RESORT AFFILIATION AGREEMENT (Timbers Kauai Residences) THIS RESORT AFFILIATION AGREEMENT (“Agreement”) is made and entered into 1st day of [_________________], December 2016 December 1, 2016 by and this _____ to be effective as of [_________________], between TIMBERS EXCHANGE, LLC, a Colorado limited liability company (the “Company”) and ASSOCIATION OF APARTMENT OWNERS OF TK RESORT CONDOMINIUM, a Hawaii nonprofit corporation, and TK RESORT VACATION OWNERS ASSOCIATION, a Hawaii nonprofit corporation (collectively and individually, the “Association”). RECITALS: A. The Company has established an exchange system and related services known as the Timbers Reciprocity Program which provides a means for Members to reserve the use of accommodations and facilities at the Resort and other resorts affiliated with the Timbers Reciprocity Program in accordance with the terms as set forth in this Agreement and the Program Guidelines. B. The Association desires that the Resort become affiliated exclusively with the Timbers Reciprocity Program so that each Owner at the Resort is eligible to become a Member of the Timbers Reciprocity Program with the ability to request reservations for the use and occupancy at Member Resorts, pursuant to the terms of this Agreement and the Program Guidelines. Members are then eligible for enrollment in the Timbers Collection program of ancillary non-accommodation benefits and services, and the Resort will be referenced among the Timbers Collection of properties. C. The Company and the Association desire to set forth certain duties, obligations and responsibilities for the operation and integration of the Resort into the Timbers Reciprocity Program. NOW, THEREFORE, in consideration of the mutual covenants and obligations contained in this Agreement, the parties hereby agree as follows: ARTICLE ONE DEFINITIONS 1.1 Annual Fee means the fee paid on an annualized basis for participation in the Timbers Reciprocity Program set forth in Section 5.13 of this Agreement. 1.2 Association Project Documents means the declaration, rules and regulations adopted by the Association, and any other document or agreement governing the reservation, use or occupancy of accommodations at the Resort, as amended from time to time. 1.3 Company means Timbers Exchange, LLC, a Colorado limited liability company having its business address at 201 Main Street, Suite 202, Carbondale, Colorado 81623.
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1.4 Database means the electronic directory prepared by the Company from time to time describing the Resort and the other Member Resorts. 1.5 Member means an Owner who has been accepted by the Company as a Member of the Timbers Reciprocity Program. If the Owner is comprised of more than one individual or an entity, the Company will recognize the Primary Person as the Member. Members are automatically offered enrollment in the Timbers Collection, which provides ancillary nonaccommodation benefits. 1.6 Member Resort means those resorts which become affiliated with the Timbers Reciprocity Program as listed on the Database, and as amended from time to time, including the Resort. 1.7 Owner means an individual, partnership, corporation, limited liability company, trust, or other legally recognized entity, in each case holding title to a residential ownership interest (including, without limitation, a fractional ownership interest) in a Member Resort. 1.8 Primary Person means the one natural individual, who is fully authorized to act on behalf of the Owner and is (a) designated by the other co-owners holding the ownership interest at a Member Resort; or (b) designated by the corporate, partnership, trust, limited liability company or other entity owner of an ownership interest. 1.9 Program Guidelines means the Terms of Use, Guidelines and Disclosure Statement for the Timbers Reciprocity Program and Timbers Collection, as each are amended from time to time. 1.10 Reservation System means the reservation system and other Member services, including but not limited to any and all telephone services, websites and any computer software, developed, operated, provided and maintained by the Company or its affiliates for the Timbers Reciprocity Program in accordance with this Agreement. 1.11 Resort means the TK Resort Condominium, also known as Timbers Kauai Ocean Club & Residences, located in the Island of Kauai, State of Hawaii. 1.12 Resort Unit means both a wholly-owned Resort Apartment at the Resort and a Resort Apartment that has been converted to a Club Unit and divided into separate Club Interests, all as further described in the Association Project Documents for the Resort. 1.13 Timbers Reciprocity Program means the exchange program operated by the Company in order to allow Members to exchange Vacation Weeks at Member Resorts. 1.14 Vacation Week means consecutive seven (7) night periods of usage at a home, apartment, or residential unit in a Member Resort, as further described in the Program Guidelines. ARTICLE TWO TERM
