor each time we conduct a regular inspection or a special on-site quality assurance re-evaluation after the Hotel has failed a regular quality assurance evaluation or to verify that deficiencies noted in a quality assurance evaluation report or PIP have been corrected or completed by the required dates.   4.6 Manual. We will issue to you or make available in electronic form the Manual and any revisions and updates we may make to the Manual during the Term. You agree to ensure that your copy of the Manual is, at all times, current and up to date. If there is any dispute as to your compliance with the provisions of the Manual, the master copy of the Manual maintained at our principal office will control.

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  4.7 Equipment and Supplies. We will make available to you for use in the Hotel various purchase, lease, or other arrangements for exterior signs, operating equipment, operating supplies, and furnishings, which we make available to other System Hotels.   5.0 YOUR RESPONSIBILITIES   5.1 Operational and Other Requirements. You must:   5.1.1 after the Opening Date, operate the Hotel twenty-four (24) hours a day;   5.1.2 operate the Hotel using the System, in compliance with this Agreement and the Standards, and in such a manner to provide courteous, uniform, respectable and high quality lodging and other services and conveniences to the public. You acknowledge that, although we provide the Standards, you have exclusive day-to-day control of the business and operation of the Hotel and we do not in any way possess or exercise such control;   5A.3 comply with the Standards, including our specifications for all supplies, products and services. We may require you to purchase a particular brand of product or service to maintain the common identity and reputation of the Brand, and you will comply with such requirements. Unless we specify otherwise, you may purchase products from any authorized .source of distribution; however, we reserve the right, in our business judgment, to enter into exclusive purchasing arrangements for particular products or services and to require that you purchase products or services from approved suppliers or distributors;   5.1.4 install, display, and maintain signage displaying or containing the Brand name and other distinguishing characteristics in accordance with Standards we establish for System Hotels;   5.1.5 comply with Standards for the training of persons involved in the operation of the Hotel, including completion by the General Manager and other key personnel of the Hotel of a training program for operation of the Hotel under the System, at a site we designate. You will pay us all fees and charges, if any, we require for your personnel to attend these training programs. You are responsible for  all travel, lodging and other expenses you or your employees incur in attending these programs;   5.1.6 purchase and maintain property management, revenue management, in-room entertainment, telecommunications, high-speed Internet access, and other computer and technology systems that we designate for the System or any portion of the System based on our assessment of the long-term best interests of System Hotels, considering the interest of the System as a whole;   5.1.7 advertise and promote the Hotel and related facilities and services on a local and regional basis in a first-class, dignified manner, using our identity and graphics Standards for all System Hotels, at your cost and expense. You must submit to us for our approval samples of all advertising and promotional materials that we have not previously approved (including any materials in digital, electronic or computerized form or in any form of media that exists now or is developed in the future) before you produce or distribute them. You will not begin using the materials until we approve them. You must immediately discontinue your use of any advertising or promotional material we disapprove, even if we previously approved the materials;   5.1.8 participate in and pay all charges in connection with all required System guest complaint resolution programs, which programs may include chargebacks to the Hotel for guest refunds or credits and all required System quality assurance programs, such as guest comment cards, customer surveys and mystery shopper programs. You must maintain minimum performance Standards and scores for quality assurance programs we establish;

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  5.1.9 honor all nationally recognized credit cards and credit vouchers issued for general credit purposes that we require and enter into all necessary credit card and voucher agreements with the issuers of such cards or vouchers;   6.1.10 participate in and use the Reservation Service, including any additions, enhancements, supplements or variants we develop or adopt, and honor and give first priority on available rooms to all confirmed reservations referred to the Hotel through the Reservation Service. The only reservation service or system you may use for outgoing reservations referred by or from the Hotel to other Network Hotels will be the Reservation Service or other reservation services we designate;   5.1.11 comply with Laws and, on request, give evidence to us of compliance;   5.1.12 participate in, and promptly pay all fees, commissions and charges associated with, all travel agent commission programs and third-party reservation and distribution services (such as airline reservation systems), all as required by the Standards and in accordance with the terms of these programs, all of which may be modified;   5.1.13 not engage, directly or indirectly, in any cross-marketing or cross-promotion of the Hotel with any Other Hotel or related business, without our prior written consent. You agree to refer guests and customers, wherever reasonably possible, only to System Hotels or Network Hotels. We may require you to participate in programs designed to refer prospective customers to Other Hotels. You must display all material, including brochures and promotional material we provide for System Hotels and Network Hotels, and allow advertising and promotion only of System Hotels and Network Hotels on the Hotel Site, unless we specifically direct you to include advertising or promotion of Other Hotels;   5.1.14 treat as confidential the Standards, the Manual and all other Proprietary Information. You acknowledge and agree that you do not acquire any interest in the Proprietary Information other than the right to utilize the same in the development and operation of the Hotel under the terms of this Agreement. You agree that you will not use the Proprietary Information in any business or for any purpose other than in the development and operation of the Hotel under the System and will maintain the absolute confidentiality of the Proprietary Information during and after the Term. You will not make unauthorized copies of any portion of the Proprietary Information; and will adopt and implement all procedures we may periodically establish in our business judgment to prevent unauthorized use or disclosure of the Proprietary Information, including restrictions on disclosure to employees and the use of non-disclosure and non-competition clauses in agreements with employees, agents and independent contractors who have access to the Proprietary information;   5.1.15 not become a Competitor, or permit your Affiliate to become a Competitor, in the upscale hotel market segment, or any substantially equivalent market segment, as determined by Smith Travel Research (STR) (or, if STR is no longer in existence, STR's successor or other such industry resource that is as equally as reputable as STR);   5.1.16 own fee simple title (or long-term ground leasehold interest for a term equal to the Term) to the real property and improvements that comprise the Hotel and the Hotel Site, or alternatively, at our request, cause the fee simple owner, or other third party acceptable to us, to provide its guaranty covering all of your obligations under this Agreement in form and substance acceptable to us;   5.1.17 maintain legal possession and control of the Hotel and Hotel Site for the Term and promptly deliver to us a copy of any notice of default you receive from any mortgagee, trustee under any deed of trust, or ground lessor for the Hotel, and on our request, provide any additional information we may request related to any alleged default;   5.1.18 not directly or indirectly conduct, or permit by lease, concession arrangement or otherwise, gaming or casino operations in or connected to the Hotel or on the Hotel Site, or otherwise engage in any activity which, in our business judgment, is likely to adversely reflect upon or affect in any manner, any gaming licenses or permits held by the Entities or the then-current stature of any of the Entities with any gaming commission, board, or similar governmental or regulatory agency, or the reputation or business of any of the Entities;

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  5.1.19 not directly or indirectly conduct or permit the marketing or sale of timeshares, vacation ownership, fractional ownership, condominiums or like schemes at, or adjacent to, the Hotel. This restriction will not prohibit you from directly or indirectly conducting timeshare, vacation ownership, fractional ownership, or condominium sales or marketing at and for any property located adjacent to the Hotel that is owned or leased by you so long as you do not use any of the Marks in such sales or marketing efforts and you do not yse the Hotel or its facilities in such sales and marketing efforts or in the business operations of the adjacent property;   5.1.20 participate in and pay all charges related to our marketing programs (in addition to programs covered by the Monthly Program Fee), all guest frequency programs we require, and any optional programs that you opt into;   5.1.21 honor the terms of any discount or promotional programs (including any frequent guest program) that we offer to the public on your behalf, any room rate quoted to any guest at the time the guest makes an advance reservation, and any award certificates issued to Hotel guests participating in these programs;   5.1.22 after the Effective Date, maintain, at your expense, insurance of the types and in the minimum amounts we specify in the Standards. All such insurance must be with insurers having the minimum ratings we specify, name as additional insureds the parties we specify in the Standards, and carry the endorsements and notice requirements we specify in the Standards. If you fail or neglect to obtain or maintain the insurance or policy limits required by this Agreement or the Standards, we have the option, but not the obligation, to obtain and maintain such insurance without notice to you, and you will immediately on our demand pay us the premiums and cost we incur in obtaining this insurance;   5.1.23 not share the business operations and Hotel facilities with any Other Hotel or other business;   5.1.24 not engage in any tenant-in-common syndication or Transfer of any tenant-incommon interest in the Hotel or the Hotel Site; and   5.1.25 promptly provide to us all information we reasonably request about you and your Affiliates (including your respective beneficial owners, officers, directors, shareholders, partners or members) and/or the Hotel, title to the property on which the Hotel is constructed and any other property used by the Hotel. You will not be required to provide us information about Publicly Traded Equity Owners with a non- Controlling Equity Interest except as we deem necessary in our legal or business judgment to ensure compliance by us or our Affiliates with applicable Laws.   6.0 HOTEL WORK   6.1 Necessary Consents.   6A.1 You must obtain our prior written consent before retaining or engaging any architect, interior designer, general contractor and major subcontractors for the Hotel. We will not unreasonably withhold such consent.   6.1.2 Plans and Designs must be submitted to us in accordance with the schedule specified in the Addendum or any PIP. Before we approve your Plans, your architect or other certified professional must certify to us that the Plans comply with all Laws related to accessibility/accommodations/facilities for those with disabilities.

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  6.1.3 You shall not commence any Hotel Work unless and until we have issued our written consent in respect of the Plans and Designs, which consent will not be unreasonably withheld.   6.1.4 Once we have provided our consent to the Plans and Designs, no change may be made to the Plans or Designs without our prior written consent. By consenting to the Plans and Designs or any changes or modifications to the Plans and Designs, we do not warrant the depth of our analysis or assume any responsibility or liability for the suitability of the Plans and Designs or the resulting Hotel Work,   6.1.5 You are solely responsible for ensuring that the Plans and Designs (including Plans and Designs for Hotel Work) comply with our then-current Standards, the Manual, and all Laws.   6.2 Initial Hotel Work. You will perform or cause the Hotel Work to be performed in accordance with this Agreement, the approved Plans and Designs, the Manual and, for Renovation Work, the PIP. You will bear the entire cost of the Hotel Work, including the cost of the Plans and Designs, professional fees, licenses, permits, equipment, furniture, furnishings and supplies. You are solely responsible for obtaining all necessary licenses, permits and zoning variances required for the Hotel Work.   6.3 Commencement and Completion of the Hotel Work.   6.3.1 You will commence the Hotel Work on or before the Construction Commencement Date or Renovation Commencement Date specified in the Addendum. You may request an extension by submitting a written request for our approval before the applicable deadline, describing the status of the project and the reason for the requested extension, and paying our then-current extension fee. We may condition our approval on an update to the Plans and Designs. Once commenced, the Hotel Work will continue uninterrupted except to the extent continuation is prevented by events of Force Majeure. You must give written notice to us specifying the nature and duration of any event of Force Majeure promptly after becoming aware of the event, and specifying that you have used, and continue to use, reasonable endeavours to mitigate the effects of such event until such event ceases to exist. On verification of the event of Force Majeure, we will approve an extension of the Construction Commencement Date or Renovation Work Completion Date for up to eighteen (18) months. You must promptly provide to us evidence that the Construction Work has commenced if we request it.   6.3.2 The Hotel Work must be completed and the Hotel must be furnished, equipped, and otherwise made ready to open in accordance with the terms of this Agreement no later than the Construction Work Completion Date or Renovation Work Completion Date specified in the Addendum. You may request an extension by submitting a written request for our approval before the applicable deadline, describing the status of the project and the reason for the requested extension, and paying our then-current extension fee.   6.3.3 On completion of the Hotel Work and, as a condition to our authorization to open the Hotel, your architect, general contractor or other certified professional must provide us with a certificate stating that the as-built premises comply with all Laws relating to accessibility/accommodations/facilities for those with disabilities.   6.4 Opening the Hotel Under This Agreement.   6.4.1 You will open the Hotel on the Opening Date. You will not open the Hotel unless and until you receive our written consent to do so pursuant to Subsection 6.4.2 or 6.4.3.   6.4.2 You will give us at least fifteen (15) days advance notice that you have complied with all the terms and conditions of this Agreement and the Hotel is ready to open. We will use reasonable efforts within fifteen (15) days after we receive your notice to visit the Hotel and to conduct other investigations as we deem necessary to determine whether to authorize the opening of the Hotel, but we will not be liable for delays or loss occasioned by our inability to complete our investigation and to make this determination within the fifteen (15) day period. If you fail to pass our initial opening site visit, we may, in our sole business judgment, charge you reasonable fees associated with any additional visits.

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  6.4.3 We shall be entitled to withhold our consent to the opening of the Hotel until:   6.4.3.1 you have complied with all the terms and conditions in this Agreement;   6.4.3.2 your staff has received adequate training and instruction in the manner we require;   6.4.3.3 you have received authorization to open the Hotel from the relevant governmental authority for the jurisdiction in which the Hotel is located, if applicable; and   6.4.3.4 all fees and charges you owe to us or the Entities have been paid.   6.4.4 Opening the Hotel before the Opening Date is a material breach of this Agreement.   6.4.4.1 You will pay us Liquidated Damages in the amount of Five Thousand Dollars ($5,000) per day if you open the Hotel before the Opening Date to compensate us for the damage caused by such breach. You must also reimburse us for all of our costs and expenses, including legal fees, incurred in enforcing our rights under this Agreement.   6.4.4.2 These Liquidated Damages for damage to our Marks shall not limit or exclude any other remedies we may have at law or in equity. You acknowledge and agree that that the Liquidated Damages payable under this Subsection represent a reasonable estimate of the minimum just and fair compensation for the damages we will suffer as the result of the opening of the Hotel before the Opening Date in material breach of this Agreement.   6.5 Performance of Agreement. You must satisfy all of the terms and conditions of this Agreement, and equip, supply, staff and otherwise make the Hotel ready to open under our Standards. As a result of your efforts to comply with the terms and conditions of this Agreement, you will incur significant expense and expend substantial time and effort. You acknowledge and agree that we will have no liability or obligation to you for any losses, obligations, liabilities or expenses you incur if we do not authorize the Hotel to open or if we terminate this Agreement because you have not complied with the terms and conditions of this Agreement.   6.6 Hotel Refurbishment and Room Addition.   6.6.1 We may periodically require you to modernize, rehabilitate and/or upgrade the Hotel's fixtures, equipment, furnishings, furniture, signs, computer hardware and software and related equipment, supplies and other items to meet the then-current Standards. You will make these changes at your sole cost and expense and in the time frame we require.   6.6.2 You may not make any significant changes (including major changes in structure, design or decor) in the Hotel. Minor redecoration and minor structural changes that comply with our Standards will not be considered significant.   6.6.3 You may not make any change in the number of approved Guest Rooms in the Addendum. if you wish to add additional Guest Rooms to the Hotel after the Opening Date, you must submit an application to obtain our consent. If we consent to the addition of Guest Rooms at the Hotel, you must pay us our then-current Room Addition Fee. As a condition to our granting approval of your application, we may require you to modernize, rehabilitate or upgrade the Hotel in accordance with Subsection 6.6.1 of this Agreement, and to pay us our then-current PIP Fee to prepare a PIP to determine the renovation requirements for the Hotel. We may also require you to execute an amendment to this Agreement covering the terms and conditions of our consent to the addition of Guest Rooms.

