Last Revised: 09 February 2021
TERMS AND CONDITIONS FOR FRANCHISEES OF CIRCUSTRIX
These Roller terms and conditions for franchisees of CircusTrix, LLC (“Franchisee Terms”) combined with any Order Forms and all attachments and amendments hereto form the Roller Platform Agreement for Franchisees of CircusTrix, LLC (the “Agreement”). The Agreement is between Roller and the Franchisee listed in any Order Form and governs the use and provision of any Services purchased by Franchisee as described in any Order Form. Terms not defined herein have the meaning given to them in the applicable Order Form.
In consideration of the terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
TERMS AND CONDITIONS:
1.DEFINITIONS AND INTERPRETATION
In this Agreement, the following definitions apply:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control” refers to the power to direct or cause the direction of the subject entity, whether through ownership of voting securities, by contract or otherwise..
“Attendee” means an individual (parent and/or child) who attends a Franchisee Park, is registered as an Attendee of a Franchisee Park through the Roller Services or who interacts with the Roller Services remotely, provided, however, that Attendee will not include employees and agents of Franchisee acting within the scope of their employment or agency.
“Attendee Data” means Personal Data of an Attendee uploaded into the Roller Services by an Attendee or by Franchisee.
“Business Day” means a day other than a Saturday, Sunday or public holiday in the Territory.
“Confidential Information” means all written or oral information, disclosed by one party (the “disclosing party”) to the other (the “recipient”), related to the business, products, services or operations of the disclosing party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential, including, without limitation: trade secrets, know-how, inventions, techniques, processes, programs, schematics, software source documents, data, customer lists, financial information, and sales and marketing plans. For the avoidance of doubt, Confidential Information does not include Attendee Data, the use and protection of which is governed by Section 10 (Attendee Data).
“Credit Card Network Rules” mean the applicable bylaws, rules and regulations published by the Credit Card Networks from time to time.
“Credit Card Networks” mean the card-based payment networks including (but not limited to) Visa, MasterCard, and American Express.
“Fees” mean all fees due to Roller pursuant to any Order Form, including the Platform Setup Fee, the Platform Use Fee, and the Self Serve Kiosk Fee.
“Force Majeure Event” means an event beyond the affected party’s reasonable control, including (without limitation) accidents, severe weather events, acts of God, actions of any government agency, epidemic, pandemic, acts of terrorism, or the stability or availability of the Internet or a portion thereof.
“Franchisee” means the person or entity identified in any Order Form as Franchisee.
“Franchisee Content” means the data or content, including logos, designs, copy, images and related materials of Franchisee in any format, uploaded through the Roller Services by or on behalf of Franchisee or otherwise identified as Franchisee Content in an Order Form. For the avoidance of doubt, Franchisee Content may contain Personal Data.
“Franchisee Trampoline Park” means a venue whose primary or substantial purpose is to provide trampoline park access to end customers and whose annual revenue does not exceed $10 million.
“Intellectual Property” means any and all tangible and intangible: (a) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof, (b) trademark and trade name rights and similar rights, (c) trade secret rights, (d) patents, designs, algorithms and other industrial property rights, (e) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise, and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
“Kiosk” means a computing device, whether mobile or stationary, that enables Attendees to interact with the Roller Services.
“Malicious Code” means viruses, worms, logic bombs, Trojan horses and other harmful or malicious codes, files, scripts, agents or other computer programming codes which will impair use and development of the Service.
“Order Form” means a document signed by an authorized representative of each party identifying the specific Service(s) to be made available, the fees to be paid and other relevant customized terms and conditions, if any.
“Order Term” means the term of any Order Form, as set forth in the Order Form.
“Park Start Date” means the earlier of the: (a) date that the Roller Services are live and available for use by any Attendee in connection with any particular Franchisee Trampoline Park and (b) ten (10) days after Roller notifies Franchisee that the Platform Setup Services have been completed and that the Roller Services are ready to go live and be available for use by any Attendee in connection with any particular Franchisee Trampoline Park.
“Personal Data” or “Personal Information” means personally identifiable information contained within the data provided to or accessed by Roller by or on behalf of Franchisee or Franchisee’s end users in connection with the Services, including a natural person’s name, street address, telephone number, e-mail address, photograph, social security number, driver’s license number, passport number or user or account number, or any other piece of information that allows the identification of a natural person or is otherwise considered personally identifiable information or personal data under applicable law.
“Platform” means software, hardware, intellectual property rights and other technology underlying the Roller Services.