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2.1 Term. Unless sooner terminated pursuant to the provisions hereof, this Agreement shall have an initial term of ten (10) years, commencing on the date hereof, and shall be automatically renewed for successive five (5) year periods thereafter unless written notice of non-renewal is given by either party hereto to the other party no later than ninety (90) days prior to the end of the initial 10-year term or prior to the end of any 5-year period thereafter (as renewed from time to time, the “Term”). 2.2 Disaffiliation. Upon the end of the Term, the Resort automatically shall be disaffiliated from the Timbers Reciprocity Program and the Member Resorts, Members shall no longer be entitled to participate in the Timbers Reciprocity Program, and the Company may immediately suspend operation of the Reservation System, including but not limited to confirmation of reservations of Members; provided, however, all reservations confirmed in writing by the Company prior to the end of the Term shall be honored by the Association and the Company, and the Company shall cause such reservations to be honored by the Member Resorts, as applicable. 2.3 Deletion of Member Resorts. The Company may, in its sole discretion and upon prior notice to the Members, delete an existing Member Resort pursuant to the specific termination rights contained in each individual Resort Affiliation Agreement or other applicable documentation. ARTICLE THREE THE RESORT’S RELATIONSHIP WITH THE PROGRAM 3.1 Affiliation. By execution of this Agreement, the parties agree to affiliate the Resort with the Timbers Reciprocity Program in accordance with the terms and conditions of the Program Guidelines and this Agreement. During the Term, the Association and the Company shall cooperate in all reasonable aspects in the operation of the Timbers Reciprocity Program at the Resort. 3.2 Independent Entities. The Association and the Company acknowledge that neither party has the power to bind the other in any respect, except with respect to the binding provisions of this Agreement. The Association is a totally independent entity from and operates outside the control of the Company. A Member’s participation and membership in the Timbers Reciprocity Program or in the Timbers Collection is separate and distinct from such Owner’s rights in the Resort under the Association Project Documents. 3.3 Program. The Association and the Company further acknowledge that the term “Program,” “Timbers Reciprocity Program,” or “Timbers Collection,” when used to describe the exchange services provided by the Company is not a legal entity or association of any kind but instead is a service name given to the variety of exchange and reservation services currently offered and the restrictions currently imposed through the Company. 3.4 Exclusive Affiliation. During the Term, the Resort shall be exclusively affiliated with the Timbers Reciprocity Program, the Company shall be the exclusive exchange company for the Resort and the Association, and the Association shall not enter into or permit any Owner at the Resort (whether or not such Owner is a Member) to enter into any agreement or RESORT AFFILIATION AGREEMENT (Timbers Kauai Residences) DMWEST #13873397 v5
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arrangement with any other party to provide exchange services to any Owner in the Resort unless the Company otherwise agrees in writing. ARTICLE FOUR DUTIES AND OBLIGATIONS OF THE COMPANY 4.1 Reservation System. During the Term, the Company shall operate a Reservation System that enables Members to reserve and exchange Vacation Weeks at Member Resorts in accordance with the Program Guidelines and subject to any applicable declaration and rules and regulations of the Member Resorts, including the Association Project Documents. Upon the end of the Term, irrespective of the cause of any such termination or whether the termination is voluntary or involuntary, the Company shall continue to own and control the Reservation System. The Company shall have the right to delegate any or all of its duties and obligations under this Agreement to other persons or entities, which are affiliated with the Company, for such periods and upon such terms as the Company deems proper. 4.2 Member Resorts. During the Term, the Company shall include the Resort as a Member Resort within the Database for all purposes within the Timbers Reciprocity Program. 4.3 Program Guidelines. The Company shall arrange for the participation of Members in the Timbers Reciprocity Program in accordance with, and pursuant and subject to, all of the terms, conditions, rules, regulations and stipulations of the Program Guidelines and the Database, and the Association agrees to abide by the same. The Company shall provide the Association with a copy of the current Program Guidelines and the Database on the date of this Agreement and from time to time thereafter at the request of the Association. The Company shall also provide the Association with notice of any amendments or modifications to Program Guidelines and the Database, which notice may be given by electronic mail. The Association acknowledges that the Company has the right to amend or modify the Program Guidelines and the Database in its sole and absolute discretion. ARTICLE FIVE DUTIES AND OBLIGATIONS OF THE ASSOCIATION 5.1
Members.
