Terms and Conditions

Last Updated: August 29, 2024

Terms and Conditions

1. Purchase Orders. These terms and conditions govern the purchase of goods and services from Intelliplay Inc. (“Company”) by a single-location buyer (“Buyer”) and stand independent of any Master Purchase Agreement (MPA).
2. Purchase Requirements. For each Buyer that wishes to obtain the Solution for a Park, including other affiliates or franchisees of Customer, the applicable Buyer must sign a Purchase Order for such Park and pay a thirty-five percent (35%) deposit of the total amount of that Park’s total equipment and install cost within two (2) weeks of signing the Purchase Order. This is a non-refundable deposit, unless expressly stated otherwise in the relevant 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.
3. Warranty
   1. 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 distributor 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.
   2. 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.
   3. 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.
   4. 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 for the cost of any replacement for a defective Product that fails to satisfy the warranty herein.
4. Ongoing Software Support Fees. In addition to the hardware and software costs listed in a purchase order the Company may:
   1. Charge convenience fees to Buyer’s customers using the Solution to rebuy or upsell time or activities, up to but not exceeding 15% of the cost of the purchase, but this will be set by the Company, based on the Company’s market testing, provided that each customer is notified of the price at the time of purchase.
   2. Reserves the right to add additional services in the future, that may cost extra, including, but not limited to Employee Tracking, Ads in a User App, Capacity Monitoring (to industry standards), and Aggregated Analytics. The base package for the Solution under this Agreement includes guest timing, guest tracking, permissive use, customer rebuy, and in-park leaderboards.
5. Confidentiality of System Data. The Company acknowledges and agrees that before, during and after the term of this Agreement it has had and will continue to have access to confidential and non-public information relating to Buyer, including information about individual location performance, individual location financials, and individual location operations of Buyer; individual purchase history; the terms of the Purchase Order; and other non-public information, materials, documents, trade secrets and know-how relating to Buyer (the “Disaggregated System Data”). The Company agrees that as between Company and Buyer, Buyer is the sole owner of all the Disaggregated System Data (Data that is individually identifiable to a Buyer location), and Company agrees to (and to cause its representatives, affiliates, and employees to): (i) process, retain, use, collect, and disclose Disaggregated System Data strictly to offer the Solution to Buyer and Buyer’s customers in accordance with this Agreement, and not for any other purpose; (ii) process, retain, use, collect, and disclose the Disaggregated System Data strictly in accordance with the policies and instructions of Buyer; (iii) keep confidential and not disclose Disaggregated System Data to any person, except to Buyer or with Buyer’s prior written consent; and (iv) adopt and maintain administrative, physical and technical safeguards to prevent unauthorized use or disclosure of any Disaggregated System Data. Disaggregated System Data does not include information, knowledge, or knowhow, which is lawfully known to the public without violation of applicable law or an obligation to Buyer or its affiliates. Buyer has made any representations or warranties, express or implied, with respect to the Disaggregated System Data. Buyer acknowledges that the Company is in the business of creating gamification technology, re-marketing capabilities, customer tracking technology, and facility management capabilities. In such a business, The Company will derive knowledge and know-how from all its customers, including Buyer. This knowledge can and will be utilized in the Company’s day-to-day business, including with customers not affiliated with Buyer. Furthermore, the data that is created from this process, anonymized and/or in aggregate, is the sole ownership of the Company. Additionally, due to the nature in which end customers are able to transact smoothly on the user app from location to location, these customers, billing information, and related details are retained in a global database. As such, these customers, billing information, and related details become customers of the Company.
6. Term and Termination. This Agreement will continue for an initial and renewal terms as set forth in the Purchase Order, unless either Company or Customer 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 (and in the event of any termination for Company’s breach, Company must refund any and all deposit paid for such applicable Park). Company agrees to notify Buyer of the termination of any Purchase Order.
7. Remedies and Consequential Losses. 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.
8. Intellectual Property Rights & Licensing.
   1. 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.
      1. 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-transferrable, royalty-free license in the United States of America to use the Intellectual Property in connection with the Solution.
      2. 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.
      3. 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.
   2. The Company agrees that neither Customer nor any Buyer has granted the Company or any of its affiliates any rights to any Intellectual Property of Customer and/or its franchise system. The Company may not use any Trademarks of Customer or its system, without the express prior written consent of Customer, which will not be unreasonably withheld, except for the use of Customer’s mark on Company’s website and on marketing materials, during the term of this Agreement.
9. Park Insurance. 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:
   1. Premises operation;
   2. Products and completed operations;
   3. Contractual liability insuring tort obligations assumed by Buyer in this Agreement;
   4. Broad form property damage (including completed operations);
   5. Explosion, collapse, and underground hazards (including subsistence and any other earth movement); and
   6. Personal liability.
10. Assignability. Customer 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 Customer or Company, otherwise neither Customer or Company may assign this Agreement without the prior written consent of the other (but not requiring consent of any Buyer). 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.
11. Notices. 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 as set forth above for Customer and the Company, and the address set forth in each Purchase Order for a Buyer, and/or to such alternative address noticed pursuant to this Paragraph.
12. Choice of Law. 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.
13. Entire Agreement. These terms, together with the applicable Purchase Orders constitutes 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.
14. Waiver. 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.
15. Severability. 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.
16. Relationship of 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.
17. Deemed Effective. 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 Customer to sign it (as indicated by the date stated under that Party’s signature) will be deemed the effective date of this Agreement.
18. Attorneys’ Fees. 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.
19. Counterpart Originals. 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.