“Platform Setup Fees” means the fees payable for the Platform Setup Services as set forth in the applicable Order Form.
“Platform Setup Services” mean the setup services provided to the Franchisee as set forth in any Order Form.
“Platform Use Fee” means the fee payable by Franchisee in respect of use of the Platform and Roller Services as set forth in any Order Form.
“Roller Services” means the venue management, software-as-aservices offering that CircusTrix and Roller agreed would be made available to Franchisees under the terms of this Agreement.
“Self-Serve Kiosk Software Module” means Roller’s proprietary software that is made available as the Self-Serve Kiosk Software Module, which module is, for the avoidance of doubt, software and does not include any hardware.
“Self-Serve Kiosk Fee or SSK Fee” means the fee payable by Franchisee in respect of use of the Self-Serve Kiosk Software Module as set forth in any Order Form.
“Service Levels” mean the service levels set out in Schedule A.
“Services” mean any services made available by Roller to Franchisee pursuant to any Order Form, including the Roller Services, Platform Setup Services, and the Support Services.
“Support Services” mean Roller’s standard training and support services for the Roller Services, as such services may be modified by Roller from time to time.
“Trademark” means any trademark, trade name, service mark, service name, brand, business name, trade dress, logo, other indicia of origin, and the goodwill and activities associated therewith
“Valid Payment Method” means a method of payment stored in the Roller Platform, that is valid and capable of being used by Roller at any time for the purposes of processing payments due under this, or any other Agreement made with Roller.
1.2 In this Agreement, unless the contrary intention appears otherwise:
- headings are for convenience only and do not affect interpretation;
- words importing the singular include the plural and vice versa;
- other grammatical forms of a word or phrase defined in this Agreement have a corresponding meaning;
- an expression importing a natural person includes a partnership, joint venture, association, corporation, trading trust or other corporate body or government agency;
- a reference to anything includes a part of that thing;
- a reference to any statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing them and a reference to a statute includes all regulations, proclamations, ordinances and bylaws issued under that statute;
- a reference to a document includes an amendment or supplement to, or replacement or novation of, that document;
- a reference to a party to a document, including this Agreement, includes that party’s successors and permitted assigns (immediate or otherwise);
- a reference to a Section, annexure, appendix or schedule is a reference to a Section in or annexure, appendix or schedule to this Agreement;
- where the day on or by which anything is to be done is not a Business Day, that thing must be done on or by the next Business Day; and
- the words “include,” “including,” “for example,” or “such as,” when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind.
2. ORDERING AND SERVICES
2.1 Ordering. The Services to be provided by Roller under this Agreement will be described and set forth in one or more Order Forms agreed upon by the parties from time to time. Roller will have no obligation to perform any Services until the parties enter into an Order Form for such Services.
2.2 Franchisee Ordering. In the event that Franchisee and Roller amend the Corporate Agreement (each a “Corporate Agreement Amendment”), any and all Amendments will be enforceable against each Franchisee that has executed a Franchisee Order Form upon notice to Franchisee unless Roller has agreed with Franchisee in the applicable Amendment that the Amendment, or specific provisions within the Amendment, do not apply to Franchisees. Roller may provide any such notice of change within the Roller Services.
2.3 Platform Setup Services. In accordance with any Order Form, Roller will provide the Platform Setup Services to Franchisee in connection with the Franchisee Trampoline Park identified in the Order Form. It is the expectation of the parties that such Platform Setup Services will be completed with no more than six (6) person-hours of labor. In the unlikely event that Franchisee requests, or other circumstances cause the number of hours required to perform the Platform Setup Services to exceed six (6) hours, Franchisee will pay (on a pro rata basis) Roller’s then current standard hourly rate for any hours in excess of six (6) hours, which is, as of the Effective Date, $250 per hour.
2.4 Provision of Services. Subject to the terms and conditions of this Agreement, Roller will provide the Services to Franchisee in a workmanlike and professional manner in accordance with industry standards. Roller will use commercially reasonable efforts to: (a) provide the Roller Services in accordance with the service level requirements set forth in Schedule A and (b) ensure that the Roller Services are free of Malicious Code.
2.5 Continuous Development. Roller may continually develop, deliver and provide to Franchisee ongoing innovation to the Services, including the Roller Services, in the form of new functionality, including new features and efficiencies. Accordingly, Roller reserves the right to modify the Services, or any Roller Service, from time to time. Some modifications will be provided to Franchisee at no additional charge. In the event Roller adds functionality, Roller may condition the implementation of such functionality on Franchisee’s payment of additional fees provided Franchisee generally charges other customers additional fees in connection with such new functionality.