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  7.0 STAFF AND MANAGEMENT OF THE HOTEL   7.1 You are solely responsible for the management of the Hotel's business. You will provide qualified and experienced management (a Management Company) and an individual to manage the Hotel (a General Manager), each approved by us in writing. We have the right to communicate directly with the Management Company and managers at the Hotel. We may rely on the communications of such managers or Management Company as being on your behalf. Any Management Company and/or General Manager must have the authority to perform all of your obligations under this Agreement. The engagement of a Management Company does not reduce your obligations under this Agreement. In the case of any conflict between this Agreement and any agreement with the Management Company or General Manager, this Agreement prevails.   7.2 You represent and agree that you have not, and will not, enter into any lease, management agreement or other similar arrangement for the operation of the Hotel or any part of the Hotel without our prior written consent. To be approved by us as the operator of the Hotel, you, any proposed Management Company and any proposed General Manager must be qualified to manage the Hotel. We may refuse to approve you, any proposed Management Company or any proposed General Manager who is a Competitor or which, in our business judgment, is inexperienced or unqualified in managerial skills or operating capability or is unable or unwilling to adhere fully to your obligations under this Agreement.   7.3 If the Management Company becomes a Competitor or the Management Company and/or the General Manager resigns or is terminated by you or otherwise becomes unsuitable in our sole business judgment to manage the Hotel during the Term, you will have ninety (90) days to retain a qualified substitute Management Company and/or General Manager acceptable to us.   8.0 PAYMENT OF FEES   8.1 Monthly Fees. Beginning on the Effective Date, you will pay to us for each month (or part of a month, including the final month you operate under this Agreement) the Monthly Fees, each of which is set forth in the Addendum.   8.2 Calculation and Payment of Fees.   8.2.1 The Monthly Fees will be calculated in accordance with the accounting methods of the then-current Uniform System of Accounts for the Lodging Industry, or such other accounting methods specified by us in the Manual.   8.2.2 The Monthly Fees will be paid to us at the place and in the manner we designate on or before the fifteenth (15th) day of each month and will be accompanied by our standard schedule setting forth in reasonable detail the computation of the Monthly Fees for such month.   8.2.3 We may require you to transmit the Monthly Fees and all other payments required under this Agreement by wire transfer or other form of electronic funds transfer and to provide the standard schedule in electronic form. You must bear all costs of wire transfer or other form of electronic funds transfer or other electronic payment and reporting.   8.2.4 In the event of fire or other insured casualty that results in a reduction of Gross Rooms Revenue, you will determine and pay us, from the proceeds of any business interruption or other insurance applicable to loss of revenues, an amount equal to the forecasted Monthly Fees, based on the Gross Rooms Revenue amounts agreed on between you and your insurance company that would have been paid to us in the absence of such casualty.

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  8.3 Other Fees. You will timely pay all amounts due us or any of the Entities for any invoices or for goods or services purchased by or provided to you or paid by us or any of the Entities on your behalf, including pre-opening sales and operations training or extension fees as specified on the Addendum.   8.4 Taxes. If a Gross Receipts Tax is imposed on us or the Entities based on payments made by you related to this Agreement, then you must reimburse us or the Entity for such Gross Receipts Tax to ensure that the amount we or the Entity retains, after paying the Gross Receipts Tax, equals the net amount of the payments you are required to pay us or the Entity had such Gross Receipts Tax not been imposed. You are not required to pay income taxes payable by us or any Entity as a result of our net income relating to fees collected under this Agreement.   8.5 Application of Fees. We may apply any amounts received from you to any amounts due under this Agreement.   9.0 PROPRIETARY RIGHTS   9.1 Our Proprietary Rights.   9.1.1 You will not contest, either directly or indirectly during or after the Term:   9.1.1.1 our (and/or any Entities') ownership of, rights to and interest in the System, Brand, Marks and any of their elements or components, including present and future distinguishing characteristics and agree that neither you nor any design or construction professional engaged by you may use our Standards, our Manual or your approved Plans and Designs for any hotel or lodging project other than the Hotel;   9.1.1.2 our sole right to grant licenses to use all or any elements or components of the System;   9.1.1.3 that we (and/or the Entities) are the owner of (or the licensee of, with the right to sub-license) all right, title and interest in and to the Brand and the Marks used in any form and in any design, alone or in any combination, together with the goodwill they symbolize; or   9,1.1.4 the validity or ownership of the Marks.   9.1.2 You acknowledge that these Marks have acquired a secondary meaning which indicates that the Hotel, Brand and System are operated by or with our approval. All improvements and additions to, or associated with, the System, all Marks, and all goodwill arising from your use of the System and the Marks, will inure to our benefit and become our property (or that of the applicable Entities), even if you develop them.   9.1.3 You will not apply for or obtain any trademark or service mark registration of any of the Marks or any confusingly similar marks in your name or on behalf of or for the benefit of anyone else. You acknowledge that you are not entitled to receive any payment or other value from us or from any of the Entities for any goodwill associated with your use of the System or the Marks, or any elements or components of the System.   9.2 Trade Name, Use of the Marks.   9,2.1 Trade Name.   9.2.1.1 The Hotel will be initially known by the Trade Name set forth in the Addendum. We may change the Trade Name, the Brand name and/or any of the Marks (but not the Principal Mark), or the way in which any of them (including the Principal Mark) are depicted, at any time at our sole option and at your expense. You may not change the Trade Name without our specific prior written consent.

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  9.2.1.2 You acknowledge and agree that you are not acquiring the right to use any service marks, copyrights, trademarks, trade dress, logos, designs, insignia, emblems, symbols, slogans, distinguishing characteristics, trade names, domain names or other marks or characteristics owned by us or licensed to us that we do not specifically designate to be used in the System.   9.3 Use of Trade Name and Marks. You will operate under the Marks, using the Trade Name, at the Hotel. You will not adopt any other names or marks in operating the Hotel without our approval. You will not, without our prior written consent, use any of the Marks, or the word Hilton, or other Network trademarks, trade names or service marks, or any similar words or acronyms, in:   9.3.1 your corporate, partnership, business or trade name; 9.3.2 any Internet-related name (including a domain name);   9.3.3 or any business operated separately from the Hotel, including the name or identity of developments adjacent to or associated with the Hotel.   9.4 Trademark Disputes.   9.4.1 You will immediately notify us of any infringement or dilution of or challenge to your use of any of the Marks and will not, absent a court order or our prior written consent, communicate with any other person regarding any such infringement, dilution, challenge or claim. We will take the action we deem appropriate with respect to such challenges and claims and have the sole right to handle disputes concerning use of all or any part of the Marks or the System. You will fully cooperate with us and any applicable Entity in these matters. We will reimburse you for expenses incurred by you as the direct result of activities undertaken by you at our prior written request and specifically relating to the trademark dispute at issue. We will not reimburse you for any other expenses incurred by you for cooperating with us or the Entities.   9.4.2 You appoint us as your exclusive attorney-in-fact, to prosecute, defend and/or settle all disputes of this type at our sole option. You will sign any documents we or the applicable Entity believe are necessary to prosecute, defend or settle any dispute or obtain protection for the Marks and the System and will assign to us any claims you may have related to these matters. Our decisions as to the prosecution, defense or settlement of the dispute will be final. All recoveries made as a result of disputes regarding use of all or part of the System or the Marks will be for our account.   9.5 Web Sites.   9.5.1 You may not register, own, maintain or use any Sites that relate to the Network or the Hotel or that include the Marks, The only domain names, Sites, or Site contractors that you may use relating to the Hotel or this Agreement are those we assign or otherwise approve in writing. You acknowledge that you may not, without a legal license or other legal right, post on your Sites any material in which any third party has any direct or indirect ownership interest. You must incorporate on your Sites any information we require in the manner we deem necessary to protect our Marks.   9.5.2 Any use of the Marks on any Site must conform to our requirements, including the identity and graphics Standards for all System hotels. Given the changing nature of this technology, we have the right to withhold our approval, and to withdraw any prior approval, and to modify our requirements.

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  9.6 Covenant.   9.6.1 You agree, as a direct covenant with us and the Entities, that you will comply with all of the provisions of this Agreement related to the manner, terms and conditions of the use of the Marks and the termination of any right on your part to use any of the Marks. Any non-compliance by you with this covenant or the terms of this Agreement related to the Marks, or any unauthorized or improper use of the System or the Marks, will cause irreparable damage to us and/or to the Entities and is a material breach of this Agreement.   9.6.2 If you engage in such non-compliance or unauthorized and/or improper use of the System or the Marks during or after the Term, we and any of the applicable Entities, along with the successors and assigns of each, will be entitled to both temporary and permanent injunctive relief against you from any court of competent jurisdiction, in addition to all other remedies we or the Entities may have at law. You consent to the entry of such temporary and permanent injunctions. You must pay all costs and expenses, including reasonable attorneys' fees, expert fees, costs and other expenses of litigation that we and/or the Entities may incur in connection with your non-compliance with this covenant.   10.0 REPORTS, RECORDS, AUDITS, AND PRIVACY 10.1 Reports.   10.1.1 At our request, you will prepare and deliver to us the Reports containing the Operational Information (and any other information we reasonable require) in the form, manner and time frame we require. At a minimum, by the fifteenth (15th) day of each month, you will submit to us the Operational Information for the previous month and reflecting the computation of the amounts then due under Section 8, in the form, manner and time frame we require.   10.1.2 The Reports will be certified as accurate in the manner we require. You will permit us to inspect your books and records at all reasonable times.   10.2 Maintenance of Records. You will prepare, on a current basis, (and preserve for no less than the greater of four (4) years or the time period we stated in our record retention requirements), complete and accurate records concerning Gross Rooms Revenue and all financial, operating, marketing and other aspects of the Hotel. You will maintain an accounting system that fully and accurately reflects all financial aspects of the Hotel and its business. These records will include books of account, tax returns, governmental reports, register tapes, daily reports, and complete quarterly and annual financial statements (including profit and loss statements, balance sheets and cash flow statements) and will be prepared in the form, manner and time frame we require.   10.3 Audit.   10.3.1 We may require you to have the Gross Rooms Revenue, fees or other monies due to us computed and certified as accurate by a certified public accountant. During the Term and for two (2) years thereafter, we and our authorized agents have the right to verify Operational Information required under this Agreement by requesting, receiving, inspecting and auditing, at all reasonable times, any and all records referred to above wherever they may be located (or elsewhere if we request).   10.3.2 If any inspection or audit reveals that you understated or underpaid any payment due to us, you will promptly pay to us the deficiency plus interest from the date each payment was due until paid at the interest rate set forth in Section 17.15 of this Agreement.   10.3.3 If the audit or inspection reveals that the underpayment is willful, or is for five percent (5%) or more of the total amount owed for the period being inspected, you will also reimburse us for all inspection and audit costs, including reasonable travel, lodging, meals, salaries and other expenses of the inspecting or auditing personnel. Our acceptance of your payment of any deficiency will not waive any rights we may have as a result of your breach, including our right to terminate this Agreement. If the audit discloses an overpayment, we will credit this overpayment against your future payments due under this Agreement, without interest, or, if no future payments are due under this Agreement, we will promptly pay you the amount of the overpayment without interest.

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  10.4 Ownership of Information. All Information we obtain from you and all revenues we derive from such Information will be our property and Proprietary Information that we may use for any reason, including making a financial performance representation in our franchise disclosure documents. At your sole risk and responsibility, you may use Information that you acquire from third parties in connection with operating the Hotel, such as Personal Information, at any time during or after the Term, to the extent that your use is permitted by Law.   10.5 Privacy and Data Protection. You will:   10.5.1 comply with all applicable Privacy Laws;   10.5.2 comply with all Standards that relate to Privacy Laws and the privacy and security of Personal Information;   10.5.3 refrain from any action or inaction that could cause us or the Entities to breach any Privacy Laws;   10.5.4 do and execute, or arrange to be done and executed, each act, document and thing we deem necessary in our business judgment to keep us and the Entities in compliance with the Privacy Laws; and   10.5.5 immediately report to us the theft or loss of Personal Information (other than the Personal Information of your own officers, directors, shareholders, employees or service providers).   11.0 CONDEMNATION AND CASUALTY   11.1 Condemnation. You must immediately inform us of any proposed taking of any portion of the Hotel by eminent domain. If, in our business judgment, the taking is significant enough to render the continued operation of the Hotel in accordance with the Standards and guest expectations impractical, then we may terminate this Agreement on written notice to you and you will not pay us Liquidated Damages. If such taking, in our business judgment, does not require the termination of this Agreement, then you will make all necessary modifications to make the Hotel conform to its condition, character and appearance immediately before such taking, according to Plans and Designs approved by us. You will take all measures to ensure that the resumption of normal operations at the Hotel is not unreasonably delayed.   11.2 Casualty.   11.2.1 You must immediately inform us if the Hotel is damaged by fire or other casualty. If the damage or repair requires closing the Hotel, you may choose to repair or rebuild the Hotel according to the Standards, provided you: begin reconstruction within six (6) months after closing and reopen the Hotel for continuous business operations as soon as practicable (but in any event no later than eighteen (18) months after the closing of the Hotel) and give us at least thirty (30) days notice of the projected date of reopening. If you cannot begin or complete reconstruction within these time frames, you may request extension approval from us in writing, describing the status of the project and the reason for the requested extension, which we will consider in accordance with our standard business practice. Once the Hotel is closed, you will not promote the Hotel as a System Hotel or otherwise identify the Hotel using any of the Marks without our prior written consent.

