Terms of Use

1. SCOPE; RESTRICTIONS

1.1 The Service. Subject to Customer’s compliance with the terms and conditions of this Agreement, Company hereby agrees that Customer has the right to access and use (i) the services specified in the attached Order Form (collectively, the “Service”) and (ii) the deliverables created and developed pursuant to SOWs (as defined below), in each case, in connection with this Agreement (collectively, the “Deliverables”), during the term of this Agreement for the sole purpose of turning portions of the entertainment facility(ies) specified in the Order Form (e.g., rock climbing walls) into real-life video games - all only in accordance with Company’s applicable user documentation or other Company-provided written instructions (if any) (“Documentation”). The Service is a platform that can be used with a computer and hardware specified by Company to transform portions of entertainment facilities (e.g., rock climbing walls) into real-life video games. . For clarity, the Service is hosted by Company. Customer agrees that it will not engage any third party to provide services for, or consult with regard to, the Service – without Company’s prior written consent. Customer shall comply with all technical specifications and other requirements provided by Company from time to time with respect to the Service.

Customer is responsible for maintaining the confidentiality of all information (e.g., passwords) required to access its instance of the Service and for all use of the Service by its employees, independent contractors or others with access to such information. Customer agrees to notify Company immediately of any unauthorized use of its Company Service accounts. Customer shall change or replace access credentials as soon as possible after receipt of instructions to do so from Company.

1.2 Restrictions. Customer will not (and will not allow any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service or any Deliverables; (ii) modify, translate, or create derivative works based on the Service or any Deliverables; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service or any Deliverables; (iv) use the Service or any Deliverables for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service, any Deliverables or any portion thereof; or (vi) use any Company Confidential Information to create or develop any product or service that competes with or could reasonably compete with the Service or to improve any such product or service. Customer will use the Service and the Deliverables only in compliance with (a) the Order Form, (b) the rights granted hereunder, and (c) in accordance with all applicable laws and regulations.

1.3 Ownership. Except for the rights expressly granted under this Section 1, Company retains all right, title, and interest in and to the Service and the Deliverables (and all data, software, products, works, and other intellectual property created, used, or provided by or on behalf of Company for the purposes of this Agreement). To the extent Customer provides Company with any feedback relating to the Service or any of the Deliverables (including, without limitation, feedback related to usability, performance, interactivity, bug reports and test results) (“Feedback”), Company shall own all right, title and interest in and to such Feedback (and Customer hereby makes all assignments necessary to achieve such ownership).

1.4 Third Party Software. The Service and/or the Deliverables may operate, interface or be delivered with software or other technology (“In-Licensed Code”) that is licensed from and owned by third parties (“In-Licensors”), the use of which may be subject to additional or different terms set forth in the applicable open source or other license described in the Documentation (if any). Customer unconditionally agrees that In-Licensors (i) make no representation or warranty to Customer concerning the In-Licensed Code or the Services or the Deliverables, (ii) have no obligation or liability to Customer as a result of this Agreement and (iii) are intended third party beneficiaries of this Agreement.

1.5 Marketing. The parties shall participate in a joint marketing program mutually developed and agreed upon by the parties, which will contain, at minimum, the elements set forth in the Order Form attached hereto. Customer agrees that any and all photos, videos and other depictions of, and any and all media including such photos, videos or other depictions or mentioning of, the results of the Service (e.g., a rock climbing wall transformed into a real-life video game), in each case, that are made, created or developed by or on behalf of Customer, shall include attribution for Company.

2. SERVICES

2.1 Professional Services. Any professional services (e.g., implementation, improvement, development and customization services and training services) (“Professional Services”) provided by Company will be implemented through one or more statements of work executed by the parties from time to time (each, a “SOW”). This Agreement provides the terms and conditions applicable to all SOWs, and any express modification of these terms and conditions within an SOW will apply only to that SOW in which the modification is set forth. Changes to any SOW shall become effective only when a written change request (each a “Change Control Form”) is executed by authorized representatives of both parties. The non-requesting party will promptly review each such change request and determine and advise the requesting party, in its reasonable discretion but in good faith, whether such change request is acceptable, can be accomplished by Company (if applicable) and whether the performance of such change request will increase the costs and/or delay the original schedule for performing the services. The parties will accept or modify any Change Control Form in writing, and any accepted Change Control Form will be deemed to amend and become part of the applicable SOW, and Company will perform the Professional Services in accordance with such amended SOW. Neither party shall be responsible for any changes in any SOW unless mutually agreed upon in writing in accordance with this procedure.

2.2 Acceptance. Customer shall have a period of ten (10) days from the date of delivery of a Deliverable specified in a SOW to verify that it is in material compliance with the applicable specifications set forth in the applicable SOW. If such Deliverable is not in material compliance with such specifications, then (i) Customer shall notify Company in writing within such period identifying all non-conformities with reasonable specificity and (ii) Company shall use its reasonable commercial efforts to resolve such failure within thirty (30) days following receipt of such notice and resubmit such Deliverable. Following any such resubmission, Customer shall accept or reject the applicable Deliverable in accordance with the acceptance procedures and within the timeframe noted above. Customer’s (a) failure to provide notice of rejection within the specified period or (b) use in a production environment shall be deemed to be acceptance.