2.6 Feedback. Roller, in its sole discretion, may utilize all comments and suggestions, whether written or oral, furnished by Franchisee to Roller, including such comments and suggestions of Authorized Users, in connection with its access to and use of the Services (all comments and suggestions provided by Franchisee hereunder constitute, collectively, the “Feedback”). Franchisee hereby grants Roller, on behalf of itself and its Authorized Users, a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into Roller products and services.
3. ACCESS, RESTRICTIONS AND LICENSES
3.1 Access Grant to Roller Services. Subject to Franchisee’s compliance with the terms and conditions contained in this Agreement, Roller hereby grants to Franchisee a nonexclusive, non-transferable, non-sublicenseable, revocable right to allow employees and consultants authorized by Franchisee (“Authorized Users”) to access and use the Roller Services for the Order Term. Franchisee’s access and use of the Roller Services is limited to Franchisee’s internal use only and to enable Attendees to use the Roller Services. Such rights granted in this Section 1 will inure to the benefit of any Roller successor or assign.
3.2 Access Credentials. Franchisee will safeguard, and ensure that all Authorized Users safeguard, their applicable username and password. Franchisee will be responsible for all acts and omissions of Authorized Users. Franchisee will notify Roller immediately if it learns of any unauthorized use of any username or password or any other known or suspected breach of security.
3.3 Franchisee Restrictions. Franchisee will not (and will not permit any Attendee or any third party to: (a) adapt, alter, modify, improve, translate, create derivative works of, or distribute the Roller Services or any materials available through the Roller Services (other than the Franchisee Content), (b) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain the source code to all or any portion of the Roller Services; (c) except for Attendees, provide any third party access to the Roller Services or use the Roller Services on behalf of any third party, including as part of a time-sharing, outsourcing or service bureau environment; scrape, store, publish, transmit, transfer, communicate, distribute or disseminate, any materials contained within the Roller Services (other than the Franchisee Content); (d) access all or any part of the Platform or Roller Services in order to build a product that competes with the Platform or any part of Roller’s business; (e) use the Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (f) use the Platform to store or transmit Malicious Code; (g) interfere with or disrupt the integrity or performance of the Platform or the Roller Services; (h) use the Roller Services to process any transactions that violate any law, including any privacy or data security law or the Credit Card Network Rules or is fraudulent or criminal in nature. Franchisee will notify Roller promptly of any matters in Section 3 of which it becomes aware.
3.4 Reservation of Rights. Except for the limited licenses and access grant provided to Franchisee in this Agreement, including any Order Form, Roller reserves all right, title and interest in its Intellectual Property and business including the Platform, Roller Services and any Roller trademarks. Unless otherwise expressly set forth in any Order Form or SOW, and except for any Franchisee Content, all work product or services provided or developed pursuant to this Agreement, any Order Form, or any SOW (including any modifications and improvements to any Roller Services, and all intellectual property and other proprietary rights derived therefrom) will be the sole and exclusive property of Roller.
4. CUSTOMER’S OBLIGATIONS
4.1 Uploading of Franchisee Content and License. Franchisee will, in accordance with the user guidelines, upload the Franchisee Content through the Platform. Franchisee is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Franchisee Content. Franchisee will obtain all third party licenses, consents and permissions needed for Roller to use the Franchisee Content, including any Personal Information of Attendees. Franchisee grants to Roller a worldwide, nonexclusive, fully-paid up, royalty-free license to use the Franchisee Content as reasonably necessary to provide the Services and to otherwise perform any obligation under this Agreement. Except for the limited licenses granted to Vendor in any Franchisee Content, as between Franchisee and Vendor, Franchisee reserves all right, title and interest in the Franchisee Content.
4.2 Reasonable Assistance. Franchisee agrees to provide to Roller promptly, all instructions, assistance and access to information relevant to enable Roller to perform the Services and deliver the Services and will promptly update Roller where there has been a material change to those instructions and information which affects the delivery of the Services.
4.3 Accident Waiver and Liability Releases. Franchisee is solely responsible to draft and maintain any accident waiver that disclaims liability related to Attendee’s use of the Franchisee Trampoline Parks. Franchisee acknowledges that Roller does not review any such waiver. Franchisee, in consultation with its own counsel, is solely responsible for determining the scope and enforceability of such waiver.
4.4 Gift Card Rules. Franchisee is solely responsible for drafting, maintaining and complying with any rules regarding the distribution and use of gift cards made available through the Platform. Franchisee acknowledges that Roller does not review any such rules. Franchisee, in consultation with its own counsel, is solely responsible for determining its compliance with applicable gift card laws.