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  11.2.2 You and we each have the right to terminate this Agreement if you elect not to repair or rebuild the Hotel as set forth above in Subsection 11.2.1, provided the terminating party gives the other party sixty (60) days written notice. We will not require you to pay Liquidated Damages unless you or one of your Affiliates own and/or operate a hotel at the Hotel Site under a lease, license or franchise from a Competitor within three (3) years of the termination date.   11.3 No Extensions of Term. Nothing in this Section 11 will extend the Term.   12.0 NOTICE OF INTENT TO MARKET   Except in the case of a Transfer governed by Subsection 13.2.1 or 13.2.2 of this Agreement, if you or a Controlling Affiliate want to Transfer any Equity Interest, you must give us written notice, concurrently with beginning your marketing efforts.   13.0 TRANSFERS   13.1 Our Transfer.   13.1.1 We may assign or Transfer this Agreement or any of our rights, duties, or assets under this Agreement, by operation of law or otherwise, to any person or legal entity without your consent, provided that any such person or legal entity shall be required to assume all of our obligations to permit you to operate the Hotel under the Brand after such assignment. Any of the Entities may transfer, sell, dispose of, or otherwise convey, their ownership rights in us or any of our Affiliates, by operation of law or otherwise, including by public offering, to any person or legal entity without your consent.   13.1.2 If we assign this Agreement to a third party who expressly assumes our obligations under this Agreement, we will no longer have any performance or other obligations to you under this Agreement and your right to use any programs, rights or services provided to you by us or our Affiliates under this Agreement will terminate.   13.2 Your Transfer. You understand and acknowledge that the rights and duties in this Agreement are personal to you and that we are entering into this Agreement in reliance on your business skill, financial capacity, and the personal character of you, your officers, directors, partners, members, shareholders or trustees. A Transfer by you of any Equity Interest, or this Agreement, or any of your rights or obligations under this Agreement, or a Transfer by an Equity Owner is prohibited other than as expressly permitted herein.   13.2.1 Permitted Transfers That Do Not Require Notice or Consent. The following Transfers are permitted without giving notice or obtaining our consent if the Permitted Transfer does not result in a change in Control of the Franchisee, the Hotel or the Hotel Site and you meet the requirements set forth below.   13.2.1.1 Privately Held Equity Interests: Less than 25% Change/No Change of Control. An Equity Interest that is not publicly traded may be Transferred if, immediately after the transaction, the transferee Equity Owner will own less than twenty-five percent (25%) of the Equity Interest.   13.2.1.2 Publicly Traded Equity Interests. A Publicly Traded Equity interest may be Transferred.

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  13.2.2 Permitted Transfers That Require Notice and Consent. We will permit you or any Equity Owner named in the Addendum as of the Effective Date (or any transferee Equity Owner we subsequently approve) to engage in the Permitted Transfers set forth below if any such Permitted Transfer does not result in a change of Control of the Franchisee, the Hotel or the Hotel Site and: (a) the proposed transferee is not a Sanctioned Person or a Competitor; (b) you give us at least sixty (60) days' advance written notice of the proposed Permitted Transfer (including the identity and contact information for any proposed transferee and any other information we may require in order to review the proposed Permitted Transfer); (c) you pay to us a nonrefundable processing fee of Five Thousand Dollars ($5,000) with the Permitted Transfer request; (d) you follow our then-current procedure for processing Permitted Transfers; and (e) you execute any documents required by us for processing Permitted Transfers. If a Permitted Transfer listed in Subsection 13.2.2 otherwise qualifies as a Permitted Transfer without notice or consent under Subsection 13.2.1, the provisions of Subsection 13.2.1 will control.   13.2.2.1 Affiliate Transfer. You or any Equity Owner may Transfer an Equity Interest or this Agreement to an Affiliate.   13.2.2,2 Transfers to a Family Member or Trust, If you or any Equity Owner as of the Effective Date are a natural person, you and such Equity Owner may Transfer an Equity Interest or this Agreement to an immediate family member (i.e., spouse, children, parents, siblings) or to a trust for your benefit or the benefit of the Equity Owner or the Equity Owner's immediate family members.   13.2.2.3 Transfer On Death. On the death of Franchisee or an Equity Owner who is a natural person, this Agreement or the Equity Interest of the deceased Equity Owner may Transfer in accordance with such person's will or, if such person dies intestate, in accordance with laws of intestacy governing the distribution of such person's estate, provided that: (i) the transfer on death is to an immediate family member or to a legal entity formed by such family member(s); and (ii) within one (1) year after the death, such family member(s) or entity meet all of our then-current requirements for an approved Transferee.   13.2.2.4 Privately Held Equity Interests: 25% or Greater Change/No Change of Control. You or any Equity Owner as of the Effective Date (or any transferee Equity Owner we subsequently approve) may Transfer an Equity Interest in Franchisee even though, after the completion of such Transfer, twenty-five percent (25%) or more of the Equity Interests in Franchisee will have changed hands since the Effective Date of this Agreement.   13.2.3 Change of Ownership Transfer. Any proposed Transfer that is not described in Subsection 13.2.1 or 13.2,2 is a Change of Ownership Transfer. We will have sixty (60) days from our receipt of the completed and signed franchise application to consent or withhold our consent to any proposed Change of Ownership Transfer. You consent to our communication with any party we deem necessary about the Hotel in order for us to evaluate the proposed Change of Ownership Transfer. Our consent to the Change of Ownership Transfer is subject to the following conditions, all of which must be satisfied at or before the date of closing the Change of Ownership Transfer (Closing):   13.2.3.1 the Transferee submits a Change of Ownership Application, pays our then current franchise application fee and any PIP Fee, executes our then-current form of new franchise agreement and all ancillary forms, including a guaranty from a third-party acceptable to us, if required;   13.2.3.2 you are not in default of this Agreement or any other agreements with us or our Affiliates;   13.2.3.3 you or the Transferee pay all amounts due to us and the Entities through the date of the Closing;   13.2.3.4 you execute our then-current form of voluntary termination agreement, which may include a general release, covering termination of this Agreement;   13.2.3.5 you conclude to our satisfaction, or provide adequate security for, any suit, action, or proceeding pending or threatened against you, us or any Entity with respect to the Hotel, which may result in liability on the part of us or any Entity;

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  13.2.3.6 you, the Transferee and/or transferee Equity Owner(s) submit to us all information related to the Transfer that we require, including applications; and   13.2.3.7 the Transferee meets our then-current business requirements for new franchisees and is neither a Sanctioned Person nor a Competitor.   13.2.4 Public Offering or Private Placement.   13.2.4.1 Any offering by you of Securities requires our review if you use the Marks, or refer to us or this Agreement in your offering. All materials required by any Law for the offer or sale of those Securities must be submitted to us for review at least sixty (60) days before the date you distribute those materials or fife them with any governmental agency, including any materials to be used in any offering exempt from registration under any securities laws.   13.2.4.2 You must submit to us a non-refundable Five Thousand Dollar ($5,000) processing fee with the offering documents and pay any additional costs we may incur in reviewing your documents, including reasonable attorneys' fees. Except as legally required to describe the Hotel in the offering materials, you may not use any of the Marks or otherwise imply our participation or that of Hilton Worldwide or any other Entity in or endorsement of any Securities or any Securities offering.   13.2.4.3 We have the right to approve any description of this Agreement or of your relationship with us, or any use of the Marks, contained in any prospectus, offering memorandum or other communications or materials you use in the sale or offer of any Securities. Our review of these documents will not in any way be considered our agreement with any statements contained in those documents, including any projections, or our acknowledgment or agreement that the documents comply with any Laws.   13.2.4.4 You may not sell any Securities unless you clearly disclose to all purchasers and offerees that: (i) neither we, nor any Entity, nor any of our or their respective officers, directors, agents or employees, will in any way be deemed an issuer or underwriter of the Securities, as those terms are defined in applicable securities laws; and (ii) we, the Entities, and our respective officers, directors, agents and employees have not assumed and will not have any liability or responsibility for any financial statements, prospectuses or other financial information contained in any prospectus or similar written or oral communication.   13.2.4.5 You must indemnify, defend and hold the Indemnified Parties free and harmless of and from any and all liabilities, costs, damages, claims or expenses arising out of or related to the safe or offer of any of your Securities to the same extent as provided in Subsection 15.1 of this Agreement.   13.2.5 Mortgages and Pledges to Lending Institutions.   13.2.5.1 You or an Equity Owner may mortgage or pledge the Hotel or an Equity Interest to a lender that finances the acquisition, development or operation of the Hotel, without notifying us or obtaining our consent, provided that: (i) you or the applicable Equity Owner are the sole borrower; and (ii) the loan is not secured by any other hotels or other collateral.   13.2.5.2 You must notify us, in writing, before incurring other proposed indebtedness that involves a mortgage or pledge of the Hotel or an Equity Interest, or a collateral assignment of this Agreement, so that we can evaluate the structure to determine whether any special agreements and/or assurances from the lender, the Franchisee and/or its Equity Owners will be required including a lender comfort letter or a loan related guaranty, in a form satisfactory to us. We may charge a fee for our review of a proposed mortgage or pledge and for the processing of a lender comfort letter.

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  13.2.6 Commercial Leases. You may lease or sublease commercial space in the Hotel, or enter into concession arrangements for operations in connection with the Hotel, in the ordinary course of business, subject to our right to review and approve the nature of the proposed business and the proposed brand and concept, all in keeping with our Standards for System Hotels.   14.0 TERMINATION   14.1 Termination with Opportunity to Cure. We may terminate this Agreement by written notice to you and opportunity to cure at any time before its expiration on any of the following grounds:   14.1.1 You fail to pay us any sums due and owing to us or the Entities under this Agreement within the cure period set forth in the notice, which shall not be less than ten (10) days;   14.1.2 You fail to begin or complete the Hotel Work by the relevant dates set forth in the Addendum or fail to open the hotel on the Opening Date, and do not cure that default within the cure period set forth in the notice, which shall not be less than ten (10) days;   14.1.3 You do not purchase or maintain insurance required by this Agreement or do not reimburse us for our purchase of insurance on your behalf within the cure period set forth in the notice, which shall not be less than ten (10) days; or   14.1.4 You fail to comply with any other provision of this Agreement, the Manual or any Standard and do not cure that default within the cure period set forth in the notice, which shall not be less than thirty (30) days.   14.2 Immediate Termination by Us. We may immediately terminate this Agreement on notice to you and without any opportunity to cure the default if:   14.2.1 after curing any material breach of this Agreement or the Standards, you engage in the same non-compliance within any consecutive twenty-four (24) month period, whether or not the non-compliance is corrected after notice, which pattern of non-compliance in and of itself will be deemed material;   14.2.2 you receive three (3) notices of material default in any twelve (12) month period, even if the defaults have been cured;   14.2.3 you fail to pay debts as they become due or admit in writing your inability to pay your debts or you make a general assignment for the benefit of your creditors;   14.2.4 you have an order entered against you appointing a receiver for the Hotel or a substantial part of your or the Hotel's assets or you file a voluntary petition in bankruptcy or any pleading seeking any reorganization, liquidation, or dissolution under any law, or you admit or fail to contest the material allegations of any such pleading filed against you or the Hotel, and the action results in the entry of an order for relief against you under the Bankruptcy Code, the adjudication of you as insolvent, or the abatement of the claims of creditors of you or the Hotel under any law;   14.2.5 you or your Guarantor lose possession or the right to possession of all or a significant part of the Hotel or Hotel Site for any reason other than those described in Section 11;   14.2.6 you fail to operate the Hotel for five (5) consecutive days, unless the failure to operate is due to fire, flood, earthquake or similar causes beyond your control, provided that you have taken reasonable steps to minimize the impact of such events;   14.2.7 you contest in any court or proceeding our ownership of the System or any part of the System or the validity of any of the Marks;

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  14.2.8 you or any Equity Owner with a controlling Equity Interest are or have been convicted of a felony or any other offense or conduct, if we determine in our business judgment it is likely to adversely reflect on or affect the Hotel, the System, us and/or any Entity;   14.2.9 you conceal revenues, maintain false books and records of accounts, submit false reports or information to us or otherwise attempt to defraud us;   14.2.10 you, your Affiliate or a Guarantor become a Competitor except as otherwise permitted by Subsection 5.1.15;   14.2.11 you Transfer any interest in yourself, this Agreement, the Hotel or the Hotel Site, other than in compliance with Section 13 and its subparts;   14.2.12 you, your Affiliate or a Guarantor become a Sanctioned Person or are owned or controlled by a Sanctioned Person or fail to comply with the provisions of Subsection 17.13;   14.2.13 information is disclosed involving you or your Affiliates, which, in our business judgment, is likely to adversely reflect on or affect in any manner, any gaming licenses or permits held by the Entities or the then-current stature of any of the Entities with any gaming commission, board, or similar governmental or regulatory agency, or the reputation or business of any of the Entities;   14.2.14 any Guarantor breaches its guaranty to us; or   14.2.15 a threat or danger to public health or safety results from the construction, maintenance, or operation of the Hotel.   14.3 Suspension Interim Remedies. If you are in default of'this Agreement, we may elect to impose an Interim Remedy, including the suspension of our obligations under this Agreement and/or our or the Entities' obligations under any other of Your Agreements.   14.3.1 We may suspend the Hotel from the Reservation Service and any reservation and/or website services provided through or by us. We may remove the listing of the Hotel from any directories or advertising we publish. If we suspend the Hotel from the Reservation Service, we may divert reservations previously made for the Hotel to other System Hotels or Network Hotels.   14.3.2 We may disable all or any part of the software provided to you under Your Agreements and/or may suspend any one or more of the information technology and/or network services that we provide or support under Your Agreements.   14.3.3 We may charge you for costs related to suspending or disabling your right to use any software systems or technology we provided to you, together with intervention or administration fees as set forth in the Standards.   14.3.4 You agree that our exercise of the right to elect Interim Remedies will not result in actual or constructive termination or abandonment of this Agreement and that our decision to elect Interim Remedies is in addition to, and apart from, any other right or remedy we may have in this Agreement. If we exercise the right to elect Interim Remedies, the exercise will not be a waiver of any breach by you of any term, covenant or condition of this Agreement. You will not be entitled to any compensation, including repayment, reimbursement, refund or offsets, for any fees, charges, expenses or losses you may directly or indirectly incur by reason of our exercise and/or withdrawal of any Interim Remedy.