EXHIBIT 3 (SERVICE LEVEL AGREEMENT EXEMPLAR)
Exhibit 1: Service Level Agreement (SLA) for Intelliplay Inc.

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.

1. Definitions
   The following definitions apply to this SLA:
   1. Service means a gamification solution (“Solution”) for the Trampoline Park segment of the Family Entertainment Center industry, including smart wristbands, interactive devices, and related services as described in the Master Purchase Agreement
   2. Emergency Maintenance means maintenance required as a result of conditions beyond Intelliplay’s reasonable control. Emergency maintenance may occur at any time, as Intelliplay deems necessary.
   3. Outage means the period (measured in minutes) during which Availability is lower than the applicable service level as defined in Section 2 below, (excluding any Permitted Outage as defined herein). In the event of an Outage, the Intelliplay Customer Service team shall provide notice to Licensee in a timely manner and shall use commercially reasonable efforts to remedy such Outage.
   4. Permitted Outage means any Outage which is caused by one or more of the following:
      1. Activities which Licensee directs, denial of service attacks, natural disasters, changes resulting from government, political, or other regulatory actions or court orders, strikes or labor disputes, acts of civil disobedience, acts of war, acts against parties (including third party carriers or other vendors), or a force majeure event, as described in the Agreement;
      2. Periods of Scheduled Maintenance or Emergency Maintenance activities which result in an Outage;
      3. Licensee-provided content or programming errors including, but not limited to, content installation and integration;
      4. System administration, commands, file transfers performed by Licensee’s representatives;
      5. Work performed at Licensee’s request (for example, additional technical assistance);
      6. Lack of availability or untimely response time from Licensee to respond to incidents that require its participation for source identification and/or resolution, including meeting “Company name” responsibilities for any prerequisite services;
      7. Licensee’s breach of its material obligations under the Agreement;
      8. Licensee’s performance of any, technical security integrity review, penetration test, or vulnerability scan;
      9. An event to which Intelliplay reasonably believes, to the best of its knowledge and experience, that there is no alternative but to cause an Outage in order to resolve an issue, if time is of the essence and the appropriate Licensee individuals are not contactable, Intelliplay may cause the Outage. Any such Outage shall be for as short a time as possible and shall be kept as localized as possible. Intelliplay shall inform Licensee as soon as is reasonably practicable of such Outage; and/or
      10. a force majeure event.
   5. “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.
2. SERVICE LEVEL Availability
   1. 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 (99.9%) percent 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 SLA’s will result in a 10% discount on the next month’s bill.
3. Data Backup
   1. 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.
4. Reports
   1. 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.
5. NOTICES
   1. Notifications required of Intelliplay hereunder will be made available to Licensee via a website designated and provided by Licensee.
6. SLA Default
   1. A “SLA Default” means three (3) Outages (excluding Permitted Outages) caused by separate, unrelated events during a consecutive two (2) month periods, or failure to meet the quarterly up-time requirements.
7. Technical support

Send technical support requests to support@intelliplay.io or at our phone support line (to be provided in the future).

Standard Support Hours:
Monday through Friday: 9:00 AM — 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.