4.5 Compliance With Law. Each party is solely responsible for its compliance with all applicable local, state, national and foreign laws applicable to it including: (a) licenses and registration requirements for the operation of its business activities; (b) that its business practices are not unfair or deceptive; and (c) that it has not violated any law regarding trade in foreign jurisdictions, including the Foreign Corrupt Practices Act, which prohibits, in part, any offer, payment, promise, or gift or transfer of money, anything of value to any Government Official (or family member or representative of such Government Official) to obtain, retain or direct business or to secure any commercial advantage. Without limiting the foregoing, Franchisee will comply with all consumer protections laws and laws regarding the collection, use and disclosure of Personal Information.
4.6 Reasonable Safeguards. Franchisee agrees to have in place reasonable safeguards, precautions and security procedures designed to: protect the Platform from access or use by unauthorised access and use; and protect Roller’s information technology systems, including implementing reasonable procedures to guard against Malicious Code, unauthorized interception, access, use or loss. Franchisee will notify Roller promptly of any matters in Section 4.6 of which it becomes aware.
4.7. Payment Methods.
There are two types of payment processing options Franchisee may be approved to use in connection with the Services: (i) “ROLLER Payment Processing,” “RPP,” or the “RPP Service,” in which ROLLER acts as Customer’s limited payment collection agent through its Payment Processing Partners, and (ii) “Approved Payment Processors” or “APP,” which consists of collecting all transactions via the Services using third party payment services, such as Worldpay or Braintree; o (a) If Customer uses RPP as part of the Services, Customer agrees to also be bound by our ROLLER Payments Terms of Service
, which is incorporated herein by reference. (b) If Customer does not use RPP as part of the Services, Customer is required to use an APP in accordance with section 4.8 below.
4.8 Approved Payment Processors. Franchisee will maintain, throughout the term, a contractual relationship with a payment processor on the list of supported payment processors made available by Roller at https://www.roller.software/sub-processors, which list may change from time to time (each an “Approved Payment Processor”). Without limiting the foregoing, in connection with this Agreement: o Franchisee remains fully responsible for ensuring that the Approved Payment Processor and its service satisfies the applicable Credit Card Network Rules; and o Franchisee must collect all of its proceeds through the Approved Payment Processor; Roller accepts no obligation or liability with respect to such collection or the performance or non-performance of that third party.
4.9 Terms of Service. Franchisee warrants that the Roller Services, as made available to any Attendee, are and will be governed by an enforceable and valid agreement between Franchisee and Attendee pursuant to which Franchisee, on behalf of Roller: (a) prohibits reverse engineering, disassembly, decompilation, or other attempt to derive source code of the Platform or any portion of the Platform; (b) prevents title of the Platform or any portion of the Platform from passing to Attendee; (c) disclaims all express and implied warranties regarding the Platform and Roller Services; (d) disclaims Roller’s liability for damages, whether direct, indirect, incidental, or consequential; and (e) with respect to (a) through (d), makes Roller an intended third party beneficiary of such agreement.
5.1 General. Each party represents and warrants that: (a) it has full power and authority, and has obtained all approvals, permissions and consents necessary to enter into this Agreement and to perform its obligations hereunder; (b) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (c) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
5.2 Processional and Workmanlike Manner. Roller warrants to customers that all Services provided under this Agreement will be performed in a professional and workmanlike manner.
5.3 Third Party Integrations. Franchisee acknowledges and agrees that in the performance of Services, Roller may integrate the Services, including the Roller Services, with third party products made available by Franchisee (e.g., Approved Payment Processors). Franchisee represents and warrants that it has the authority, and hereby grants Roller the authority, to integrate with such third party products as contemplated by this Agreement.
5.4 Notification of Disqualifying Event. Franchisee represents and warrants that it will promptly notify Roller in the event that Franchisee has suffered, is suffering or suffers a Disqualifying Event. A “Disqualifying Event” means that the Franchisee has breached an applicable law, Franchisee becomes insolvent or otherwise triggers a bankruptcy threshold set forth in Section 3 or that allows Roller to terminate a Franchisee Order Form or the Franchisee Terms.
5.5 Franchisee. Franchisee represents and warrants that it is a party to an agreement with CircusTrix pursuant to which it is authorized to operate the Franchisee Trampoline Parks under the trademarks owned by CircusTrix, and that it is not breach of any such agreement.