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  14.4 Liquidated Damages on Termination.   14.4.1 Calculation of Liquidated Damages. You acknowledge and agree that the premature termination of this Agreement will cause substantial damage to us. You agree that Liquidated Damages are not a penalty, but represent a reasonable estimate of the minimum just and fair compensation for the damages we will suffer as the result of your failure to operate the Hotel for the Term. If this Agreement terminates before the Expiration Date, you will pay us Liquidated Damages as follows:   14.4.1.1 If termination occurs before you begin the Hotel Work and before the Opening Date, and you or any Guarantor (or your or any Guarantor's Affiliates) directly or indirectly, enter into a franchise, license, management, lease and/or other similar agreement for or begin construction or commence operation of a hotel, motel, inn, or similar facility at the Hotel Site under a Competitor Brand within one (1) year after termination, then you will pay us Liquidated Damages in an amount equal to $3,600 multiplied by the number of approved Guest Rooms at the Hotel.   14.4.1.2 If termination occurs after you begin the Hotel Work but before the Opening Date, you will pay us Liquidated Damages in an amount equal to $3,600 multiplied by the number of approved Guest Rooms at the Hotel, unless your failure to complete the Hotel Work was the result of Force Majeure.   14.4.1.3 If termination occurs after the Effective Date but before the second anniversary of the Opening Date, you will pay us Liquidated Damages in an amount equal to $3,600 multiplied by the number of approved Guest Rooms at the Hotel.   14.4.1.4 If termination occurs after the second anniversary of the Opening Date but before the final five (5) calendar years of the Term, you will pay us Liquidated Damages in an amount calculated by dividing the sum of the Monthly Royalty Fees due to us under this Agreement for the prior twenty-four (24) month period by twenty-four (24) and then multiplying the resulting sum by sixty (60).   14.4.1.5 If there are less than sixty (60) months remaining in the Term on the date of termination, you will pay us Liquidated Damages in an amount calculated by dividing the sum of the Monthly Royalty Fees due to us under this Agreement for the prior twenty-four (24) month period by twenty-four (24) and then multiplying the resulting sum by the number of months remaining in the Term.   14.4.2 Payment of Liquidated Damages. Payment of Liquidated Damages is due thirty (30) days following termination of this Agreement or on demand.   14.5 Actual Damages Under Special Circumstances. You acknowledge that the Liquidated Damages described in Subsection 14.4 may be inadequate to compensate us for additional harm we may suffer, by reason of greater difficulty in re-entering the market, competitive damage to the System or the Network, damage to goodwill of the Marks, and other similar harm, under the following circumstances:   14.5.1 within twelve (12) months of each other, five (5) or more franchise agreements for the Brand between yourself (or any of your Affiliates) and us (or any of our Affiliates) terminate before their expiration date as a result of a breach by you or your Affiliate; or   14.5.2 this Agreement terminates due to an unapproved Transfer either to a (i) Competitor or (ii) buyer that converts the Hotel to a Competing Brand within two (2) years from the date this Agreement terminates.   14.5.3 In the circumstances set forth in Subsection 14.5.1 and 14.5.2, we reserve the right to seek actual damages in lieu of Liquidated Damages.   14.6 Your Obligations on Termination or Expiration. On termination or expiration of this Agreement, you will:   14.6.1 immediately pay all sums due and owing to us or any of the Entities, including any expenses incurred by us in obtaining injunctive relief for the enforcement of this Agreement;

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  14.6.2 immediately cease operating the Hotel as a System Hotel and cease using the System;   14.6.3 immediately cease using the Marks, the Trade Name, and any confusingly similar names, marks, trade dress systems, insignia, symbols, or other rights, procedures, and methods. You will deliver all goods and materials containing the Marks to us and we will have the sole and exclusive use of any items containing the Marks. You will immediately make any specified changes to the location as we may reasonably require for this purpose, which will include removal of the signs, custom decorations, and promotional materials;   14.6.4 immediately cease representing yourself as then or formerly a System Hotel or affiliated with the Brand or the Network;   14.6.5 immediately return all copies of the Manual and any other Proprietary Information to us;   14.6.6 immediately cancel all assumed name or equivalent registrations relating to your use of any Mark, notify the telephone company and all listing agencies and directory publishers including Internet domain name granting authorities, Internet service providers, global distribution systems, and web search engines of the termination or expiration of your right to use the Marks, the Trade Name, and any telephone number, any classified or other telephone directory listings, Internet domain names, uniform resource locators, website names, electronic mail addresses and search engine metatags and keywords associated with the Hotel, and authorize their transfer to us; and   14.6.7 irrevocably assign and transfer to us (or to our designee) all of your right, title and interest in any domain name listings and registrations that contain any reference to our Marks, System, Network or Brand; notify the applicable domain name registrars of the termination of your right to use any domain name or Sites associated with the Marks or the Brand; and authorize and instruct the cancellation of the domain name, or transfer of the domain name to us (or our designee), as we specify. You will also delete all references to our Marks, System, Network or Brand from any Sites you own, maintain or operate beyond the expiration or termination of this Agreement.   15.0 INDEMNITY   15.1 Beginning on the Effective Date, you must indemnify the Indemnified Parties against, and hold them harmless from, all losses, costs, liabilities, damages, claims, and expenses, including reasonable attorneys' fees, expert fees, costs and other expenses of litigation arising out of or resulting from:   15.1.1 any breach by you of this Agreement, the Manual or the Standards;   15.1.2 any act or omission of you or your officers, employees, Affiliates, associates or agents in any way arising out of or relating to this Agreement;   15.1.3 any claimed occurrence at the Hotel including personal injury, death or property damage;   15.1.4 your alleged or actual infringement or violation of any patent, Mark or copyright or other proprietary right owned or controlled by third parties;   15.1.5 your alleged or actual violation or breach of any contract (including any group sales agreement for the System), any Law, or any industry standard;   15.1.6 any business conducted by you or a third party in, on or about the Hotel or Hotel Site and

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  15.1.7 your failure to comply with Subsection 17.13, including a breach of the representations set forth therein.   15.2 You do not have to indemnify an Indemnified Party to the extent damages otherwise covered under this Section 15 are adjudged by a final, non-appealable judgment of a court of competent jurisdiction to have been solely the result of the gross negligence or willful misconduct of that Indemnified Party, and not any of the acts, errors, omissions, negligence or misconduct of you or anyone related to you or the Hotel. You may not rely on this exception to your indemnity obligation if the claims were asserted against us or any other Indemnified Party on the basis of theories of imputed or secondary liability, such as vicarious liability, agency, or apparent agency, or our failure to compel you to comply with the provisions of this Agreement, including compliance with Standards, Laws or other requirements.   15.3 You will give us written notice of any action, suit, proceeding, claim, demand, inquiry or investigation involving an Indemnified Party within five (5) days of your knowledge of it. At our election, you will defend us and/or the Indemnified Parties against the same or we may elect to assume (but under no circumstance will we be obligated to undertake) the defense and/or settlement of the action, suit, proceeding, claim, demand, inquiry or investigation at your expense and risk.   15.4 If we think our respective interests conflict, we may obtain separate counsel of our choice. This will not diminish your obligation to indemnify the Indemnified Parties and to hold them harmless. You will reimburse the Indemnified Parties on demand for all expenses, including reasonable attorneys' fees, expert fees, costs and other expenses of litigation, the Indemnified Parties incur to protect themselves or to remedy your defaults. The Indemnified Parties will not be required to seek recovery from third parties or otherwise mitigate their losses to maintain a claim against you, and their failure to do so will not reduce the amounts recoverable from you by the Indemnified Parties.   15.6 Your obligations under this Section 15 will survive expiration or termination of this Agreement.   16.0 RELATIONSHIP OF THE PARTIES   16.1 No Agency Relationship. You are an independent contractor. Neither Party is the legal representative or agent of the other Party nor has the power to obligate the other Party for any purpose. You acknowledge that we do not supervise or direct your daily affairs and that you have exclusive control over your daily affairs. You expressly acknowledge that the Parties have a business relationship based entirely on, and defined by, the express provisions of this Agreement and that no partnership, joint venture, agency, fiduciary or employment relationship is intended or created by reason of this Agreement.   16.2 Notices to Public Concerning Your Independent Status. All contracts for the Hotel's operations and services at the Hotel will be in your name or in the name of your Management Company. You will not enter into or sign any contracts in our name or any Entity's name or using the Marks or any acronyms or variations of the Marks. You will disclose in all dealings with the public, suppliers and third parties that you are an independent entity and that we have no liability for your debts.   17.0 MISCELLANEOUS   17.1 Severability and Interpretation.   17.1.1 if any provision of this Agreement is held to be unenforceable, void or voidable, that provision will be ineffective only to the extent of the prohibition, without in any way invalidating or affecting the remaining provisions of this Agreement, and all remaining provisions will continue in effect, unless the unenforceability of the provision frustrates the underlying purpose of this Agreement. If any provision of this Agreement is held to be unenforceable due to its scope, but may be made enforceable by limiting its scope, the provision will be considered amended to the minimum extent necessary to make it enforceable.

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  17,1.2 This Agreement will be interpreted without interpreting any provision in favor of or against either Party by reason of the drafting of the provision, or either of our positions relative to the other.   17.1.3 Any covenant, term or provision of this Agreement that provides for continuing obligations after the expiration or termination of this Agreement will survive any expiration or termination.   17.2 Governing Law, Jurisdiction and Venue.   17.2.1 The Parties agree that, except to the extent governed by the United States Trademark Act of 1946 (Lanham Act; 15 U.S.C.  lj 1050 et seq.), as amended, this Agreement will be governed by the laws of the State of New York without recourse to New York choice of law or conflicts of law principles. Nothing in this Section is intended to invoke the application of any franchise, business opportunity, antitrust, implied covenant, unfair competition, fiduciary or any other doctrine of law of the State of New York or any other state that would not otherwise apply absent this Subsection 17.2.1.   17.2.2 The Parties agree that any action brought pursuant to this Agreement or the relationship between them must be brought in the U.S. District Court for the Eastern District of Virginia, in Alexandria, Virginia, or if that court lacks subject matter jurisdiction, then in a court of competent jurisdiction whose jurisdiction includes either Fairfax County, Virginia or New York, New York, or in the county and state where the Hotel is located. You consent to personal jurisdiction and venue in each of these jurisdictions and waive, and agree not to assert, move or otherwise claim that the venue in any of these jurisdictions is for any reason improper, inconvenient, prejudicial or otherwise inappropriate.   17.3 Exclusive Benefit. This Agreement is exclusively for our and your benefit, and none of the obligations of you or us in this Agreement will run to, or be enforceable by, any other party (except for any rights we assign or delegate to one of the Entities or covenants in favor of the Entities, which rights and covenants will run to and be enforceable by the Entities or their successors and assigns) or give rise to liability to a third party, except as otherwise specifically set forth in this Agreement.   17.4 Entire Agreement. This Agreement and all of its attachments, documents, schedules, exhibits, and any other information specifically incorporated into this Agreement by reference (including any representations in any franchise disclosure document that we provided to you for the Brand in connection with the offer of this License) will be construed together as the entire agreement between you and us with respect to the Hotel and any other aspect of our relationship and will supersede and cancel any prior and/or contemporaneous discussions or writings between you and us.   17.5 Amendment and Waiver.   17.5.1 No change, termination, or attempted waiver or cancellation of any provision of this Agreement will bind us unless it is in writing, specifically designated as an amendment or waiver, and signed by one of our officers. We may condition our agreement to any amendment or waiver on receiving from you, in a form satisfactory to us, an estoppel and general release of claims that you may have against us, the Entities, and related parties.   17.5.2 No failure by us or by any of the Entities to exercise any power given us under this Agreement or to insist on strict compliance by you with any of your obligations, and no custom or practice at variance with the terms of this Agreement, will be considered a waiver of our or any Entity's right to demand exact compliance with the terms of this Agreement.   17.6 Consent; Business Judgment.   17.6.1 Wherever our consent or approval is required in this Agreement, unless the provision specifically indicates otherwise, we have the right to withhold our approval at our option, in our business judgment, taking into consideration our assessment of the long-term interests of the Systemoverall. We may withhold any and all consents or approvals required by this Agreement if you are in default or breach of this Agreement. Our approvals and consents will not be effective unless given in writing and signed by one of our duly authorized representatives.