(a) Within thirty (30) days following the written request of the Company, the Association shall provide the Company with the full name, address and telephone number of each Owner at the Resort, together with such additional information regarding such Owner, as the Company shall reasonably request. In addition, as soon as is reasonably practicable after the Association receives actual notice of any other conveyance or transfer of an interest in the Resort, the Association shall provide written notice to the Company of such conveyance or transfer, including the full name, address and telephone number of the transferee. (b) If requested by the Company following a person’s submittal of an application to become a Member of the Timbers Reciprocity Program, the Association shall, within forty-eight (48) hours of receiving the request, advise the Company as to (i) whether the person is an Owner at the Resort; and (ii) if the person is an Owner, whether the Owner is in good standing at the Resort. RESORT AFFILIATION AGREEMENT (Timbers Kauai Residences) DMWEST #13873397 v5
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5.2 Website Access. The Association grants to the Company the right to establish any links and access to the Resort’s or Association’s websites in connection with the operation of the Timbers Reciprocity Program. 5.3
Reservations and Use Rights.
(a) Upon notification by the Company that a Member with an ownership interest at the Resort has attempted to deposit a Vacation Week into the Timbers Reciprocity Program, the Association shall, within forty-eight (48) hours of receiving the notification, provide the Company with the information necessary to confirm that the Vacation Week is eligible to be deposited by the Member. The information that the Association must provide shall include confirmation that (i) the Member is in good standing at the Resort, (ii) the Member is in compliance with all rules, regulations, covenants and conditions of the Resort, and (iii) the Member has previously made an irrevocable reservation of the Vacation Week or the Member is otherwise entitled to occupancy for the Vacation Week that the Member is attempting to deposit into the Timbers Reciprocity Program. (b) The Association agrees to ensure that every reservation confirmed by the Company for use and occupancy of a Vacation Week at the Resort by a Member is honored, provided that the Association has received prior notice of such reservation from the Company in writing, by telephone, by facsimile, or by such other means as is mutually agreed upon by the Association and the Company. So long as visiting Members comply with the Program Guidelines, and with the rules and regulations of the Association Project Documents, such visiting Members shall have all the rights and privileges of an Owner in occupancy at the Resort. No additional fees shall be charged to visiting Members by the Association for such rights and privileges. No suspension of an Owner’s use rights at the Resort shall impact a Member’s right to reserve and use a Vacation Week deposited by the Owner and confirmed by the Association as described in Section 5.3(a). 5.4 Personal Charges. The Association shall be responsible for collecting any personal charges incurred by visiting Members, such as telephone calls, room service, spa services, amenity use fees, and other incidental charges. Visiting Members may be charged for any additional housekeeping, cleaning, or service fees incurred beyond that which is assessed to Owners as a Resort common expense. The Association may request a visiting Member supply a credit or debit card upon check-in with pre-authorization to bill personal charges, use fees, housekeeping fees and other incidental charges to such card. There may be additional requirements and charges applicable to Members who are Residence Unit Owners, including the Requirements for Residence Units, as such terms are defined in the Program Guidelines. The Association will cooperate with the Company and with any managing agent(s) for such Residence Unit Owners in the administration of such matters. 5.5 Insurance. By execution of this Agreement, the Association agrees to obtain and maintain: (a) casualty insurance as to all accommodations, facilities and furnishings located upon the Resort in an amount equal to the replacement cost of such accommodations, facilities and furnishings, provided that the Association is not responsible for the insurance or coverage required to be carried by Residence Unit Owners pursuant to the Association Project Documents or the Requirements for Residence Units; and (b) comprehensive liability insurance in amounts RESORT AFFILIATION AGREEMENT (Timbers Kauai Residences) DMWEST #13873397 v5