5.6 Privacy and Data Protection. Each party represents and warrants that it will comply with all privacy and data protection laws in the jurisdictions in the Territory in which the Services are live and available for use by any Attendee within a Franchisee Trampoline Park.
6.1 EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, INCLUDING ANY ORDER FORM, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, QUIET ENJOYMENT OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. ROLLER DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE SERVICES WILL BE ACCURATE, SECURE, WITHOUT INTERRUPTION, OR ERROR-FREE.
6.2 ROLLER IS NOT RESPONSIBLE FOR ERROR BY THE PAYMENT PROCESSOR.
7.1 Roller Indemnity. Roller will indemnify, defend and hold Franchisee harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs, (collectively “Losses”) arising out of any third party claim alleging that the Services infringe any U.S. copyright, trademark or trade secret or a breach of its obligations pursuant to Section 10 (Attendee Data).
7.2 Exclusions. Section 1 will not apply if the alleged claim arises, in whole or in part, from (a) a use or modification of the Services by Franchisee in a manner outside the scope of any right granted or in breach of this Agreement, (b) a combination, operation or use of the Services with other software, hardware or technology not provided or authorized by Roller if the claim would not have arisen but for the combination, operation or use, or (c) the Franchisee Content (any of the foregoing circumstances under clauses (a), (b) or (c) will be collectively referred to as a “Franchisee Indemnity Responsibility”).
7.3 Franchisee Indemnity. Franchisee will indemnify, defend and hold harmless Roller, its directors, officers, employees and representatives, from and against any and all Losses arising out of or related to any third party claim: (a) alleging a Franchisee breach of any Franchisee’s representations or warranties, or obligations, (b) arising out of or related to any Franchisee Indemnity Responsibility or (c) otherwise arising out of, related to or in connection with any Franchisee Trampoline
7.4 Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, (b) reasonably cooperating and assisting in such defense, and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent.
7.5 Infringement Remedy. If any Service is, or in Roller’s opinion, is likely to become the subject of any infringement related claim, then Roller will, at its expense and in its discretion: (a) procure for Franchisee the right to continue using the Service; (b) replace or modify the infringing technology or material so that the Service becomes non- infringing and remains materially functionally equivalent; or (c) terminate the Schedule(s) pursuant to which the Service is provided and give Franchisee a refund for any pre-paid but unused fees. THE PROVISIONS OF THIS SECTION 5 STATE ROLLER’S ENTIRE LIABILITY AND FRANCHISEE’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SERVICES INFRINGE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT.
8. LIMITATION AND EXCLUSION OF LIABILITY
8.1 Disclaimer of Indirect Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF VALUATION, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. ROLLER WILL NOT BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES.
8.2 EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY ROLLER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST DATE ON WHICH THE APPLICABLE LIABILITY AROSE OR SEVEN THOUSAND, FIVE HUNDRED DOLLARS ($7,500), WHICHEVER IS GREATER.
8.3 NOTWITHSTANDING THE FOREGOING, (A) SECTIONS 1 AND 8.2 WILL NOT APPLY TO ANY INDEMNIFICATION OBLIGATION RELATED TO NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY AND THE SECTION ENTITLED CONFIDENTIALITY, (B) WITH RESPECT TO A BREACH OF THE SECTION ENTITLED ATTENDEE DATA, THE EU DATA PROTECTION ADDENDUM INCORPORATED THEREIN, AND THE CORRESPONDING INDEMNIFICATION OBLIGATION, THE MAXIMUM AGGREGATE LIABILITY FOR EITHER PARTY WILL NOT EXCEED THREE (3) TIMES THE TOTAL AMOUNT OF FEES RECEIVED BY ROLLER UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST DATE THAT THE LIABILITY WAS DISCOVERED AND (C) IN THE EVENT THAT ANY FINE, PENALTY OR CHARGE (COLLECTIVELY, “FINE”) IS SET BY A REGULATORY AUTHORITY AS A RESULT OF, OR DUE TO, A BREACH BY ROLLER OF ITS OBLIGATIONS IN SECTION 10, SUCH FINE SHALL BE BORNE BY ROLLER, IN FULL, REGARDLESS OF THE CAP ON LIABILITY, PROVIDED, HOWEVER, THAT IN THE EVENT THAT THE FINE IS THE RESULT OF, OR DUE TO, SHARED FAULT OR CULPABILITY, ROLLER’S LIABILITY FOR SUCH FINE WILL BE LIMITED TO ITS COMPARATIVE SHARE OF THE FAULT OR CULPABILITY.