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  17.6.2 You agree not to make a claim for money damages based on any allegation that we have unreasonably withheld or delayed any consent or approval to a proposed act by you under the terms of this Agreement. You also may not claim damages by way of set- off, counterclaim or defense for our withholding of consent. Your sole remedy for the claim will be an action or proceeding to enforce the provisions of this Agreement by specific performance or by declaratory judgment.   17.7 Notices. Notices under this Agreement must be in writing and must be delivered in person, by prepaid overnight commercial delivery service, or by prepaid overnight mail, registered or certified, with return-receipt requested. Notices to us must be sent to 7930 Jones Branch Drive, Suite 1100, McLean, VA 22102, ATTN: General Counsel. We will send notices to your address set forth in the Addendum. If you want to change the name or address for notice to you, you must do so in writing, signed by you or your duly authorized representative, designating a single address for notice, which may not be a P.O. Box, in compliance with this Subsection. Notice will be deemed effective on the earlier of: 1) receipt or first refusal of delivery; 2) one (1) day after posting if sent via overnight commercial delivery service or overnight United States Mail; or 3) three (3) days after placement in the United States mail if overnight delivery is not available to the notice address.   17.8 General Release. With the exception of claims related to representations contained in the franchise disclosure document for the Brand, you, on your own behalf and on behalf of, as applicable, your officers, directors, managers, employees, heirs, administrators, executors, agents and representatives and their respective successors and assigns hereby release, remise, acquit and forever discharge us and the Entities and our and their respective officers, directors, employees, managers, agents, representatives and their respective successors and assigns from any and all actions, claims, causes of action, suits, rights, debts, liabilities, accounts, agreements, covenants, contracts, promises, warranties, judgments, executions, demands, damages, costs and expenses, whether known or unknown at this time, of any kind or nature, absolute or contingent, existing at law or in equity, on account of any matter, cause or thing whatsoever that has happened, developed or occurred relating to this Agreement or the relationship between you and us. This release will survive the termination of this Agreement.   17.9 Remedies Cumulative. The remedies provided in this Agreement are cumulative. These remedies are not exclusive of any other remedies that you or we may be entitled to in case of any breach or threatened breach of the terms and provisions of this Agreement.   17.10 Economic Conditions Not a Defense. Neither general economic downturn or conditions nor your own financial inability to perform the terms of this Agreement will be a defense to an action by us or one of the Entities for your breach of this Agreement.   17.11 Representations and Warranties. You warrant, represent and agree that all statements in your franchise application in anticipation of the execution of this Agreement, and all other documents and information submitted to us by you or on your behalf are true, correct and complete as of the date of this Agreement. You further represent and warrant to us that:   17.11.1 you have independently investigated the risks of operating the Hotel under the Brand, including current and potential market conditions and competitive factors and risks, and have made an independent evaluation of all such matters and reviewed our franchise disclosure document, if applicable;   17.11.2 neither we nor our representatives have made any promises, representations or agreements other than those provided in the Agreement or in our franchise disclosure document provided to you in connection with the offer of this Agreement, if applicable, and you acknowledge that you are not relying on any promises, representations or agreements about us or the franchise not expressly contained in this Agreement in making your decision to sign this Agreement;

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  17.11.3 you have the full legal power authority and legal right to enter into this Agreement;   17.11.4 this Agreement constitutes a legal, valid and binding obligation and your entry into, performance and observation of this Agreement will not constitute a breach or default of any agreement to which you are a party or of any Law;   17.11.5 if you are a corporation, limited liability company, or other entity, you are, and throughout the Term will be, duly formed and validly existing, in good standing in the state in which you are organized, and are and will be authorized to do business in the state in which the Hotel is located; and   17.11.6 no Equity Interest has been issued, converted to, or is held as, bearer shares or any other form of ownership, for which there is no traceable record of the identity of the legal and beneficial owner of such Equity interest.   You hereby indemnify and hold us harmless from any breach of these representations and warranties. These warranties and representations will survive the termination of this Agreement.   17.12 Counterparts. This Agreement may be signed in counterparts, each of which will be considered an original.   17.13 Sanctioned Persons and Anti-bribery Representations and Warranties.   17.13.1 You represent, warrant and covenant to us and the Entities, on a continuing basis, that:   17.13.1.1 you (including your directors and officers, senior management and shareholders (or other Persons) having a controlling interest in you), and any Controlling Affiliate of the Hotel or the Hotel Site are not, and are not owned or controlled by, or acting on behalf of, a Sanctioned Person or, to your actual knowledge, otherwise the target of Trade Restrictions;   17.13.1.2 you have not and will not obtain, receive, transfer or provide any funds, property, debt, equity, or other financing related to this Agreement and the Hotel or Hotel Site to/from a Person that qualifies as a Sanctioned Person or, to your actual or constructive knowledge, is otherwise the target of any applicable Trade Restrictions;   17.13.1.3 you are familiar with the provisions of applicable Anti-Corruption Laws and shall comply with applicable Anti-Corruption Laws in performance of your respective obligations under or in connection with this Agreement;   17.13.1.4 any funds received or paid in connection with entry into or performance of this Agreement have not been and will not be derived from or commingled with the proceeds of any activities that are proscribed and punishable under the criminal laws of the United States, and that you are not engaging in this transaction in furtherance of a criminal act, including acts in violation of applicable Anti- Corruption Laws;   17.13.1.5 in preparation for and in entering into this Agreement, you have not made any Improper Payment or engaged in any acts or transactions otherwise in violation of any applicable Anti-Corruption Laws, and, in connection with this Agreement or the performance of your obligations under this Agreement, you will not directly or indirectly make, offer to make, or authorize any Improper Payment or engage in any acts or transactions otherwise in violation of any applicable Anti-Corruption Laws;

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  17.13.1.6 except as otherwise disclosed in writing to us, neither you, nor any of your direct or indirect shareholders (including legal or beneficial shareholders), officers, directors, employees, agents or other Persons designated by you to act on your behalf or receive any benefit under this Agreement, is a Government Official. Furthermore, no Government Official has or will have any existing or inchoate legal or beneficial interest in this Agreement or any payments to be made under this Agreement. You will shall notify us immediately in writing in the event of a change in the Government Official status of any such persons;   17.13.1.7 any statements, oral, written, electronic or otherwise, that you submit to us or to any third party in connection with the representations, warranties, and covenants described in this Subsection 17.13 are truthful and accurate and do not contain any materially false or inaccurate statements;   17.13.1.8 you will make reasonable efforts to assure that your respective appointed agents in relation to this Agreement comply in all material respects with the representations, warranties, and covenants described in this Subsection 17.13; and   17.13.2 You will notify us in writing immediately on the occurrence of any event which would render the foregoing representations and warranties of this Subsection 17.13 incorrect.   17.14 Attorneys' Fees and Costs. If either Party is required to employ legal counsel or to incur other expenses to enforce any provision of this Agreement or defend any claim by the other, then the prevailing party in any resulting dispute will be entitled to recover from the non- prevailing party the amount of all reasonable fees of attorneys and experts, court costs, and all other expenses incurred in enforcing such obligation or in defending against such claim, demand, action, or proceeding.   17.15 Interest. Any sum owed to us or the Entities by you or paid by us or the Entities on your behalf will bear interest from the date due until paid by you at the rate of eighteen percent (18%) per annum or, if lower, the maximum lawful rate.   17.16 Successors and Assigns. The terms and provisions of this Agreement will inure to the benefit of and be binding on the permitted successors and assigns of the Parties.   17.17 Our Delegation of Rights and Responsibility. In addition to the rights granted to us in Section 4 and Subsection 13.1 of this Agreement, we reserve the right to delegate to one or more of the Entities at any time, any and all of our rights, obligations or requirements under this Agreement, and to require that you submit any relevant materials and documents otherwise requiring approval by us under this Agreement to such Entity, in which case approval by such Entity will be conclusively deemed to be approval by us. During the period of such delegation or designation, any act or direction by such Entity with respect to this Agreement will be deemed the act or direction of us. We may revoke any such delegation or designation at any time. You acknowledge and agree that such delegation may result in one or more of the Entities which operate, license, or otherwise support brands other than the Brand, exercising or performing on our behalf any or all rights, obligations or requirements under this Agreement or performing shared services on our behalf.   18.0 WAIVER OF JURY TRIAL AND PUNITIVE DAMAGES   18.1 IF EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN THE PARTIES (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY.   18.2 IN ANY DISPUTE BETWEEN THE PARTIES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY BREACH OF THIS AGREEMENT, OR THE RELATIONSHIP BETWEEN THE PARTIES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ALL PARTIES WAIVE ANY RIGHT THEY. MAY HAVE TO PUNITIVE OR EXEMPLARY DAMAGES FROM THE OTHER.

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  NOTHING IN THIS SECTION LIMITS OUR RIGHT OR THE RIGHT OF AN INDEMNIFIED PARTY TO BE INDEMNIFIED AGAINST THE PAYMENT OF PUNITIVE OR EXEMPLARY DAMAGES TO A THIRD PARTY. THE PARTIES ACKNOWLEDGE THAT LIQUIDATED DAMAGES PAYABLE BY YOU UNDER THIS AGREEMENT (WHETHER PRE-OPENING LIQUIDATED DAMAGES OR LIQUIDATED DAMAGES FOR EARLY TERMINATION) ARE NOT PUNITIVE OR EXEMPLARY DAMAGES.   19M INTENTIONALLY DELETED

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  ADDENDUM TO FRANCHISE AGREEMENT   Effective Date: March 21, 2014 (closing date)     Franchisor Name: HOMEWOOD SUITES FRANCHISE LLC, a Delaware limited liability company     Brand: Homewood Suites by Hilton (excluding Home2 Suites by Hilton and any other brands or product lines containing Suites, Hilton or the by Hilton tagline in the name)   Initial Approved Hotel Name (Trade Name): Homewood Suites by Hilton Stratford     Principal Mark in Brand: Homewood     Franchisee Name and Address ARC Hospitality TRS Stratford, (Attn: Principal Legal Correspondent): LLC 405 Park Avenue New York, New York 10022 Attention: Jesse Galloway Phone: (212) 415-6500 E-mail: juallowavRarIcap.com       Franchisor will also provide a courtesy copy of any notice, for informational purposes only, to:       Crestline Hotels & Resorts, LLC   3950 University Drive, Suite 301   Fairfax, Virginia 22030   Attention: CEO and General Counsel   E-mail: james.carrollcrestlinehotels.com   pierre.donahueacrestlinehotels.com       Any failure by Franchisor to provide a courtesy copy of any notice will not constitute a breach of this Agreement nor will it affect the validity of any notice that is provided to Franchisee pursuant to Subsection 17.7 of this Agreement.     Address of Hotel: 6905 Main Street   Stratford, Connecticut 06614   Initial Number of Approved Guest Rooms: 135     Plans Submission Dates:   Preliminary Plans: n/a     Design Development (50%) Plans and Specifications: n/a     Final (100%) Plans and Specifications: n/a     Construction Commencement Date: n/a

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  Construction Work Completion Date: n/a     Renovation Commencement Date: The Effective Date     Renovation Work Completion Date: In accordance with the attached PIP     Expiration Date: at midnight on the last day of the month fifteen (15) years from the Effective Date     Monthly Fees:   Monthly Program Fee: Four percent (4%) of the Hotel's Gross Rooms Revenue for the preceding calendar month. The Monthly Program Fee is subject to change by us. Any change may be established in the Standards, but the rate will not exceed the standard Monthly Program Fee as of the Effective Date plus one percent (1%) of the Hotel's Gross Rooms Revenue during the Term     Monthly Royalty Fee: Five percent (5%) of the Hotel's Gross Rooms   Revenue for the preceding calendar month   Additional Requirements/Special Provisions:   ·  The parties acknowledge that the Hotel is an existing System Hotel that was authorized to open under the Brand before the Effective Date.   ·  Obligations of Prior Franchisee. You acknowledge and agree that you are directly responsible for, and will pay on demand, all fees and charges due and owing us and the Entities related to the prior franchise agreement for the Hotel if any such fees and charges remain outstanding as of or accrue after the Effective Date of this Agreement.   ·  Section 1, Definitions of Opening Date and Publicly Traded Equity Interest: Modified   ·  Subsection 5.1.25: Modified   ·  Subsection 8.1: Modified   ·  Subsection 11.2.1: Modified   ·  Subsections 14.4.1.1. and 14.4.1.3: Modified   ·  Section 19 - Acknowledgment of Exemption: Intentionally Deleted   Your Ownership Structure: See Attached Schedule 1   Ownership Structure of Affiliate Fee Owner or Lessor/Sublessor of the Hotel or Hotel Site: See Attached Schedule 2

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    IN WITNESS WHEREOF, the Parties have executed this Agreement, which has been entered into and is effective as of the Effective Date set forth above.   FRANCHISEE:   FRANCHISOR:       ARC HOSPITALITY TRS STRATFORD LLC,  a Delaware limited liability corn an   HOMEWOOD SUITES FRANCHISE LLC,  a Delaware limited liability company           By: /s/ Jesse C. Galloway   By: /s/ James Holthouser           Name: Jesse C. Galloway   Name: James Holthouser   Authorized Signatory     Authorized Signatory           Title:         Executed on: 3/14/14   Executed on: ( Lir

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  NEW YORK ADDENDUM TO FRANCHISE AGREEMENT   Notwithstanding anything to the contrary set forth in the Franchise Disclosure Document or Franchise Agreement, the following provisions will supersede and apply to all franchises offered and sold under the laws of the State of New York:   1. Subsection 9.6 of the Franchise Agreement requiring you to consent to the entry of an injunction is amended to provide that you consent to the seeking of such an injunction.   2. Subsection 17.8 is amended to provide that no release language set forth in the Franchise Agreement will relieve Franchisor or any other person, directly or indirectly, from liability imposed by the laws of the State of New York concerning franchising.   FRANCHISEE: FRANCHISOR:     ARC HOSPITALITY TRS STRATFORD,  LLC, a Delaware limited liability company HOMEWOOD SUITES FRANCHISE LLC, a Delaware limited liability company     By: Name: Title: Executed on:           By: /s/ Jesse C. Galloway   By:           Name: Jesse C. Galloway   Name:           Title: Authorised Signatory   Title:  Authorized Signatory             3/i4/11 4