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and with such coverages as required under the Association Project Documents. The Company shall not be liable for any costs associated with obtaining or maintaining such insurance. 5.6 Project Documents. The Association shall not amend the Association Project Documents in any manner that would have a material adverse affect on the duties, rights or obligations of the Company hereunder or that would have a discriminatory impact on visiting Members, without the prior consent of the Company, which may be withheld in the Company’s reasonable discretion. Participation by the Association and the Members in, and implementation by the Company and the Association of, the Timbers Reciprocity Program shall not be deemed to be a commercial use or a non-residential use and shall not be deemed to violate any restriction on rental or similar use in the Association Project Documents. 5.7 Resort Standards. The Association agrees to manage, operate and maintain the Resort in accordance with the requirements of the Association Project Documents, and in a manner consistent with the reasonable standards of quality and customer service established by the Company for all Member Resorts from time to time; provided that the Association is not responsible for management, operation, or maintenance of areas of Residence Units which are required to be maintained by Residence Unit Owners pursuant to the Association Project Documents or the Requirements for Residence Units. 5.8 Alternative Accommodations. If the Association, by or through its own acts or omissions, fails to honor a reservation confirmed in writing by the Company for a Vacation Week, the Association shall immediately correct (without any right to notice or cure) such failure, at its own expense, including but not limited to by securing alternate accommodations which are of like quality, size and occupancy as the accommodations reserved pursuant to such confirmed reservation, or by such other means as is mutually agreed upon by the Association and the affected Member; provided, however, neither the Association nor the Company shall have any obligation to secure alternate accommodations for any person who arrives at the Resort other than at the date and time specified in the confirmed reservation. 5.9 Enforcement of Exclusive Affiliation. The Association agrees to enforce the restrictions contained in this Agreement and in the Condominium Documents as necessary to prevent any Owners at the Resort from entering into any agreement or arrangement with any other party to provide exchange services to any Owner at the Resort unless the Company otherwise agrees in writing. 5.10 Promotion of the Timbers Reciprocity Program. The Association shall promote the Program to Members and prospective Members, at the reasonable request of the Company. Such efforts shall include, without limitation, distributing or arranging for the distribution of membership materials to all Owners, and prospective owners at the Resort. In addition, the Association agrees to include in all of its written correspondence with Owners at the Resort, that certain identifying reference to the Program exactly as set forth in Exhibit A attached hereto and made a part hereof, which may be eliminated, amended or modified by the Company from time to time in its sole and absolute discretion upon written notice to the Association. 5.11 Right to Use Vacation Weeks. In consideration of the mutual promises herein and other good and valuable consideration, the Association, for itself and on behalf of the Members RESORT AFFILIATION AGREEMENT (Timbers Kauai Residences) DMWEST #13873397 v5
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at the Resort, hereby grants and authorizes the Company to reserve, use and occupy up to two (2) complimentary unreserved space available Vacation Weeks per year for each Resort Unit that has been converted to a Club Unit at the Resort to the extent available on the same basis, terms, and timelines (specifically, during the same reservation periods) as Owners in the Resort are able to reserve space available vacations (or the equivalent of space available vacations). Complimentary use of Resort Units that are wholly owned Resort Apartments will be established in the membership agreement with the Member owning the Resort Unit. Such reservations shall be made for the benefit of the Company for exchange, promotional and other operational purposes, and will allow use of such Club Units by such Members, prospective Members and other individuals as the Company may designate from time to time in furtherance of the Timbers Reciprocity Program. Such reservations shall be made in accordance with the reservation procedures for the Resort, provided that (a) any restrictions on rental, exchange, or unaccompanied use of space available vacations shall not apply to Vacation Weeks booked by the