The terms that govern the purchase of Intelliplay equipment, software and services by a single-location buyer, including the Service Level Agreement.
These terms and conditions (“Terms”) govern the purchase of goods and services (collectively, the “Solution”) from Intelliplay Inc. (“Company”) by a single-location buyer (“Buyer”) and stand independent of any Master Purchase Agreement (“MPA”). Each “Purchase Order” and the Service Level Agreement attached as Exhibit 1 (“SLA”) are incorporated into and form part of these Terms (together, this “Agreement”). In the event of a conflict, the order of precedence is: (1) the applicable Purchase Order; (2) the SLA; (3) the Schedule of Standard Rates (Exhibit 2); (4) these Terms; and, only where an MPA exists and expressly applies to the Buyer, (5) the MPA. Where no MPA applies to a Buyer, references in this Agreement to “Customer” mean the Buyer.
For each Buyer that wishes to obtain the Solution for a Park, including other affiliates or franchisees of Buyer, the applicable Buyer must sign a Purchase Order for such Park and pay a thirty-five percent (35%) deposit of that Park’s total equipment and install cost within two (2) weeks of signing the Purchase Order. The remaining sixty-five percent (65%) must be paid six (6) weeks before the Company’s network install date. The Company understands that each Buyer will be exclusively responsible for its own Purchase Order and any payment or liabilities thereunder.
All amounts paid under any Purchase Order, including the deposit, the remaining balance, and all payments for equipment, installation, software, and services are fully earned by the Company upon receipt and are non-refundable once paid, whether or not the Solution is activated or used, except as expressly stated otherwise in the relevant Purchase Order. No termination, expiration, non-renewal, or cancellation of this Agreement or any Purchase Order, for any reason, shall entitle Buyer to any refund, credit, chargeback, or offset of amounts already paid. Buyer waives any right to dispute or reverse any payment made under a Purchase Order except in the case of the Company’s written agreement to a refund. Notwithstanding the foregoing, if the Company fails to deliver the Solution by the network install and go-live dates set in the applicable Purchase Order, the Company is notified of the failure by Buyer, and such failure is not cured within sixty (60) days and is not caused by Buyer or a force majeure event, Buyer’s sole remedy is a refund of amounts paid for the undelivered Solution.
All amounts are exclusive of sales, use, excise, and similar taxes. Buyer is responsible for all such taxes arising from a Purchase Order, other than taxes on the Company’s net income.
Overdue amounts accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law, from the due date until paid. If any amount is more than ten (10) days overdue, the Company may, upon written notice, suspend delivery, installation, or operation of the Solution until all overdue amounts (with interest) are paid, without relieving Buyer of its payment obligations.
Except for the stated warranty set forth on, or included with, the products and software as delivered to each Buyer as part of the Solution and/or outlined on any applicable Purchase Order or SLA (“Products”), the warranty and remedy set forth in this Agreement are exclusive and all other warranties, guarantees or representations, express or implied, by Company with respect to the Products, including, without limitation, warranties of merchantability and fitness for a particular purpose, and any other obligation or liability of Company to Buyer or to any third party with respect to the Products, are hereby disclaimed entirely. Each Product warranty is contingent upon proper use in all material respects of a Product in the application for which such Product was intended and does not cover Products that were modified and/or altered in whole or in part without Company’s prior written approval, that have expired or that were subjected to physical, chemical or electrical stress that the Products were not originally designed for and/or that could not have been reasonably foreseen.
Each Product is warranted to be free from defects in workmanship and materials and to function for its intended purpose, both at the time of delivery and for a period of 24 months after delivery of such Product. This warranty is limited to the replacement of the Product on the terms described below. OTHER THAN AS EXPRESSLY DESCRIBED IN THIS AGREEMENT, ANY APPLICABLE PURCHASE ORDER, OR THE SLA, NO OTHER WARRANTY, EXPRESS, WRITTEN, OR IMPLIED, IS GIVEN BY COMPANY and no representation, warranty or affirmation of any employee, contractor, agent, detailer, distributor or any other person actually or purporting to represent the Company, by word or action, will constitute a warranty and such word or action does not, and will not, expand or change the express warranty given in this Limited Warranty. COMPANY EXPRESSLY DISCLAIMS ANY OTHER EXPRESS OR IMPLIED WARRANTY OF ANY KIND OTHER THAN AS EXPRESSLY DESCRIBED IN THIS AGREEMENT, ANY APPLICABLE PURCHASE ORDER, OR THE SLA, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY LAW, CUSTOM, CONDUCT, USAGE OR TRADE.