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  NEW YORK ADDENDUM TO FRANCHISE AGREEMENT   Notwithstanding anything to the contrary set forth In the Franchise Disclosure Document or Franchise Agreement, the following provisions will supersede and apply to all franchises offered and sold under the laws of the State of New York:   1. Subsection 9.6 of the Franchise Agreement requiring you to consent to the entry of an Injunction is amended to provide that you consent to the seeking of such an injunction.   2. Subsection 17.8 is amended to provide that no release language set forth in the Franchise Agreement will relieve Franchisor or any other person, directly or indirectly, from liability imposed by the laws of the State of New York concerning franchising.   FRANCHISEE: FRANCHISOR:     ARC HOSPITALITY TRS STRATFORD, LLC, a Delaware limited liability company HOMEWOO a Delawar UITES FRANCHISE LLC, II. Nifty company   By:     By: /s/ James Holthouser           Name:     Name: James Holthouser       Title:   Title: Authorized Signatory   Executed on:











  EXHIBIT A PRODUCT IMPROVEMENT PLAN   Product Improvement Plan   Prepared for: Homewood Suites by Hilton Stratford, CT (InnCotle: BORCT, Facility ED:41017)   6905 Main Street, Stratford, Connecticut, United States   To be relicensed as a Homewood Suites by Hilton   HOMEWOOD SUITES — maim.   By Kenneth-Savage   Inspection Date: Jan4-872013 FINAL PIP REVISION DATE-. Sep-08-2013 by Roy Johnson   BrataManauement Approval   Final PIP Approval Date : Sep-08-2013   Final FLA PIP Approval Signature: /s/ [ILLEGIBLE]   PIP Contact   Corinne Hight Email: Corinne.hight@hilton.com Phone: 901-374-6044









  EXHIBIT A - PRODUCT IMPROVEMENT PLAN   Property Information   Open Date: 2005-02-14 Last Renovation: 2009: Corridor, Lodge and Suite carpet Parking: Asphalt surface parking lot Whirlpool: Indoor Airport Van: None Number Floors: 3 Food Service Facilities: Pantry Meeting Space: 4000 sq ft 2 Meeting Rooms Business Center: Yes Exercise Room: Yes. Precor renovated @ 235 sq ft Other Recreation: None Retail Outlets: None Guest Laundry: Yes Number Of Guest Rooms: 135 Guest Room Size Parlor: 20'7' X 14'5 Guest Room Mix:   Typical King: 52 Typical DID: 59     Guest Bathroom:   Size: 80' X 7'10 Door Width: 36' Tub Surround: acrylic one-piece unit Floor: 4 X 4 ceramic tile ' Vanity: Wood-front base with granitetop, Water Closet: Tank-type'. elongated .b6w1 with open-front seats     HVAC System:   100% Makeup Air: ,.- Yes Public Areas: Packaged units Guestrooms: VrA Cs tiyithOgital thermostats     Elevators:       High Speed Internet:   Public Areas: AT&T Meeting Space: - AT&T Guestrooms: AT&T     Telephone System:









  EXHIBIT A - PRODUCT IMPROVEMENT PLAN   PLEASE NOTE: Key information about the terms and effectiveness of this Property Improvement Plan is set out at the end of the document.   General   #   Active Date   Scope of Work   Finish Date                       Notice to owner. All hotels must comply with applicable local, state, and federal accessibility requirements. This PIP does not necessarily include any work that may be required for compliance with Title 111 of the Americans with Disabilities Act (ADA). lit addition, if a Franchise Agreement or a Management Agreement for a hotel constructed for first occupancy after January 26th 1993 is executed after March 30th 2011 Hilton Worldwide will require the owmrr to conduct a self-survey (provided by Hilton Worldwide) of the hotel's guestrooms and parting for compliance with ADA Title III requirements. Any areas of non-compliance will need to be addressed within five to seven years (dependi on the item in question) as a condition of the franchise or management agreeMent.

  Per Brand Standards

  BRAND STANDARDS   #   Active Date   Scope of Work   Finish Date               1       40''113SIREISITz;     2       2502.00- Brand Standard - Take Flight - Homewood Suites `:Hilton has developed a comprehensive hotel refresh concept called 'Tat:C....Plight A Style Guide will be available in August 2013. Take Flight impacts iteritS such as the front entrance; interior sigrrage; FT&B, lighting, flooring and wall finishesin the lobby and lodge including the front desk-4114e shop, and business tenter layout and design; outdoor- kitchen, (pool, patih.:.And gritting areas)„headboards, back lit vanity mina, and other cosmetic updates the suites. Details will be posted on wwwhiltonworldwide.conu'design as they beCpme available. A certified and approved designer or design Finn ,BUST be &;i rutted and retained. For further information, please contact RoylOhnson

  12 Months

3       Brand Standard- D.,„igrirevi6W Strbini.ttals are cg.-for all replacements and new products prior to purchase and installation Addition to any binders, fabrics, etc., an electronic copy (via a noh- retiirnabl:CD) is required. Contact rsigitreview@hiltonsom for filither inforination.

  180 Days

4       Support Rules - Hotel smut net inslalllile-over-tile in any areas of the hotel. Old tile must be completely reihoved b.)fore new tile in installed-   Per Brand Standards 5       Support Rule.5:11eitel iiiiiandt:install wall vinyl over existing wall vinyl in any areaof the hotel. Old wall vind must be completely removed before new wall vinA:is installed...   Per Brand Standards 6       Suppoitrgules - All hotels undergoing a change of ownership or license renewal PIP will tie required to 'complete a one-time revenue management consultation and analysis.   12 Months

        Th1sis a fee bid service and will be performed by the Revenue Management 01,irsolidation Center. For additiorml details contact RMCCinfoOlton_com

7       P4Q5.02 Public Area Recycling - Each floor, second floor and above, must have integrated and/or coordinating recycling station, including the trash receptacle, loc'ated near the ice/vendirg areas. If space is limited, relocation to elevator lobby is Omitted, Required by 12/31/13 per Brand Standards

  Per Brand Standards

8       902.00 — In-suite Recycling - Provide a decorative in-suite recycling container at / near the work surface in each suite. The designated recycling container must be a t lqt container minimum_ If trash can is offered at the work surface, the recycling and trash can must match. Blue recycling containers are prohibited. Required by 12/31/13 per Brand Standards

  Per Brand Standards

9       504.03 - Interior Signage - Replace all existing interior, pool, and sport court signage. Install new brand required signage package. (Refer to the Take Flight Design Guide.)   12 Months

10       2500.00 - This document was updated 09/0812013 with the latest Brand Initiatives and with any applicable items from the latest Quality Assurance visit dated arest2013   12 Months











  EXHIBIT A - PRODUCT IMPROVEMENT PLAN   11       902.02 Brand Standard - Top of Bed - The Homewood Suites brand is currently launching a turn-key, bed skirt & coverlet program that is requried brand-wide. All hotels across the brand are required to convert to the approved program (50% of inventory in 2013; remaining 50% in 2014).

  Per Brand tandards

12       2505.02 Take Plight — Public Space - All Take Flight elements in the public area must occur at once; they cannot beadded individually overtime. Refer to the Take Flight Design Guide for information on design intent and design requirements

  12 Months

  COMMERCIAL FACILITIES   #   Active Date   Scope of Work   Finish Date               13       2514.03 D - Offices - Replace all carpet (wont/discolored). Install new carpet and carpet pad. Vinyl base is acceptable in areas that cannot be viewed by guests.   12 Months

14       2513.01 B - Offices - Provide door viewer at the main office door entry.   12 Months 15       2513.01 B - Offices - Provide key-punch lock at the main office door entry.   17. Nlonths 16       2509.03 A - Corridors - Replace all corridor carpet and carpet pad Onafted,w env.. Install new 6 wood or 4 carpet base.   24 Months

17       2509.03 A - Corridors - Replace all stairwell carpet and carpet pad (matterlAvorn)Install new 4' carpet base.   12 Months

18       2514.03 A - Corridors - Replace all corridor tile; both at eleVaterlandingiand at , all first floor secondary entrances into the Lodge and Suites(s)corridors. Milan/ new 18' X 18' (minimum) decorative file flooring and 6litiatching base. Rectangular shaped tile is acceptable (plank shaped and no snialler than 3 X'24 and no larger than 9' X 36.

  12 Months

19       2500.00 - Corridors - Replace entrance doors to Pool Area. Ensue both sets of entrance doors are in a like-new condition   12 Months

20       2509.00 - Corridors - Install solid surfa0material or granite window sills.   12 Months 21       2509.03 - Corridors - Continue repairs to-3rd floor corrid6t ceilings. Ensure all ceilings have a consistent appearance.'''-/-..-

22       2509.03 A - Corridors - Replace all dantagecliscaried door hardware at secondary   12 Months       entrances into building.-     23       2500.00 - Elevators -,Refinish 6xtc der doers of elevators to remove scarring. All doors are to be41, likemee, coridilion 9r replaced.   12 Months

24 '       2509.03 Corridor' window treatmant - Replace window treatment with operable sheers and decorative rod and hard vane. Sheers mast be pleated or rippled to double fulinev,,,-.:   12 Months

25       2502402.1. Great Roorn/Lodge - Replace all carpet and carpet pad. (Note: flooring:Orid floorifighaositions will b impacted by Take Flight)   12 Months

26       2599.03 —1421iy/Loclge window treatment - Replace window treatment with operable shell-tiaddecorath'e rod and hardware. Sheers must be pleated or rippled to double 'fullness   12 Months

27       -:::2502.02 - Lobby/Lodge Flooring - Install the flooring in front of the fireplace, at the.frod desk, in the suite shop, and in the pantry. Install carpet/pad in the lodge (cliaing.and lounge zones) and home office. (Refer to the Take Flight Design Guide for flooring transitions.)

  12 Months

28       2502,04 - Front Desk - Install a stand-alone, pod, or open ended front desk with ADA shelf. Remove duck art and install a decorative back-wall panel systems]. Match hie flooring with suite shop and lobby (Refer to the Take Flight Design Guide)

  12 Months

29       2502.02 Lodge - Implement the fake Flight lobby and lodge concept by installing natural finish accents and prescribed furnishings to create the connect, dining, and lounge zones.Take Flight also includes the front desk, suite shop, pantry, integrated trashirecycle/busqng, home office, front porch, and outdoor _kitchen areas, (Refer to the Take Flight Design Guide)

  12 Months











  EXHIBIT A — PRODUCT IMPROVEMENT PLAN   30       2502.02 - Lobby/Lodge Furniture — In the lobby, install the curved sofa and elliptical rug. In the Lodge, outfit the dining area with tables and chairs of different styles, finishes, and heights. Include the signature wing table and pendants in the dining zone.Install the two-sided sectional and lighting to help define the separation between the dining and lounge zone. On the lounge side, outfit with tea- height tables and lounge chairs. Incorporate conxr banquette(s) with pendant lighting. (Refer to the Take Flight Design Guide

  12 Months

31       2501.00 - Exterior - Paint exterior with accent oclor(s) as outlined in the Exterior Design Guidelines (posted on www,hiltonworldwi&conitdesign) .   12 Months

32       2501.02 F - Landscape - Add special landscaping or fencing to screen out transformers, gas meters, HVAC units etc., from guest view without hindering operation or routine maintenance.   12 Months

33       2500.00 - Parking Lot - Repair any cracked/damaged areas in the parking lot. Re-seal and re-stripe the parking lot.   12 Months

34       2513.09 C - Exterior - Install painted steel pipe bollards around the container to prevent damage to walls.  12 Months 35       2500.00 Exterior - Ensure that all building sigrrage is updated to the current Homewood standards. 'Hilton. trademark sign is required on all building-mounted signage.   12 Months

36       2513.09 —Trash collection Area- If existing trash collectionfdompstel- enclostire cannot a cconrinothte recycling bins, the dampster and clumpster pad 'Must be enlarged to accommodate the additional NUS,.

  12 Months

37       2501.04.D — Exterior - Secondary Entrances - Upgrade secondary entrances to include a covered area that matches the building andfor poste coeliere in des; ' t and finish. Install upscale decorative lighting, along with.' a decoratiVe/upsc trash and ash receptacle similar to the main entry.Rker`to the Eakferior Design Guidelines and Take Flight Design Guidelines

  12 :Months -

38       2501.05. Exterior - Front Entrance / Front Porch.. a. Provide ceiling recrossed cans and decorative upscale ivaIliconates b. Provide outdoor seating for two minim:int, adjacent to the prinuaiy entrance. Seating fabrication and style must be similar to the lodge patioseating; park benches are not allowed.ir- :H:,::::!„,.r. e. Provide a decorative combo trash, recieling, and ash reeeptade at the main entrance. The unit must include a hood to piaatect trash from weather. Refer to the Take Flight Design Guide for design intent.—.:: ,..2. d. Provide three decorative plardOs e.: varying sizes (2501.02)

  12 Months

39       2501,04 —Exterior - Building Finish ,,:ladd secondary finish to the exterior as outlined in the Exterior Design guir',31'F,Xteritif building finish must be a combination of two Or more of tly.-rollowini materials: HIES & brick; EIFS & Stone; or stone and litelc. Re feu IO: I he Exterior Design Guidelines

  12 Months

40       2507,00 -Bu ,: ' s Center '; Provide all components of the Global Business Center Solution.   Dee-31-2013 41       2507.05A - BmAriessCenter - Install 6 decorative wood base to match the wood base inlhe lobby.''.. :-   12 Months 42       2547.05 Al`130.sinest: Center - Replace cabinets and countertops New wall and ba se.cabinets inust be funrihtre quality with all exposed surfaces made of wood. IX.-.Sk lop must be Intl:nal or engineered stone or better and 30 above the finished floor. Upper cabinets must be provided for supply storage. Under cabinet lighting is required. Note: This area will be impacted by 'Take Flight.