Company, (b) any provisions regarding failure to cancel or use space available vacations shall not apply to Vacation Weeks booked by the Company, and (c) the Company may book multiple Vacation Weeks at the same time, not being required to use one Vacation Week before being permitted to book another (up to the maximum number of bookings per year referenced above). While use shall be complimentary, the Company agrees to pay when due, or cause the visiting Member to pay when due, all incidental charges actually incurred (for example, food & beverage, phone charges, or spa service charges) arising during occupancy of space available Vacation Weeks; provided such fees and charges shall be calculated and charged to the Company on a basis consistent with that calculated and charged to the Owners. The Company shall not, as a result of this provision or its use rights hereunder, be responsible for: (i) any use, occupancy or other per diem charges (for example, daily housekeeping charges); nor for (ii) dues or assessments charged to Owners arising from their ownership interest in the Resort under the Association Project Documents. 5.12 Marketing Fee. The Association shall pay to the Company an annual centralized marketing fee, not exceed $25,000.00 in the initial calendar year of the effective date of this Agreement, with any increases in the calendar years following such initial year each capped at 5% of the prior year’s amount. 5.13 Annual Fee. Commencing and due on January 1, 2018, and continuing for each yearly anniversary thereafter during the Term, the Association shall pay to the Company an annual fee for access to the Timbers Reciprocity Program calculated as one hundred dollars ($100.00) per Club Interest Owner then at the Resort as the same may be increased to the prevailing market rate from time to time. ARTICLE SIX CONFIDENTIAL INFORMATION AND TRADEMARKS 6.1 Confidential Information. For purposes of this Agreement, “Confidential Information” means (a) information disclosed to a party by the other party or its affiliates or the employees, consultants, or agents of any of them in connection with or in furtherance of this Agreement or the operation of the Resort, another Member Resort or the Timbers Reciprocity Program, (b) a party’s or its affiliates’ know-how, trade secrets, proprietary information, documents, designs, plans, reports, customer, or Member or Owner information, guest lists, and RESORT AFFILIATION AGREEMENT (Timbers Kauai Residences) DMWEST #13873397 v5
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studies, (c) information that a party or any of its affiliates identifies from time to time as confidential, or (d) information that should be treated as confidential under the circumstances surrounding its disclosure, including guest history information, the names, addresses, phone numbers, membership numbers or activities of Owners or Members, sales and marketing information, and account information. Confidential Information shall be held confidential and shall not be used or disseminated publicly or to any third party for any purpose without the prior written consent of the party or the Member providing such information. The Company and the Association each agree to implement and maintain commercially reasonable privacy practices in relation to Confidential Information. 6.2 Trademark Rights. The Association acknowledges that the Company and/or one or more of its affiliates is the owner of the names, logos, identifying marks, symbols, trademarks and/or service marks of the “Timbers Resorts®,” “Timbers Exchange,” “Timbers Reciprocity,” “Timbers Collection®,” or as disclosed to the Association from time to time by the Company (the “Timbers Trademarks”). The Association may not use the Timbers Trademarks without the prior written consent of the Company, except as required pursuant to Section 5.10 of this Agreement. Upon termination of this Agreement, the Association shall immediately cease using and thereafter abstain from using all of the Timbers Trademarks and any name or mark similar thereto. The Association acknowledges that the Timbers Trademarks are not part of the Resort, and agrees that neither the Association nor the Members have, nor shall the Association claim on its own behalf or on behalf of the Members, any right, title, or interest in the Timbers Trademarks. Neither the Association nor the Members are third party beneficiaries of the Timbers Trademarks, intended or otherwise. 