If any Product is defective during the first 12 months after delivery, then within 10 days of notice of defect from the Buyer, Company will provide a replacement Product, without installation services, for any defective Product.
If any Product is defective after 12 months from the time of delivery and up to 24 months from the time of delivery, Company will provide 50% off the cost of a direct replacement for a defective Product that fails to satisfy the warranty herein.
In addition to the hardware and software costs listed in a purchase order the Company may:
Services outside the scope of the base Solution and the SLA, including out-of-scope support, troubleshooting, travel, reinstallation, and any work arising from Buyer’s failure to complete validation or from installation not performed to Company specifications, will be billed at the Company’s then-current “Standard Rates,” set out in the Schedule of Standard Rates (Exhibit 2) provided to Buyer. The Standard Rates in effect on the Purchase Order date apply through the initial term; the Company may update the Schedule no more than once per twelve (12) months on thirty (30) days’ notice. Travel and third-party expenses are billed at cost.
The Company acknowledges that, in the course of providing the Solution, it will have access to confidential and non-public information of Buyer, including information relating to individual location performance, financials, operations, purchase history, and other proprietary materials (collectively, “Disaggregated System Data”). As between the parties, Buyer retains all right, title, and interest in Disaggregated System Data that is identifiable to a specific Buyer location. The Company agrees to: (i) use such Disaggregated System Data solely to provide and improve the Solution in accordance with this Agreement; (ii) comply with Buyer’s reasonable policies and instructions regarding such data; (iii) maintain the confidentiality of such data and not disclose it to any third party without Buyer’s prior written consent, except as required by law; and (iv) implement appropriate administrative, technical, and physical safeguards to protect such data. Notwithstanding the foregoing, the Company retains all rights, title, and interest in: (a) data that is aggregated, anonymized, or de-identified such that it does not identify Buyer or any specific location; (b) system-generated data, analytics, insights, and performance metrics derived from use of the Solution; and (c) all general knowledge, know-how, methodologies, and improvements developed through provision of the Solution. The Company may use such information for its business purposes, including improving its products and services and supporting other customers. Buyer acknowledges that certain end-customer information, including customer profiles, billing information, and transaction data, may be maintained within the Company’s global system to enable seamless functionality across locations. To the extent such information is processed through the Company’s platform, it may be retained and used by the Company in accordance with this Agreement and applicable law. Notwithstanding anything to the contrary, the Company may process, use, and disclose Disaggregated System Data in aggregated and/or anonymized form, provided that such data does not identify Buyer or any specific Buyer location. For purposes of this Agreement, “anonymized” means data that has had all identifying information removed such that the original source cannot reasonably be identified. The Company shall retain all rights, title, and interest in such aggregated and anonymized data and may use it for its own lawful business purposes, including but not limited to analytics, benchmarking, product development, marketing, and promotional activities. For clarity, the Company will not use or disclose Disaggregated System Data in a manner that identifies Buyer or its locations without Buyer’s prior written consent. This Section does not apply to information that is publicly available through no breach of this Agreement or that was lawfully known to the Company without obligation of confidentiality.
This Agreement will continue for initial and renewal terms as set forth in the Purchase Order, unless either Company or Buyer gives notice to the other of non-renewal at least 90 days in advance of such expiration. Notwithstanding the foregoing, either Company or Buyer may terminate this Agreement with notice to the other, if the other has breached the terms of this Agreement and failed to cure such breach within 30 days of notice from the non-breaching Party. Either Company or Buyer may terminate any such Buyer’s applicable Purchase Order (and by reference such Buyer’s participation under this Agreement) if the other has breached the terms of this Agreement and/or such Purchase Order and failed to cure such breach within 30 days of notice from such non-breaching Party. Company agrees to notify Buyer of the termination of any Purchase Order.