8.4 NOTHING IN THIS SECTION 8 IS INTENDED TO LIMIT EITHER PARTY’S LIABILITY TO THIRD PARTY BENEFICIARIES OF THE MODEL CONTRACTUAL CLAUSES, IF APPLICABLE. (See Section 10.8 of the Franchisee Terms – EU Data Protection Addendum).
9.1 Franchisee and Roller acknowledge that they may each obtain Confidential Information in connection with this Agreement and their relationship. The receiving party will at all times keep in trust and confidence all such Confidential Information and may use such Confidential Information solely for the purpose of furtherance of the business relationship between the parties as provided in this Agreement.
9.2 Notwithstanding the above, Roller will be authorized to disclose Franchisee’s Confidential Information to contractors or employees of a Roller entity who have a legitimate business need to have access to such information for the purposes of performing the Services.
9.3 Upon termination or expiration of this Agreement (for any reason and at any time), the receiving party will, if so requested, immediately cease use of and return to the disclosing party or destroy all Confidential Information (including all copies thereof) in the receiving party’s possession, custody, or control, provided that the receiving party may keep archival copies for regulatory purposes and to enforce its rights subject to the obligations of confidentiality herein.
9.4 This Section 9 will not apply to information which: (a) has entered the public domain except where such entry is the result of the receiving party’s breach of this Agreement; (b) was rightfully in the receiving party’s possession prior to disclosure under this Agreement; or (c) is obtained by the receiving party on a non-confidential basis from a third party who has the right to disclose such information to the receiving party.
9.5 The receiving party will be authorized to disclose Confidential Information, as may be required by applicable law, pursuant to a valid order issued by a court or government agency or relevant regulatory authority (including a stock exchange), provided that the receiving party provides: (a) prior written notice to the disclosing party of such obligation; and (b) the opportunity to oppose such disclosure.
9.6 Nothing in this Agreement will prohibit either party from developing or having developed for it, products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that such party does not violate any of its obligations under this Agreement in connection with such development. In addition, either party will be free to use, for any purpose, the residuals resulting from access to or work with such Confidential Information, provided that such party will maintain the confidentiality of the Confidential Information as provided herein. The term “residuals” means information in nontangible form which may be retained by persons who have had access to the Confidential Information, including ideas, concepts, know-how or techniques contained therein, provided such Confidential Information is not expressly incorporated in a tangible form provided by the disclosing party.
9.7 Neither party will disclose the terms and conditions of this Agreement without the prior written consent of the other party. Any press release or publication regarding this Agreement is subject to both the prior review and the written approval of both parties.
10. ATTENDEE DATA
10.1 Definitions. Capitalized terms used herein shall have the meanings set forth in this Section 10. "Authorized Employees" means Roller's employees who have a need to know or otherwise access Personal Information to enable Roller to perform its obligations under this Agreement. "Authorized Persons" means (i) Authorized Employees and (ii) Roller's contractors, agents, and auditors who have a need to know or otherwise access Personal Information to enable Roller to perform its obligations under this Agreement. "Highly Sensitive Personal Information" means an (i) individual's government-issued identification number (including Social Security number, driver's license number, or state-issued identification number); (ii) financial account number, credit card number, debit card number, when combined with an individual’s name or any required security code, access code, personal identification number, or password that would permit access to an individual’s financial account; or (iii) biometric, genetic, health, medical, or medical insurance data. Highly Sensitive Personal Information does not include an individual’s photograph or information about allergies, food sensitivities, dietary restrictions, physical or mental disabilities, or needs for accommodations. “Information Security Program” means technological, physical, administrative and procedural safeguards reasonably designed to protect (i) the confidentiality, security and integrity of Personal Data; (ii) protect against any anticipated threats or hazards to the security and integrity of Personal Data; and (iii) protect against Security Breaches. “Process” or “Processing” means any operation or set of operations performed upon Personal Data, such as accessing, obtaining, storing, transmitting, using, maintaining, disclosing or disposing of information. "Security Breach" means any (i) loss or theft of Personal Data; or (ii) any unauthorized use, disclosure, acquisition of, access to or other unauthorized Processing of Personal Data that materially compromises either the security or confidentiality of Personal Information.
10.2 Standard of Care. Roller acknowledges and agrees that, during its engagement by Franchisee, Roller may create, receive, or have access to Personal Information. Roller shall comply with the terms and conditions set forth in this Agreement in its creation, collection, receipt, transmission, storage, disposal, use, and disclosure of such Personal Information. Roller shall be responsible for, and remain liable to, Franchisee for the actions and omissions of all Authorized Persons that are not Authorized Employees concerning the treatment of Personal Information as if they were Roller’s own actions and omissions.