6.3 Association Trademarks. The Association grants to the Company an exclusive, royalty-free, fully paid-up, sublicensable license to use all of the Association’s right, title and interest in and to the name “Timbers Kauai Ocean Club & Residences” and the name “Hokuala – A Timbers Resort” and all related names, trademarks, service marks, logos and other indicia, whether registered or not (the “Association Trademarks”) throughout the world, in any manner or medium now known or hereafter invented for all purposes in any way related to this Agreement. The Company acknowledges that the Association will retain the right to use the Association Trademarks in connection with the Resort. Upon termination of this Agreement, the Company shall immediately cease using and thereafter abstain from using all of the Association Trademarks and any name or mark similar thereto. The Company acknowledges and agrees that neither the Company nor the Members have, nor shall the Company claim on its own behalf or on behalf of the Members, any right, title, or interest in the Association Trademarks. Neither the Company nor the Members are third party beneficiaries of the Association Trademarks, intended or otherwise. ARTICLE SEVEN DEFAULT, TERMINATION, SUSPENSION AND REMEDIES 7.1 Default by the Association. If the Association is in material default under this Agreement, unless such default is cured by the Association to the Company’s reasonable satisfaction in accordance with this Agreement, the Company may, in addition to any other remedy available to it by law, terminate this Agreement and/or bring an action against the Association in equity or for damages. All such rights of the Company upon the Association’s RESORT AFFILIATION AGREEMENT (Timbers Kauai Residences) DMWEST #13873397 v5
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material default hereunder shall be cumulative, and the exercise of one or more remedies shall not be deemed to preclude or constitute a waiver of the right to exercise any other remedy. Without limiting the generality of the foregoing: (a) The Company may terminate or suspend its participation in this Agreement, immediately upon written notice to the Association, in the event that the Company determines in its sole discretion that the Association has failed to operate and maintain the Resort in a manner consistent with the standards of quality and customer service established by the Company for all Member Resorts from time to time. (b) The Company may enforce its rights under this Agreement by injunctive or other equitable relief, including but not limited to specific performance by the Association of the terms of this Agreement, and the Company shall receive $250,000 in liquidated damages for each breach by the Association of Section 3.4 or 5.9 hereof, it being acknowledged and agreed by the Company and the Association that the types of injuries and damages that would be sustained by the Company, and system-wide to the Timbers Reciprocity Program, would be difficult to measure and that $250,000 is a reasonable estimate of the Company's damages resulting from each breach by the Association of its obligations under Section 3.4 or 5.9. (c) The Company may elect to terminate this Agreement upon the declaration of bankruptcy or insolvency of the Association, dissolution of the entity status of the Association according to applicable law, or if any general assignment shall be made of the Association’s property for the benefit of creditors. 7.2 Default by the Company. If the Company is in material default under this Agreement, unless such default is cured by the Company to the Association’s reasonable satisfaction in accordance with this Agreement, the Association may bring an action against the Company in equity or for damages, but the Association may not terminate this Agreement unless (a) a majority of the total voting power of the Owners at the Resort (as opposed to a majority of a quorum) and (b) a majority of the Owners at the Resort who are Members, affirmatively agree that there has been a material default by the Company and vote to terminate this Agreement. All such rights of the Association upon the Company’s material default hereunder shall be cumulative, and the exercise of one or more remedies shall not be deemed to preclude or constitute a waiver of the right to exercise any other remedy. 7.3 Material Default/Cure Rights. A material default shall be deemed to have occurred in the event of a breach of any of the terms, conditions, covenants, representations or warranties contained in this Agreement upon written notice to the breaching party stating the grounds for such termination or suspension, unless the breaching party cures the asserted breach to the reasonable satisfaction of the party giving such notice within thirty (30) days of the date of notice or, if such cure cannot reasonably be completed within thirty (30) days, commences such cure within the thirty (30) day period and diligently pursues it to completion. 7.4 TRP Termination. The Company may terminate the entire Timbers Reciprocity Program, for any reason or no reason, upon ninety (90) days prior notice thereof to the Association and all Members.