The following provisions survive any termination or expiration of this Agreement: Section 2.1 (Non-Refundable Payments), Section 5 (Confidentiality of System Data), Section 7 (including the limitation of liability), Section 8 (Intellectual Property), Section 20 (Indemnification), Section 12 (Choice of Law), and Section 18 (Attorneys’ Fees).
NOTWITHSTANDING ANYTHING ELSE CONTAINED IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL ANY PARTY BE LIABLE TO THE OTHER PARTY FOR, AND EACH PARTY AGREES TO RELEASE THE OTHER PARTY FROM (A) ANY CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOST BUSINESS OPPORTUNITY, LOSS OR INABILITY TO USE PROPERTY OR EQUIPMENT, BUSINESS INTERRUPTION, AND (B) EXEMPLARY AND/OR PUNITIVE DAMAGES.
EXCEPT FOR (I) A PARTY’S INDEMNIFICATION OBLIGATIONS, (II) BUYER’S PAYMENT OBLIGATIONS, AND (III) A PARTY’S BREACH OF CONFIDENTIALITY OR OF THE COMPANY’S INTELLECTUAL PROPERTY RIGHTS, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNTS PAID BY BUYER UNDER THE APPLICABLE PURCHASE ORDER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THIS LIMITATION APPLIES REGARDLESS OF THE FORM OF ACTION AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Company, whether directly or via affiliated entities, subsidiaries, etc., owns Intellectual Property related to the Solution. “Intellectual Property” means all intellectual property and proprietary rights, including (i) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications, and patent and invention disclosures, together with all provisionals, reissuances, continuations, continuations-in-part, divisions, revisions, extensions, and reexaminations thereof, (ii) all trademarks, service marks, trade dress, logos, slogans, brand names, trade names, domain names, and business and product names, and all applications and registrations therefor, and all extensions and renewals thereof, and all goodwill of the business connected with the use of and symbolized by the foregoing (the “Trademarks”), (iii) all copyrights and copyrightable works, all mask works, industrial designs, and protectible designs, and all applications and registrations therefor, and all extensions and renewals thereof, (iv) all trade secrets and confidential business information (including research and development, know-how, formulae, compositions, processes, techniques, methodologies, technical information, designs, industrial models, manufacturing, engineering and technical drawings, specifications, research records, records of inventions, test information, customer and supplier lists, customer data, pricing and cost information, and business and marketing plans and proposals), (v) all software, and all electronic data, databases and data collections, and (vi) all rights to use all of the foregoing and all other rights in, to, and under the foregoing.
Subject to the terms and conditions of this Agreement, and performance of each Buyer’s obligations under this Agreement (including, but not limited to, the terms of any specific Purchase Order) Company grants to each Buyer a non-exclusive, non-transferable, royalty-free license in the United States of America to use the Intellectual Property in connection with the Solution.
Each Buyer acknowledges and agrees that it shall not, at any time, file any application to register, or otherwise claim ownership of, the Intellectual Property anywhere in the world.
Each Buyer acknowledges that any terms regarding intellectual property and/or licensing contained in the SLA which may differ from those in this Agreement shall control with respect to the subject matter of the SLA.
The Company agrees that no Buyer has granted the Company or any of its affiliates any rights to any Intellectual Property of Buyer. The Company may not use any Trademarks of Buyer, without the express prior written consent of Buyer, which will not be unreasonably withheld. Notwithstanding the foregoing, Company may use Buyer’s logo on Company’s website and on marketing materials, during the term of this Agreement.
Each Buyer by executing a Purchase Order represents and warrants that its Park in which the Solution is integrated shall maintain commercially reasonable Comprehensive General Liability Insurance with limits of not less than $1,000,000.00 per occurrence covering all operations by or on behalf of such Buyer providing insurance for bodily injury, liability, and property damage liability for the limits of liability indicated below and including, but not limited to, coverage for:
Buyer shall name the Company as an additional insured on the foregoing Comprehensive General Liability policy, and such coverage shall be primary and non-contributory. Upon the Company’s request, Buyer shall provide a certificate of insurance evidencing the required coverage and shall provide at least thirty (30) days’ notice before cancellation or material reduction of coverage.