2.3 Support. Support for the Service will be provided via email and may be obtained by sending an email to the following email address: __________. Support services also includes access to the Randori Help Center, which may be accessed through the Service.

2.4 Cooperation. Customer acknowledges that the Professional Services and support services provided by Company to Customer under this Agreement (collectively, the “Other Services”) will be performed in cooperation with Customer personnel. In addition, Customer will furnish to Company, in a timely manner, such (i) descriptions, specifications, materials, data and other information (collectively, “Customer Information”) and (ii) cooperation, technical assistance, resources, support and access, for Company to perform the Other Services as contemplated in this Agreement. Customer hereby grants Company a nonexclusive and royalty-free right and license to use the Customer Information solely for the purpose of performing the Other Services as contemplated in this Agreement. Customer agrees that in performing the Other Services, Company (a) will use and rely primarily on the Customer Information and (b) does not assume any responsibility for the accuracy or completeness of any Customer Information, and will not undertake to verify its accuracy or completeness. If Customer fails to fulfill any of its responsibilities under this Section in a timely manner for any reason (including without limitation, changes, errors or omissions in Customer Information), which delays provision of the Other Services or results in additional costs, then Company may act as it deems prudent to mitigate such effects. In such event, Customer agrees (1) to pay Company its reasonable additional costs only to the extent such costs arise from Customer’s acts or omissions and (2) that any delivery dates, milestones or other time limits specified for Company’s performance shall be appropriately extended. Customer represents and warrants that it owns all right, title and interest, or possesses sufficient license rights, in and to the Customer Information as may be necessary to authorize and enable the use thereof by Company as contemplated by this Agreement. If Company receives any notice that its use of certain Customer Information infringes, misappropriates or otherwise violates any rights of any third party, Company may cease using such Customer Information, and Company shall not be liable for, or be considered in breach of or default under the Agreement on account of, failing to provide the Service or Other Services or otherwise failing to meet any other obligation of this Agreement that reasonably requires the use of such Customer Information.

2.5 Ownership. Unless otherwise expressly agreed by the parties in writing in an SOW, Company shall own all right, title and interest (including all intellectual property and other proprietary rights) in and to all Deliverables.

3. PAYMENT OF FEES

Customer will pay Company the fees for the Service as set forth in the Order Form (“Service Fees”), (and for all Professional Services, Customer agrees to pay Company fees in the amounts and at the times specified in the applicable SOW (“Professional Services Fees”). Unless otherwise specified in the Order Form or the SOW (as applicable), all Service Fees and Professional Services Fees will be invoiced in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. For any Service or Professional Services for which fees are billed in arrears, Company will invoice Customer following completion of the Service or Professional Services, as applicable. Unpaid invoices are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all (i) taxes associated with Service or Professional Services other than taxes based on Company’s net income, and (ii) Company’s costs of collection in the event of Customer’s delinquent payment. All fees paid are non-refundable (except as otherwise expressly set forth in the Order Form or the applicable SOW) and not subject to set-off.

4. TERM; TERMINATION

Subject to earlier termination as provided below, this Agreement shall commence on the Effective Date and continue for the initial subscription period specified in the Order Form; thereafter this Agreement will automatically renew for consecutive periods each equal in length to the initial subscription period (unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then current period). Either party may terminate this Agreement in the event the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days (ten (10) days in the case of non-payment) from receipt of written notice thereof. Upon termination of this Agreement, all rights granted herein to Customer will terminate and Customer will make no further use of the Service or any Deliverables. The following provisions, and any and all remedies for breach of this Agreement, will survive termination of this Agreement: Sections 1.2, 1.3, 1.4, 1.5 (the second sentence only), 4, 5, 6 (the last two sentences only), 7, 8, 9 and 10 as well as all license and use restrictions. Notwithstanding the foregoing, Company may suspend access to the Service, or reject processing of any payment/credit card transaction, in the event Company believes there is a breach of this Agreement or otherwise becomes aware of any activities by Customer that is fraudulent, illegal or may adversely affect the Service.