  12 Months

43       2514.03 - Guest Laundry - Replace the floor tile. Install new 18' x 18 (tnirilmurn) decorative tile flooring and matching 6 base. Rectangular gaped tile is acceptable (plank shaped and no smaller than 3 x 24 and no larger than 9 x 36').

  12 Months

44       2500.00 - Guest Laundry - Install an electronic entry loch. The deadbolt function must be disabled.   12 Months 45       2506.02 G Guest Laundry - Install a minimum 36 x 22 innnan,ent counter with12             a laminate top 34 triaminum above the finished floor. Provide two stools or chairs as seatarg.   Months 46       2506.02 F - Guest Laundry - Install vinyl wall covering.12   Months 47       2506.02 I - Guest Laundry - Conceal all electrical and plumbirg connections 12 behind the connected equipment. (Remove lattice panel)   Months

48       2503.00 F - Public Restrootns - Remove the combination paper towel dispenser 12 and waste receptacle recsed into tire wall. Install an automated touch-less paper dispenser and a free-standing decorative trash receptacle.

  Months











  EXHIBIT A - PRODUCT IMPROVEMENT PLAN   49       2514.03 A - Public Restrooms - Replace the floor tile. Install new 18 x 18' (minimtun) decorative tile flooring and matching 6 base. Rectangular shaped tile is acceptable (plank shaped and no smaller than 3 x 24 and no larger than 9 x 36').

  12 Months

50       250100 D - Public Restrooms - Replace all vinyl wall covering and wall tile. Ceramic, porcelain, or stone the at fall height is required at wet/phunbing walls.   12 Months

51       2503.00 E - Public Restrooms - (Pool Area) - Replace all msted/corroded chrome fixtures in restrooms.   12 Months 52       2506.01 Suite Shop - Install granite on all display counters. This area will be impacted by Take Flight'.   12 Months 53       2514.03 A - Suite Shop - Replace the floor tile. Install new 18' x 18 (minimum) decorative tile flooring and matching 6 base. Rectangular shaped tile is acceptable (plank shaped and no smaller than 3 x 24 and no larger than 9' x 36). Note: This area will be impacted by 'Take Flight.

  12 Months

54       2506.01 E - Suite Shop - Install vinyl wall covering.   12 Months 55       2506.01 — Suite Shop—Install the 'Take Flight suite shop b openim up the space to the front desk/lobby, flooring, accent wall vinyl, updated millwork, focal table w/pridant, refrigeration units and graphics. (Refer to the Take Flight Design



        Guide).' .   12 Months 56       2503.00 — Public Restrooms —Provide commercial grade faucets that are. , touchless. All faucets must be plated brass with replaceable cartridges,` and: ::,.....

        manufaetured by nationally lorown manufacturers. All fixtures inusehe lcm-110iv.            ...-.             type   12 Months 57       2507.05 - Busimiss Center - Implement the 'Take Flight home office -e-Once]il.             (Open tip the apace —removing door and partial wall, install'riattatation7 printer             FCIlinsula w/pendant, decorative panel/divider, accent wall vinyl .,0.1 tura sting :::::             flooring, etc. Refer to the Take Flight Design Guido);` -,:r. -,r,!:.1   12 Months i,.'         .., —.....,—.     55       2504.05 H - Pantry - Replace the breakfast area countertops. InstalTgratiita at the             countertops at the cabinets and island.,..,:,             Ice wells must be built-in. Note: This area will be impacted by Take Flight'.   12 Months 59       254405 K - Pantry - Replace the breakfast area cabinets' Install new decorative millwork base and wall cabinets. New cabinets must incorporate under-cabinet lighting as well as accent lighting in upper Cabinets withglass doors. All cabinet lighting must be on a dedicated, switch.

  12 Months

60       2504.05 0- Pantry - Replace thetile, Install iiew 18 x 18 (minimum)             decorative tile flooring and ntitchini.071aase,_ReCtangular shaped his is acceptable (plank shaped and nii,smaller than.3. x.24 and no larger than 9 x 36). Note: This aria will la impacted by rTake Flight.

  12 Months

61       2504.06 - Pantry - CoOidinale/update pantry serving area finishes with updated Take Flight lodge renctroninelgding updates such as pendant over island. (Refer tothel4e flight Dkrign Gifide)   12 Months

              62       ; J:17,1toardroorn - provide a remanent conference table to seat a minimum I.-opt:ix Table ftilistliave an electrical power source, telephone outlet, and AV conneetiOns in potrup boxes on the top of the table.

  12 Months

63       2507.03 - Badfdt66rn - Provide, a built-in buffet counter, 48x24 ntininnun;   12 Months 64       247.63 - Boddroom - Provide artwork appropriate for space available.   12 Months 65       2547.03 - Boardroom - provide a ceiling recessed, electronically operated screen. Controls must be near the lighting controls.   12 Months

66       250,03 - Boardroom - Provide a 52 well mounted flat panel TV with connectivity to a MATV system and to boardroom table connection.   12 Months

67       2507.03 - Board room - Replace Nvalll vinyl. The vinyl is damaged at the windows. Repair all moisture damage and eliminate source.   12 Months

              68       2543.07 A - Activity Court - Install an activity court or alternative recreational feature approved by the brand. This is a required facility.   12 Months

69       2508.03 P - Pool Area - A saline-based generator system must be used for swimming pool water pitrification. The system must comply with all loc-al codes and meet all local health department regulatiorn. The system must be NSF-54 and ULt 031 tested and certified (or the equivalent) and sized as per Loral and State Department of Environmental Health guidelines.

  12 Months

70       2501.03 3- Rear Porch/Patio - Provide a mirinium of Iwo outdoor gas or charcoal grills (Outdoor kiitchen will be part of Take Flight').12 Months   12 Months











  EXHIBIT A - PRODUCT IMPROVEMENT PLAN   #   Active Date   Scope of Work   Finish Date 71       2501.03 Outdoor Patio/Kitchen - Implement the Take Flight- outdoor kitchen concept (Island `v/stainless steel grills and upscale seating, pergola, string S4, sconce lighting, upscale lounge seating with removable cushions, upscale decorative outdoor trash container, Wi-Fi, music, outdoor planters, etc. Refer to the Take Flight Design Guide.).

  12 Months

              72       2512.04 0 - Guest Bathrooms - Remove all existing acrylic tub/surround units. Provide cast iron, porcelain over steel, or Vikrell tubs as manufactured by Sterling. Install brand approved surrounds as outlined in Homewood Suites Brand Standards. The tub/shower surrounds must extend to the ceiling, coordinate with rarity color, and have a matte finish.

  12 Months

73       2512.04 I - Guest Bathrooms - Install closed front toilet seats.   12 Months 74       2512,02 A - Guest Bathrooms - Vanity area - install 12(minimum) ceramic floor tile and matching base. The floor tile most be the same as the bath area ttoor.tile.   1? Months

75       2514.03 A - Guest Bathrooms —Replace all floor tile. Install new decorative.   12 Months       porcelain fluor tile and matching base. Floor tile must be 12 iniritmiin.   76       2500.00 - Guest Bathrooms - Replace brass door hardware on the bath side of the; entry door. Install hardware to match the chronic or satinflxhires intlLial ft area. Exterior door hardware mast match entry door hardware. .

  12 Months

77       2512.09 C - Guest Bathrooms - Provide a single prong chrome towel hook to be,/:             mounted in close proximity to the tub/shower.:.-.. -.   12 Months 78       2512.02 B - Guest Bathrooms - Replace all vinyl wall covering.   12 Months 79       2500.00 - Install drawer and door hardware (pulls and }mobs) on vanity, baseca binet.   12 Months ..           80       2500.00 - Bathroom Storage - remove per labile, wire basket storage units. Provide vanity base or other built-intorage unit that is upscale in presentation.   12 Months

81       2512.06 - Guest Bathrooms — Vanity Mirror- Install bark—lit mirror over vanity sink. (Take Flight)   12 Months               82       2500.00 - Guest Bedrooms - Replace all Carpet, carpet pad, and carpet base.Months   12 Months               83       2510.00 - Guest Bediooms - Replae&all case goods.12 Months     84       Std 2510.05.B -Bed bases mush be 7 1/2' high. Replace current bed bases to neestandards   12 Months 85       2510.02 KGpest Bedrooms., Install metal stops at all windows to ensure no more than 47,6petiirg of WiridoWis allowed.   12 Months

86       251,0102 K - Gitest Bedrooms - Install solid surface material or granite window     S:,       12 Months     87       15] 0,06 1.3.:Gu&st BedoSoms - Replace all artwork.   12 Months 88       2 '!n]'',..00 - Chtest Bedrooms - Upgrade all window treatments; ensuring valance,             she'ers, black-Opt panels and stationary side pawls are in place. , 12 Months 89       2510.06 D - Girest Bedroom - Ceiling fans (hugger-type) are required in the bedrooms of all Suites and Studio Suites, Fans must be controlled by a wall Aritch. ;Pull chains are not allowed.   12 Months

90       2510.06 C - Guest Bedrooms - Replace lighting package. Install a new Holiwood approved lighting package. (To include beveled switches and electrical outlets).   12 Months

91       2510.06 - Guest Bedroom — Headboard - Install fake Flight upholstered headboard.   12 Months 92       2510.03 Guest Bedroom - Headboard Well - install tonal accent wall vinyl headboard -wall. Bold or bright colors are not accept abel for the headboard accent wall.   12 Months

        2510.03 D- Guest Kitchens - Install 1 2x12 tile, or plank tile. Install wood or tile base to snatch.   12 Months 94       2510.10 - Kitchen - Replace kitchen chairs.   12 Months 95       2510.03 E - Kitchens - Install IleV7wall vinyl in litchenlareakfast counter area.   12 Months









  EXHIBIT A - PRODUCT IMPROVEMENT PLAN           2510.10 D - Guest Kitchens - Replace all mismatched appliances. Microwave, refrigerator and dishwasher must be stainless steel. Cooktop must be black or stainless steel. All appliance must be Energy Star rated_

  12 Months

97       2500 00 - Gust Kitchens - add pulls and knobs to kitchen cabinetry.   12 11 onths 98       2510.06.D. - Guest Kitchens - Pendant Light - install decorative pendant over -tater' table   12 Months 49       2510,03.B. - Guest Kitchens - Accent wall - install tonal accent wall vinyl in kitchen   12 Months         LI lattagAIM     100       2510.03 E - Guest Parlors - Replace all carpet carpet pad, and carpet base.   24 Months 101       2510.02 K - Gust Parlors - Install solid surface material or granite window sills.   12 Months 102       2500.00 Gust Parlors - Install metal stop° at all windows to ensure no more than 4 window opening is allowed.   12 Months

103       2500.00 Guest Parlors - Remove silk plants form suites. (No longer required per 2012 standards).   12 Months 104       2515.00 - Guest Parlors - Upgrade all window treatments to include a valance, sheers, black-out panels and stationary panels are lupine.   12 Months

105       2510.00 - Guest Parlors - Replace all case goods.   12 Months 106       2510.06 C- Guest Parlors - Replace lighting package. Install a new voltII             lighting package.   12 Months 107       2510.01 - Guest suites - Provide cover plates (gmstroorn side) ter entrance door viewers   12 Months 108       2510.01 C - Guest Parlors - Install an approved auxiliary lock on all connecting     doors..      12 Morals     109       2510.06.A. - Glit Parlors—Cocktail Ottoman - Replace coffee table. Install:an upholstered cocktail ottoman with a wrap-over parsons table • . •   12 Months

110       2510.00 - Parlors - Replace all seating (fabric worn and discolored)°   12 Months   The improvements identified in this property improvement plan (PIP) relevant to the brand specified on the cover page of this PIP (Brand) ar,e,based on,tonditions at the hotel existing on the Inspection Date specified on the cover page of thiS PIP (InSpection Date). This PIP and any specified waivers of relevant brand standards are only'effeclive for the purpose of incorporation by reference into a fully executed and datetliagreement relat ing to the implementation of the PIP (Relevant Agreement) With the affiliate'Oititf:Or'Ililton Worldwide, Inc. that is party to such Relevant Agreement (Hilton), if _such RelOrAitt Agreement is entered into within 180 calendar days of the Inspection Date. In the 'event that aRelevant Agreement is not entered into within 180 calendar clays of the Inspection Date;-,an updated PIP may be required (in Hilton's absolute discretion). The preparatiort:andtor supply of this PIP shall not obligate Hilton (or any affiliate of Hilton) to en ter into anyeReleV:Mt Agreeinent (including, but not limited to, a franchise agreement or a management agreeinent). , This PIP review islimitato,aesthette and functional layout and design, and certain functional, operational and, qual ity criteilaas/sPecified by Hilton. It does not encompass, and Hilton does not make any repreSentiitien or Wiri.anty as to, nor shall Hilton be responsible for, the architectural, structural, thedianical, 'or electrical adequacy, accessibility requirements or other compliance with applicable government or other legal reqUirements. Compliance is required with brand standards (including4he..fire safety and security equipment standards specified by Hilton), all applicable local, state shish federal building codes, any legally mandated accessibility requirements anti all other legal requirements. Accordingly, Hilton recommends that its eennterparty(ies) engage an appropriate professional team and legal counsel to advise on such compliance. Any omission in this PIP report does not constitute a waiver of such requirements and does not release any obligation in any Relevant Agreement to conform to brand standards. Nothing in this PIP is intended to modify the terms of any Relevant Agreement to which it may be attached and/or incorporated by reference. In the event of any conflict of the terms, the terms of the Relevant Agreement are the terms that prevail.   The works set out in this PIP are required to be completed by the specified Finish Date, All Finish Dates that are a specified number of months or days shall mean the number of months or days from the date of the Relevant Agreement into which the PIP is incorporated by reference. 
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?
answer:
82149


question:
EXHIBIT 10.2

                    SITE DEVELOPMENT AND HOSTING AGREEMENT

                  This SITE DEVELOPMENT AND HOSTING AGREEMENT (the Agreement) dated as of August 9, 1999 is made between Hanover Direct, Inc. (HDI), a New Jersey Corporation, located at 1500 Harbor Boulevard, Weehawken, NJ 07087, and The Deerskin Companies, Inc. (the Company), a Nevada corporation, located at 2500 Arrowhead Drive, Carson City, NV 89706. Each of the parties hereto shall be referred to as a Party.