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7.5 Effect of Termination or Suspension. Upon termination or suspension of this Agreement, the Company and the Association shall honor all reservations and reservation privileges of Members from other Member Resorts reserving time at the Resort that are confirmed or accrued prior to termination or suspension. The Company shall cause other Member Resorts to honor all reservations and reservation privileges of Members at the Resort reserving time at another Member Resort that are confirmed or accrued prior to termination or suspension of this Agreement. This provision shall survive the termination of this Agreement. ARTICLE EIGHT LIMITATION ON LIABILITY 8.1 Mutual Waiver and Release. Each party agrees that in the event of a loss or claim covered by a party’s insurance, such party shall look solely to its own insurance for recovery. To the extent commercially available, the Association shall add the Company as an additional insured to its policies of liability insurance. The Association, for itself and all members of the Association at the Resort, releases the Company and the Company’s affiliates, officers, directors, shareholders, managers, members, employees and agents from liability for loss or damage to the Resort to the extent of coverage afforded by its insurance. The Company releases the Association and the Association’s affiliates, officers, directors, members, employees and agents from liability for loss or damages to any property of the Company situated in the Resort to the extent of coverage afforded by its insurance. This release shall apply to the liability of the parties to each other and to any liability to any person claiming through or under a party pursuant to a right of subrogation or otherwise. 8.2 Separate Corporate Existence. The Association acknowledges and agrees that the Company is an independent entity, and no affiliate, officer, director, shareholder, manager, member, employee, or agent of the Company, including but not limited to the Company’s parent corporation, any individual, or any entity affiliated with the Company or another Member Resort, shall be in any manner liable or responsible for any duty, obligation or liability of the Company. The Association acknowledges and agrees that (a) it is not relying on any other person or entity to be in any manner liable or responsible for any of the duties, obligations or liabilities of the Company, but is relying solely on the Company with respect thereto, (b) no written or oral representations have been made with respect to the financial support of or contribution to the Company by any person or entity, and (c) it will not attempt to pierce the corporate veil of the Company for any reason, including but not limited to obtaining financial contribution or responsibility from any other person or entity. The Company acknowledges and agrees that the Association is an independent entity, and no affiliate, officer, director, shareholder, manager, member, employee, or agent of the Association, including but not limited to any individual or any entity affiliated with the Association, shall be in any manner liable or responsible for any duty, obligation or liability of the Association. The Company acknowledges and agrees that (a) it is not relying on any other person or entity to be in any manner liable or responsible for any of the duties, obligations or liabilities of the Association, but is relying solely on the Association with respect thereto, (b) no written or oral representations have been made with respect to any assessment, fee, dues or other amount to be imposed or collected by the Association, by any person or entity, and (c) it will not attempt to pierce the corporate veil of the Company for any reason, and it acknowledges the Association has not promised payment nor undertaken any
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guaranty of collection of any sums due from Members to the Company under the Program Guidelines. 8.3 Limitation on Damages. The parties each agree that any legal remedy shall be limited to actual and direct damages and hereby each waive any claim for other damages, including without limitation, consequential, indirect, special, incidental, punitive damages and damages for lost profits. ARTICLE NINE MISCELLANEOUS 9.1 Interpretation. Applicable Law and Governing Jurisdiction. The terms and conditions of this Agreement shall be construed under the laws of Colorado. Each party consents to the exclusive subject matter and personal jurisdiction of Colorado. Any dispute arising out of or in connection with this Agreement or the Timbers Reciprocity Program, including any question regarding their existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the American Arbitration Association in accordance with its rules (“AAA Rules”), which AAA Rules are deemed to be incorporated by reference into this Agreement except to the extent that any such AAA Rules conflict or are inconsistent with any of the provisions of this Section in which case the provisions of this Section shall prevail. The place of the arbitration shall be held in Denver, Colorado. Each party waives any right which it may have to any substantive review of any arbitration awarded by the court of the jurisdiction in which the arbitration is conducted and agrees that the award of the arbitrators in any such arbitration proceedings shall be final and without any right of appeal. The arbitration award may be entered as a final judgment in the court of any jurisdiction in which such entry shall be recognized under applicable law. Each party involved in any arbitration proceeding pursuant to this Section shall pay its own expenses in connection therewith. 