10.3 In recognition of the foregoing, Roller agrees and covenants that it shall:
- keep and maintain all Personal Information in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use, or disclosure;
- comply with applicable law in its creation, collection, receipt, access to, or use of Personal Information;
- use and disclose Personal Information solely and exclusively for the purposes for which the Personal Information, or access to it, is provided pursuant to the terms and conditions of this Agreement or otherwise as authorized or directed by Franchisee, and not use, sell, rent, transfer, distribute, or otherwise disclose or make available Personal Information for Roller's own purposes or for the benefit of anyone other than Franchisee, in each case, without Franchisee's prior written consent; and
- prior to providing access to Personal Data to any third party contractors or agents, take reasonable steps to verify that such third party is capable of maintaining the privacy, confidentiality and security of Personal Data; and
- contractually require the third party to maintain adequate safeguards for Personal Data
10.4 Aggregation of Data. Franchisee acknowledges and agrees that Roller may create and derive from Processing related to the Services anonymized and/or aggregated data that does not identify Franchisee or any natural person, and use, publicize or share with third parties such data to improve Roller’s products and services and for its other legitimate business purposes.
10.5 Information Security. Roller represents and warrants that its creation, collection, receipt, access, use, storage, disposal, and disclosure of Personal Information does and will comply with all applicable federal, state, and foreign privacy and data protection laws, as well as all other applicable regulations and directives that are legally binding on Roller or Franchisee with respect to the Services performed by Roller.
- Roller is responsible for the security of Personal Information in Roller’s possession or custody. Beginning on the date that Services commence under this Agreement, Roller shall implement and maintain a commercially reasonable Information Security Program. Roller shall review the Information Security Program at least annually.
- Beginning on the date that Services commence under this Agreement, Roller shall at all times remain in compliance with applicable requirements of the Payment Card Industry Data Security Standard ("PCI DSS") as may be amended from time to time, at Roller's sole cost and expense.
- At a minimum, Roller's safeguards for the protection of Personal Information shall include: (i) limiting access of Personal Information to Authorized Persons; (ii) maintaining reasonable access controls for Roller’s business facilities, data centers, paper files, servers, backup systems, and computing equipment, including, but not limited to, all mobile devices and other equipment with information storage capability that are used in connection with the provision of the Services; (iii) implementing reasonable security controls for Roller’s network, applications, databases, and platforms used in connection with the provision of the Services; (iv) providing reasonable security controls for information transmission, storage, and disposal; (v) implementing reasonable authentication and access controls for external storage media, applications, operating systems, and computing equipment used in connection with the provision of the Services; (vi) encrypting Highly Sensitive Personal Information stored on any mobile media used in connection with the provision of the Services; (vii) encrypting Highly Sensitive Personal Information transmitted over public or wireless networks in connection with the provision of the Services; (viii) segregating through logical or physical controls Personal Information from information of Roller or its other customers; (ix) conducting periodic risk assessments, penetration testing, and vulnerability scans and, at Roller’s sole cost and expense, responding in a commercially reasonable manner designed to correct or remediate any undisputed material vulnerabilities issues that are reported as a result of the testing; (x) implementing appropriate personnel security and integrity procedures and practices, including, but not limited to, conducting background checks of individuals with access to Highly Sensitive Personal Information consistent with applicable law; and (xi) providing appropriate privacy and information security training to Roller's employees, consistent with the extent and nature of access to Personal Information.
- Security Breach Procedures. Roller will notify Franchisee without unreasonable delay (but in no event more than 48 hours after becoming aware of any Information Security Incident) about any Information Security Incident affecting Personal Data in Roller’s possession or custody. Roller will conduct a reasonable investigation of the reasons for and circumstances of the Information Security Incident, and take all necessary and advisable actions to rectify, prevent, contain and mitigate the impact of the Information Security Incident, and remediate the Information Security Incident. Roller will consult with Franchisee regarding the content of any filings, communications, notices, press releases or reports related to any Information Security Incident, to the extent such documents or statements identify Franchisee or Franchisee’s consumers. Franchisee will be responsible for providing notice to affected individuals. Roller agrees to reasonably cooperate with Franchisee concerning: (i) Franchisee’s investigation, enforcement, monitoring, document preparation, notification requirements, efforts to prevent and mitigate, and reporting concerning Information Security Incidents; and (ii) any other activities or duties set forth in this Section 10 for which cooperation between Roller and Franchisee may be reasonably necessary. Roller will reimburse Franchisee for the following direct costs and expenses related to an Information Security Incident: (i) preparing and providing notification and (ii) remediating the Information Security Incident. In the event that the Information Security Incident was caused by, or a result of, Roller’s violation of its obligations under this Agreement, Roller will reimburse Franchisee for its direct costs and expenses relating to the Information Security Incident, including: (A) investigating the Information Security Incident and (B) providing credit monitoring required by law (if any).