                  In consideration of the mutual promises and covenants set forth below, HDI and the Company agree as follows:

1. HDI's Responsibilities.

                  1.1 HDI shall design, develop, implement, operate, maintain and manage, and enable the Company to establish a presence on the World Wide Web (Site) to make available to Internet users on demand, men's and women's apparel and accessories from the Deerskin Catalog (Deerskin Products). As used in this Agreement, Deerskin Products shall not include (i) closeout merchandise which the Company may identify as Deerskin branded items, if such is the case, nor (ii) products from the Company's Joan Cook Catalog.

                  1.2 HDI shall bear all costs associated with the design, development, implementation, operation, maintenance and management of the Site, including, without limitation, technology and labor.

                  1.3 HDI shall host and maintain the Site on a server provided by HDI.

                  1.4 HDI shall provide the Company with access to, and

the right to use, a computer system on which the Site will be stored and operated, with a direct Internet connection of shared but greater than T-1 bandwidth, plus capacity to process continuously during burst periods. HDI shall also provide the Company with access to HDI's software and Content administration tools for purposes of allowing the Company to monitor current catalog information.

                  1.5 For the purposes of collecting orders for Deerskin Products from the Site and to communicate to the Site the unavailability of certain Deerskin Products, HDI shall provide export files in the format provided by the Company. HDI shall bear the programming and software costs relating to efforts required to create order export files and receive and process import files of the Company's inventory information.

                  1.6 HDI shall have the Site fully operational and accessible on demand by users of the Internet no later than sixty (60) days from the date this Agreement has been executed by both Parties. In the event that HDI fails to have the Site fully operational within seventy (70) days from the date of this Agreement, the Company shall have the right to terminate this Agreement without penalty.

                  1.7 HDI shall distribute the Site through the world wide protocol of the Internet using distribution channels used by HDI sites and other similar distribution channels.

                  1.8 HDI agrees that it shall promote the Site and Deerskin Products no less favorably than it promotes HDI's

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catalog titles. HDI's promotion of the Site and Deerskin Products shall include, but not be limited to, the incorporation of the Site and Deerskin Products into HDI's promotion calendars with Xoom.com and Excite for the term of this Agreement. HDI agrees that the costs of any such promotions shall be borne by HDI.

2. Company's Responsibilities.

                  2.1 The Company shall provide all Content to HDI to be included in the Site no later than ten (10) days from the date this Agreement has been executed by both Parties.

                  2.2 The Company shall bear all costs associated with the processing of customer orders.

3. Fees; Payment.

                  3.1 The Company shall pay HDI thirty percent (3016) of the Net Sales in excess of Eleven Thousand Dollars ($11,000) per calendar month. Net Sales shall mean all revenues from the sale of Deerskin Products on the Site including shipping and handling charges, minus refunds and exchanges.





                  3.2 Payments to HDI shall be due monthly within thirty (30) days of the end of each calendar month and shall be accompanied by documentation reasonably detailing the calculation of the payment.

                  3.3 Quarterly reconciliation of payments shall be conducted within thirty (30) days of the end of each calendar quarter to adjust for refunds and exchanges not taken into account in payments made to HDI.

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                  3.4 HDI's General Manager (as hereinafter defined), may upon no less than thirty (30) days prior written notice to the Company, have the right to inspect the records of the Company's General Manager reasonably related to the calculation of such payments during the Company's normal business hours. The fees incurred by HDI in connection with the inspection shall be borne by HDI.

4. Term; Termination; Termination Payment.

                  4.1 Term; Termination. This Agreement shall be effective as of that date (the Effective Date) the Site becomes fully operational as set forth in writing and executed by both Parties and shall continue for a period of one (1) year from the Effective Date. This Agreement shall be automatically renewed for an additional one year period on each anniversary of the Effective Date, unless terminated by either Party hereto upon ninety (90) days written notice to the other. Such notice shall specify the date on which this Agreement is to be terminated (the Termination Date).

                  4.2 Termination Payment.

                  (a) In the event the Company terminates this Agreement, the Company shall pay to HDI a termination payment, (the Termination Payment) the amount of which shall be an amount equal to the aggregate Net Sales for the twelve (12) months preceding the Termination Date less $800,000, the balance of which shall be divided by two.

                  (b) In the event that the amount of the Termination

                                       -4-

Payment is determined pursuant to this Section 4.2 to be less than or equal to zero, then no Termination Payment shall be due to HDI nor shall HDI be required to make any termination payment to the Company if the amount is determined to be less than zero.

                   (c) The Termination Payment, if any, shall be payable by the Company in eight (8) equal payments to be made quarterly, commencing thirty (30) days after the termination date.

5. Site; Site Management.

                   5.1 URL. The Uniform Resource Locator, or address on the World Wide Web for the Site (URL) shall be as mutually agreed by the Parties and shall be established and registered as necessary by HDI at no cost to the Company.

                   5.2 The Company shall have exclusive artistic and editorial control over the Site, including, without limitation, the implementation of the Content on the Site and the design and look and feel of the Site. Neither the Site nor any portion of thereof shall be deemed accepted and approved by the Company unless and until the Company accepts and approves same in writing to HDI. No portion of the Site shall be made available on the Internet without the consent of the Company.

                   5.3 The Company shall be deemed the merchant of record for all commercial transactions on the Site related to Deerskin Products. Until the sale of the Deerskin Products to the consumer from the Site all title to the Deerskin Products shall remain with the Company.

                  5.4 Each of HDI and the Company shall appoint a

                                       -5-

General Manager of its own to act as liaison with the other Party for the Site (each a General Manager) who shall bear sole responsibility for bookkeeping and business operations of the Site on a day-today basis. Each General Manager shall have the authority to make and convey decisions on behalf of each Party and to be the liaison with the other Party for all production and Content matters.

6. Exclusivity.

                  6.1 Except as provided in Section 6.2, during the term of this Agreement, the Company shall not participate in any project similar to the Site on the Internet with respect to Deerskin Products or products substantially similar to Deerskin Products (including, without limitation, the products of Wilson's House of Leather, Excelled and companies similar to Wilson's House of Leather and Excelled) and HDI shall have the exclusive right to use of the Deerskin brand for a self-contained web site for the offering of Deerskin Products directly to the consumer on the Internet.

                  The Company hereby grants to HDI a non-exclusive, limited, non-transferable license to use the Company's Deerskin trademarks, service





marks, and logos (collectively, Marks) solely for the purpose of carrying out its obligations under this Agreement. Except as provided herein, no licenses of the Company's Marks are granted or implied under this Agreement.

                  6.2 The Company retains the right to establish a web site on the Internet for the purpose of offering closeout

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merchandise which may be identified as Deerskin branded products, if such is the case.

                  6.3 During the term of this Agreement and for a period of two years after the expiration date of this Agreement, HDI shall not participate in any project similar to the Site on the Internet from which products substantially similar to Deerskin Products (including, without limitation, the products of Wilson's House of Leather, Excelled and and companies similar to Wilson's House of Leather and Excelled) are offered for sale to consumers on the Internet.

7. Cross-Promotions.

                  7.1 Joint Efforts. The Parties agree to cross-promote one another's products through the use of their respective customer e-mail lists on a reciprocal and equitable basis. The Parties specifically agree that the form, content and design of any and all advertisements or promotional materials featuring the other Party or such Party's products shall continue to be developed by or on behalf of such Party and shall be subject to such Party's final approval. The Parties agree further that any promotions or advertisements involving the use of a Party's customer e-mail list by the other Party shall be subject to the prior approval of such Party.

                  7.2 Mutual Covenants as to Advertisements. The Parties hereby covenant and agree that their respective marketing and advertising efforts provided for herein shall at all times comply with all applicable laws rules and regulations and will

                                       -7-

not contain any material which is obscene, threatening, fraudulent, harassing, libelous, infringing of third party intellectual property rights, otherwise illegal or, in the reasonable judgment of the Party required to display or transmit the advertisement, offensive.

8. Confidentiality.

                  8.1 Unless otherwise agreed to in writing by the Company, HDI shall maintain the strict confidentiality and shall not disclose to any third party the existence of, or terms and conditions of this Agreement. In addition, HDI, in performing the Services for the Company hereunder, may have access to or be exposed to, directly or indirectly, Content, user information, data, knowledge and proprietary and trade secret information of the Company in oral, graphic, written, electronic or machine readable form (hereinafter collectively referred to as Confidential Information). Confidential Information shall not include information which can be demonstrated: (a) to have been rightfully in the possession of HDI from a source other than the Company prior to the time of disclosure of said information to HDI hereunder (Time of Receipt); (b) to have been in the public domain prior to the Time of Receipt; (c) to have become part of the public domain after the Time of Receipt by a publication or by any other means except an unauthorized act or omission or breach of this Agreement on the part of HDI, its employees, or agents; or (d) to have been supplied to HDI after the Time of Receipt by a third party who is under no obligation to the

                                       -8-

Company to maintain such information in confidence.

                  8.2 HDI Obligations. All Confidential Information of the Company shall be held in strict confidence by HDI and shall not be disclosed or used without express written consent of the Company, except as may be required by law. HDI shall use reasonable measures and reasonable efforts to provide protection for Confidential Information, including measures at least as strict as those HDI uses to protect its own Confidential Information.

                  8.3 Company's Obligations. The Company acknowledges that it may receive confidential information of HDI relating to its technical, marketing, product and/or business affairs. All such confidential information of HDI shall be-held in strict confidence by the Company and shall not be disclosed or used without express written consent of HDI, except as may be required by law. The Company shall use reasonable measures and reasonable efforts to provide protection for such confidential information of HDI, including measures at least as strict as those the Company uses to protect its own Confidential Information.

                                      -9-

9. Warranties.

                   (a) Each Party represents and warrants to the other Party that (1) it is a corporation organized, validly existing and in goodstanding under the laws of the state of its incorporation; (2) it has the full right power and authority to enter into, and to perform the obligations contemplated in this Agreement, and the person signing on its behalf has the full right,





power and authority to enter into this Agreement on behalf of the Party; (3) this Agreement constitutes a legal valid and binding obligation of the Party, enforceable in accordance with its terms; and (4) the execution of this Agreement will not conflict in any way with any pre-existing agreements or understandings of the Party with any person or entity.

                                      -10-

                   (b) HDI acknowledges that the Company is currently a party to a web-hosting agreement with Globix Corporation (the Globix Agreement) for the Company's web site offering Deerskin Products to Internet customers. HDI agrees that the Company shall not be deemed in breach of any provision of this Agreement by virtue of the Globix Agreement remaining in effect after this Agreement has been executed by both Parties, provided, that the Globix Agreement is terminated on or prior to the Effective Date

10. General Provisions.

                   10.1 Notices. Any notice under this Agreement will be in writing and delivered by personal delivery, express courier, confirmed facsimile, or certified or registered mail, return receipt requested and will be deemed given upon personal delivery, one (1) day after deposit with express courier, upon confirmation of receipt of facsimile or five (5),days after deposit in the mail. Notices will be sent to a Party at its address set forth above or such other address as that Party may specify in writing pursuant to this Section.

                   10.2 No Joint Venture. The Parties agree that and acknowledge that the relationship of the Parties is in the nature of an independent contractor. This Agreement shall not be deemed to create a partnership or joint venture and neither Party is the other's agent, partner, employee or representative. Neither Party shall have any right, power or authority to enter into any agreement for or on behalf of, or to assume or create any obligation, liability, or responsibility on behalf of the other.

                                      -11-

This Agreement will not be construed to create or imply an association, joint venture, co-ownership, or partnership between the Parties or to impose any partnership obligation or liability upon either Party.

                  10.3 Assignment. This Agreement shall be binding upon, and shall inure to the benefit of and be enforceable by, the parties hereto and their respective legal representatives, successors and assigns, but no other person shall acquire or have any rights under this Agreement.

                  10.4 Waiver of Breach. The failure of either Party at any time to enforce any of the provisions of this Agreement shall not be deemed or construed to be a waiver of any such provisions, or in any way to affect the right of any Party hereto to thereafter enforce each and every provision of this Agreement. No waiver of any breach of any provisions of this Agreement shall be effective unless set forth in writing and executed by the Party against which enforcement of such waiver is sought; and no waiver of any such breach shall be construed or deemed to be a waiver of any other or subsequent breach.

                  10.5 Governing Law. This Agreement shall be governed and construed and enforced in accordance with the laws of the State of New York applicable to contracts made and to be performed exclusively in that State without giving effect to the principles of conflict of laws.

                  10.6 Severability. If any provision of this Agreement is declared invalid or otherwise determined to be unenforceable

                                      -12-

for any reason, such provision shall be deemed to be severable from the remaining provisions of this Agreement, which shall otherwise remain in full force and effect.

                  10.7 Survival. Sections 6.3, 7, 9 and 10 of this Agreement shall survive and continue in full force and effect for a period of two years from the expiration or termination of this Agreement.

                  10.7 Entire Agreement. This Agreement is the complete and exclusive agreement between the Parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both Parties.

                  10.8 Headings; Counterparts. The section headings in this Agreement are for reference purposes only and shall not define, limit or affect the meaning or interpretation of this Agreement. This Agreement is being executed in two or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.

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

THE DEERSKIN COMPANIES, INC.                HANOVER DIRECT, INC.

By                                          By   ------------------------------              --------------------------





  Name: Irwin Schneidmill                     Name: Rakesh K. Kaul   Tilte: President                            Title:President

                                      -13- 
Question: Highlight the parts (if any) of this contract related to Liquidated Damages that should be reviewed by a lawyer. Details: Does the contract contain a clause that would award either party liquidated damages for breach or a fee upon the termination of a contract (termination fee)?
answer:

5714