9.2 Assignment. Neither party hereto shall have the right to assign its duties or obligations hereunder without the prior written consent of the other party; provided, however, that (a) without the consent of the Association, any or all of the Company’s rights, benefits, duties, and responsibilities hereunder may be delegated or assigned from time to time to an affiliate of the Company and the Company shall not be released thereby; and (b) the Association may delegate its duties and obligations hereunder to any managing agent of the Association and in any event shall cause any such managing agent to become familiar with this Agreement and shall not permit any interference with the terms or intent hereof by such managing agent. To the extent permitted hereunder, this Agreement and all terms, provisions, and conditions hereof shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. All rights of Members under the Timbers Reciprocity Program are personal rights of a Member and may not be further assigned, transferred or exchanged to non-Members unless authorized by the Company in accordance with the Program Guidelines. 9.3 Time is of the Essence. Time is of the essence with respect to each and every provision and condition hereof. 9.4 Entire Agreement; Amendments. This Agreement embodies the entire agreement between the parties hereto relating to the subject matter hereof and supersedes and replaces any RESORT AFFILIATION AGREEMENT (Timbers Kauai Residences) DMWEST #13873397 v5
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and all prior negotiations, representations, agreements, and understandings, both oral and written, in connection therewith. This Agreement shall not be amended or in any manner modified unless such amendment or modification is set forth in a written instrument which is signed by both of the parties hereto; provided, however, the Company may unilaterally amend, update and modify the Program Guidelines and the Database. The Company shall also provide the Association with notice of any amendments or modifications to Program Guidelines and the Database, which notice may be given by electronic mail. 9.5 Severability. The provisions hereof shall be deemed to be independent and severable, and the invalidity or partial invalidity or unenforceability of any one provision shall not affect the validity or enforceability of any other provision hereof. 9.6 Relationship of Parties. The Company shall perform its duties and responsibilities hereunder strictly as an independent contractor, and neither the execution of this Agreement nor the complete performance hereof is intended to be, nor shall it be construed as, evidencing the formation of a partnership, joint venture, or similar arrangement between the Association and the Company. 9.7 Notices. All notices which any party hereto desires or is required to give to the other party hereunder shall be deemed to have been duly given upon being delivered personally; upon the confirmed receipt of a notice sent by Federal Express or a similar overnight courier service, postage prepaid; upon the same business day delivered by confirmed electronic mail transmission provided the transmission occurs during the regular business hours of the recipient (provided that, for a notice of termination, default, or indemnification, a confirmatory copy is thereafter sent by overnight courier); and, in each case, addressed as follows: ASSOCIATION:
Association of Apartment Owners of TK Resort Condominium TBD Ala'Oli Way [______________________________] Lihue, HI 96766 [______________________________] TK Resort Vacation Owners Association TBD Ala'Oli Way [______________________________] Lihue, HI 96766 [______________________________]
COMPANY:
Timbers Exchange, LLC 201 Main Street, Suite 202 Carbondale, Colorado 81623 Email: Attention: Greg Spencer
The addresses and addressees for the purpose of this paragraph may be changed by giving written notice of such change in the manner herein provided for giving notice. 9.8 Authority. The Company and the Association each hereby represents that it is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it was organized, that the person signing below has the full right, power and authority to execute, RESORT AFFILIATION AGREEMENT (Timbers Kauai Residences) DMWEST #13873397 v5
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deliver, and perform this Agreement on its behalf, and that this Agreement constitutes its legal, valid, and binding obligation, enforceable against it in accordance with the terms hereof. 9.9 Counterparts. This Agreement may be executed in identical counterparts, each of which shall be deemed an original for all purposes and both of which, collectively, shall constitute one and the same document. 9.10 Survival. All covenants, agreements, representations, warranties, releases, waivers, and limitations on liability made herein that require observance or performance subsequent to termination of this Agreement shall survive the termination of this Agreement, and shall continue in full force and effect. 9.11 No Third Party Beneficiaries. Nothing herein contained shall be deemed to establish any rights of third parties against the parties hereto; it being the intent that the rights and obligations set forth herein are those of the parties hereto alone, with no third party beneficiary rights intended. [Remainder of Page Intentionally Left Blank]
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EXHIBIT A Program Reference If included in marketing materials or any other graphic presentation:
™ If included in written materials or documents with no graphic presentation: Timbers Reciprocity Program™
RESORT AFFILIATION AGREEMENT (Timbers Kauai Residences) DMWEST #13873397 v5
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