5. CONFIDENTIALITY

During the term of this Agreement, each party (a “Disclosing Party”) may provide the other party (a “Receiving Party”) with confidential and/or proprietary materials and information (“Confidential Information”). All materials and information provided by Disclosing Party to Receiving Party and identified at the time of disclosure as “Confidential” or bearing a similar legend, and all other information that the Receiving Party reasonably should have known was the Confidential Information of the Disclosing Party, shall be considered Confidential Information; for the avoidance of doubt, the Service, the Deliverables and terms of this Agreement are Confidential Information of Company. Receiving Party shall maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the prior written consent of Disclosing Party. Receiving Party will only use the Confidential Information internally for the purposes contemplated hereunder. The obligations in this Section 5 shall not apply to any information that: (i) is made generally available to the public without breach of this Agreement, (ii) is developed by the Receiving Party independently from the Disclosing Party’s Confidential Information, (iii) is lawfully disclosed to Receiving Party by a third party without restriction, or (iv) was in the Receiving Party’s lawful possession without restriction prior to the disclosure to the Receiving Party and was not obtained by the Receiving Party either directly or indirectly from the Disclosing Party. Receiving Party may disclose Confidential Information as required by applicable law or court order; provided that, Receiving Party provides Disclosing Party with prompt written notice thereof and uses its commercially reasonable efforts to limit disclosure. At any time, upon Disclosing Party’s request, Receiving Party shall return to Disclosing Party promptly or destroy all Disclosing Party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof. Notwithstanding the foregoing, (a) Receiving Party may disclose Confidential Information to any third-party to the limited extent necessary to exercise its rights, or perform its obligations, under this Agreement; provided that, all such third parties are bound in writing by obligations of confidentiality and non-use at least as protective of the Disclosing Party’s Confidential Information as this Agreement and Receiving Party shall be responsible and liable for any breaches of confidentiality by any such third parties and (b) all Feedback shall be solely Company’s “Confidential Information.”

6. WARRANTY; DISCLAIMER

Company warrants that it will use commercially reasonable efforts to (i) ensure the Service is available on a 24/7 basis (other than during scheduled maintenance), and (ii) promptly correct all material verifiable defects in the Service of which Company is aware. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, THE SERVICE, THE DELIVERABLES, THE OTHER SERVICES AND THE CUSTOMER INFORMATION ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY NOR ITS LICENSORS MAKE ANY OTHER WARRANTIES, AND TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, CORRECTNESS OR RELIABILITY REGARDING THE USE AND RESULTS, OR THAT USE WILL BE UNINTERRUPTED OR ERROR-FREE, AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE.

7. LIMITATION OF LIABILITY; INDEMNITY

EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW AND EXCEPT IN CONNECTION WITH ANY BREACHES OF SECTION 1.2 (RESTRICTIONS), IN NO EVENT SHALL EITHER PARTY (OR ITS LICENSORS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (I) MATTER BEYOND ITS REASONABLE CONTROL, (II) LOSS OF DATA, LOSS OR INTERRUPTION OF USE OF ANY DELIVERABLE OR SERVICE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, OR (III) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY (OR ITS LICENSORS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY AGGREGATE DAMAGES IN EXCESS OF THE AMOUNTS PAID TO COMPANY BY CUSTOMER HEREUNDER WITH RESPECT TO THE SERVICE OR DELIVERABLE THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF COMPANY (OR ITS LICENSORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

Customer agrees to, at its expense, defend Company and its members, managers, officers, employees and agents (“Company Indemnitees”) against any third party claim or action threatened or brought against any of the Company Indemnitees for any injury or death or property damage arising from or related to such third party’s visit to any of Customer’s facilities. Further, Customer agrees to indemnify and hold harmless Company Indemnitees against any liability, cost, damage, expense and loss of such third party in connection therewith, including reasonable attorneys’ fees and expenses.

8. NON-SOLICITATION

Until one (1) year after termination of this Agreement, Customer will not encourage or solicit any employee or consultant of Company to leave Company for any reason.

9. EXPORT

Customer acknowledges that the Service and Deliverables may be subject to United States export and import controls, and in its activities in connection with this Agreement, Customer shall at all times strictly comply with all laws, regulations and orders, and agrees to commit no act which, directly or indirectly, would violate any United States law, regulation or order, including, without limitation, tax, export and foreign exchange laws, or export controls imposed by the U.S. Export Administration Act of 1979.

10. MISCELLANEOUS

Neither party will be liable for, or be considered in breach of or default under the Agreement on account of, any delay or failure to perform as required by the Agreement as a result of strike, fire, explosion, flood, storm, material shortages, riot, insurrection, governmental acts, labor conditions, acts of God, war, earthquake or any other cause which is beyond the reasonable control of such party. The parties will comply with the additional term and conditions (if any) set forth in the Order Form. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable or transferable by a party except with the other party’s prior written consent; provided that, a party may transfer and assign its rights and obligations under this Agreement without consent to a successor to all or substantially all of its assets or business to which this Agreement relates (whether by sale of stock or assets, merger, consolidation or otherwise). This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and Customer does not have any authority of any kind to bind Company in any respect whatsoever. Any notices in connection with this Agreement will be in writing and sent by first class US mail or major commercial rapid delivery courier service to the address specified on the Order Form (or such other address as may be properly specified by written notice hereunder). This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, without regard to the conflict of law provisions thereof. With respect to all disputes arising in relation to this Agreement, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in Massachusetts. The prevailing party in any action or proceeding to enforce this Agreement will be entitled to recover costs and attorneys’ fees. This Agreement may be executed in one or more counterparts, each of which is an original, but taken together constituting one and the same instrument. Execution of a facsimile copy (including PDF) shall have the same force and effect as execution of an original, and a facsimile signature shall be deemed an original and valid signature.

11. Patent Pending

One or more patent applications have been filed for features and services accessible via the Randori platform.