Buyer and Company may each assign this Agreement to an affiliate and/or successor interest, including any entity that acquires all or substantially all the assets or operations of Buyer or Company. Otherwise, neither Buyer nor Company may assign this Agreement without the prior written consent of the other. No Buyer shall assign or subcontract this Agreement, without the prior written consent of the Company, other than to the bona fide purchaser of the applicable Park at which the Solution is integrated. Any attempted assignment not in compliance with the terms of this Paragraph shall be void and of no force or effect. This Agreement and each transaction hereunder shall inure to, and be binding upon, the respective successors and permitted assigns of the Parties.
Any notice to be given hereunder by either Party to the other shall be in writing and personally delivered, or mailed certified, return receipt requested, to the other Party at its address set forth in the applicable Purchase Order (for Buyer) and on the Company’s signature block (for the Company), and/or to such alternative address noticed pursuant to this Paragraph.
The Parties agree this Agreement and the Purchase Order(s) shall be construed, interpreted, and governed by the laws of the State of Texas, and that in the event a dispute directly or indirectly arises from this Agreement, the Purchase Order(s), and/or delivery, condition, or installation of the Solution, any legal action shall be administered and subject to binding arbitration before the American Arbitration Association (the “AAA”) in Dallas County, Texas. Each Party expressly submits to jurisdiction and venue of any such dispute before the AAA in Dallas County, Texas, and waives any objection to such jurisdiction or venue. Any arbitration proceeding will be conducted in accordance with the AAA’s Commercial Arbitration Rules and Mediation Procedures. Any such proceeding shall be governed by the substantive and procedural laws of the State of Texas, including discovery and motion practice. Arbitration shall be decided by one (1) arbitrator as decided by the parties; in the event the parties cannot agree, they submit the decision to the AAA, who shall select an arbitrator other than any identified by the parties. THE PARTIES KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY AND ALL CLAIMS, COUNTERCLAIMS OR CAUSES OF ACTION ARISING FROM OR RELATING TO THE AGREEMENT AND KNOWINGLY SUBMIT TO BINDING ARBITRATION. Notwithstanding the agreement to arbitrate, either Party may seek temporary, preliminary, or permanent injunctive or other equitable relief in any court of competent jurisdiction to prevent or stop a breach of confidentiality (Section 5) or of intellectual property rights (Section 8), without waiving the right to arbitrate the underlying dispute.
These terms, together with the applicable Purchase Orders, constitute the entire agreement between the Parties and shall govern the relationship of the Parties notwithstanding any previous written agreement and/or any previous or subsequent oral understandings or agreements.
A Party’s failure to complain or exercise its remedies on account of the other Party’s breach or violation of this Agreement shall not be implied or imputed as a waiver of any provision or condition of this Agreement.
If any provision of this Agreement is found to be invalid or unenforceable, said invalid or unenforceable provision shall be disregarded only to the extent of its invalidity or unenforceability, and the balance of the provision and this Agreement shall be enforced as the integrated written agreement of the Parties.
Each party to this Agreement is an independent contractor, and neither party is, nor will claim to be, a legal representative, partner, franchisee, agent or employee of the other. Any Buyer’s use of any third party services or content accessed through the Solution shall be governed by any agreement entered into between such Buyer and such third party, and Company shall have no liability relating thereto.
This Agreement will become effective when signed and delivered by each of the Parties. The date this Agreement is signed by the last of the Company or Buyer to sign it (as indicated by the date stated under that Party’s signature) will be deemed the effective date of this Agreement.
The Parties agree that in any suit brought by one Party against the other, the prevailing Party shall be entitled to recover its reasonable costs and attorneys’ fees to the fullest extent allowed by law. Each Party, to the extent permitted by law, knowingly, voluntarily, and intentionally waives its right to a trial by jury in any action or other legal proceeding arising out of, or relating to, this Agreement.
This Agreement may be executed in a number of identical counterparts which, taken together, shall constitute collectively one (1) agreement. This Agreement may be executed by Company and Buyer by portable document format (.pdf) signature, such that the execution of this Agreement by portable document format (.pdf) signature shall be deemed effective for all purposes as though this Agreement was executed as a “blue ink” original.
Buyer will defend, indemnify, and hold harmless the Company and its affiliates, officers, and employees from and against any third-party claims, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to (a) operation of the Park or any bodily injury, death, or property damage occurring at the Park; (b) Buyer’s use or misuse of the Solution in breach of this Agreement; (c) content, data, or instructions Buyer provides; and (d) Buyer’s failure to obtain any required end-customer notices or consents.
The Company will defend, indemnify, and hold harmless Buyer from and against third-party claims that the Solution, as provided and used in accordance with this Agreement, infringes a United States patent, copyright, or trademark, and will pay damages finally awarded; provided that the Company’s obligations under this Section 20.2 are subject to the limitation of liability in Section 7.1 and do not apply to claims arising from Buyer’s modifications, combinations, or use outside the scope of this Agreement. This Section 20.2 states the Company’s entire liability for intellectual property infringement.
Neither Party will be liable for any delay or failure to perform (other than payment obligations) to the extent caused by events beyond its reasonable control, including acts of God, natural disasters, fire, flood, epidemic or pandemic, war, terrorism, civil disturbance, labor disputes, governmental action, and utility, carrier, internet, or third-party service failures. The affected Party will use commercially reasonable efforts to resume performance.
Each Party will comply with all privacy and data protection laws applicable to its performance under this Agreement. As between the Parties, Buyer is responsible for providing all notices to, and obtaining all consents from, end-customers (and, where required, their parents or guardians) necessary for the collection, use, and processing of end-customer data through the Solution, including any notice or consent required under COPPA, the CCPA/CPRA, and applicable state biometric-privacy laws. Buyer represents that it has the right to permit the Company to process end-customer data as contemplated by this Agreement. The Company will maintain administrative, technical, and physical safeguards designed to protect such data consistent with Section 5.
This Exhibit is incorporated into and made a part of the Agreement to which it is attached. Capitalized terms used and not defined herein shall have the meanings given such terms in the Agreement.
The following definitions apply to this SLA:
Permitted Outage means any Outage which is caused by one or more of the following:
Scheduled Maintenance means the period of time during which Intelliplay performs scheduled maintenance, making reasonably commercial efforts to schedule related outages for essential maintenance and updating which will occur on off-hours and shall not be planned to occur more than twelve (12) times during a calendar year. Intelliplay will make reasonable efforts to provide at least one (1) day’s advance notice for standard maintenance, and thirty (30) minutes advance notice for Emergency Maintenance. Intelliplay reserves the right to extend or change the time periods of the Scheduled Maintenance.
Availability. Intelliplay will use reasonable commercial efforts to ensure that the Service will meet or exceed the “Availability”, defined as meaning that the network will be available ninety-nine point nine percent (99.9%) of the time, seven (7) days a week, twenty-four (24) hours per day, as calculated at the end of a rolling three (3)-month period. Availability shall exclude, and Intelliplay shall not be responsible for, any Outage which occurs as a result of a Permitted Outage. Failure to meet the applicable SLA will result in a 10% discount on the next month’s bill.
Intelliplay will use reasonable commercial efforts to ensure that the Service will back up database information to an offsite location every twenty-four (24) hours. Data will be stored on back-up servers for a maximum of thirty (30) days.
If, at the end of each calendar quarter, the average Availability percentage for that preceding quarter is less than 99.9%, Intelliplay shall measure and report its performance of up-time, with and without Scheduled Maintenance, for such calendar quarter.
Notifications required of Intelliplay hereunder will be made available to Buyer via a website designated and provided by Intelliplay.
A “SLA Default” means three (3) Outages (excluding Permitted Outages) caused by separate, unrelated events during any two (2) consecutive month period, or failure to meet the quarterly up-time requirements.
Technical support requests can be sent to support@intelliplay.io or called in to (844) 449-9815 Option 1.
Standard Support Hours: Monday through Friday, 9:00 AM to 5:00 PM EST (excluding U.S. Federal Holidays). Support hours may be adjusted, in Intelliplay’s sole discretion, but they will never go below this minimum threshold. Requests will be responded to by the end of the next business day for all non-emergency support needs.
Emergency Support Hours: Standard Support Hours, plus Monday through Friday 5:00 PM to 9:00 PM EST; Saturday and Sunday 9:00 AM to 9:00 PM EST; Federal Holidays 9:00 AM to 9:00 PM EST.
Support requested outside the scope or hours described above is billed at the Company’s Standard Rates (Exhibit 2).