10.6 Third Party Audits. Upon Franchisee’s written request at reasonable intervals, Roller shall provide a copy of Roller’s then most recent summaries of third-party audits or certifications, as applicable, that Roller generally makes available to its customers at the time of such request, and make appropriate Roller personnel reasonably available to Franchisee to discuss Roller’s manner of compliance with applicable security obligations under this Agreement. Franchisee acknowledges and agrees that such summaries constitute Roller’s Confidential Information.
10.7 Destruction of Personal Data. When Personal Data is no longer necessary for the performance of Services for or on behalf of Franchisee, or upon the expiration or earlier termination of the Agreement, Roller shall securely destroy or, at Franchisee’s written request, return to Franchisee or its designee, the Personal Data in Roller’s possession or custody, in the format in which Roller maintains the data in the ordinary course of business. In the event applicable law does not permit Roller to comply with the delivery or destruction of the Personal Data, and with respect to backup copies of the data that Roller maintains until such backups are erased in the ordinary course of business Roller shall continue to protect the confidentiality and security of Personal Data as set out in this Section 10.
10.8 EU Data Protection Addendum.
Franchisee acknowledges and agrees that if Franchisee uses (or instructs, permits, or enables any of Franchisee’s employees, contractors, partners, or customers to use) any of the Services to collect, retrieve, send, store, host, transfer, or otherwise process or use any Personal Data relating to any natural persons located in the European Union and which is subject to the European General Data Protection Regulation, then such activities shall be subject to the EU Data Protection Addendum set forth at https://www.roller.software/dataprocessing-agreement.
11. INVOICING AND PAYMENT
11.1 Invoicing. Unless otherwise set forth in any Order Form, all fees are to be invoiced by Roller, in advance, on an monthly basis.
11.2 Fees. Franchisee will pay the Fees to Roller in accordance with the payment schedule set forth in the applicable Order Form(s). All Fees are non-refundable, including, if any Franchisee Trampoline Park ceases operations during any Contract Year. Unless otherwise specified in any Order Form, all invoices issued by Roller will be due and payable thirty (30) days after receipt by Franchisee. All Fees will be paid in U.S. dollars. Any portion of the Fees that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. The Fees exclude, and Franchisee will be responsible for, all sales, use, excise, withholding and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity in connection with the Services (excluding taxes based solely on Roller’s income). Alternatively, Franchisee may furnish to Roller an exemption certificate, provided however that if such exemption certificate is challenged or held invalid by a taxing authority, then Franchisee agrees to pay for all resulting fines, penalties and expenses (including without limitation reasonable attorneys’ fees and costs).
11.3 Valid Payment Method: Franchisee will be required to maintain a Valid Payment Method within their Roller Platform at all times.
11.4 Payment by Credit Card. If Franchisee is paying by credit card, Franchisee authorizes Roller to charge Franchisee’s credit card or bank account for all fees payable. Franchisee further authorizes Roller to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
11.5 Expenses. Franchisee will reimburse Roller for any preapproved travel and out-of-pocket expenses incurred by Roller in connection with the provision of Services, if Franchisee has approved such expenses in writing or via email.
12. TERM AND TERMINATION
12.1 Term. The term of this Agreement will commence on the Master Effective Date and will continue for as long as any Order Form is in effect, unless terminated in accordance with this Section 12 or as otherwise expressly provided in this Agreement (the “Term”).
12.2 Termination for Material Breach. Either party may terminate this Agreement or any Order Form, at its discretion, effective immediately upon written notice to the other, if the other party materially breaches any provision of this Agreement and does not substantially cure the breach within thirty (30) days after receiving written notice.
12.3 Termination Upon Bankruptcy or Insolvency. Roller may, at its option, terminate this Agreement or any Order Form immediately upon written notice to Franchisee, in the event (a) that Franchisee becomes insolvent or unable to pay its debts when due; (b) Franchisee files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (c) Franchisee discontinues its business; or (d) a receiver is appointed or there is an assignment for the benefit of Franchisee’s creditors.
12.4 Suspension of Service(s). At any time during the Term, Roller may, immediately upon notice to Franchisee, suspend access to any Service for the following reasons: (a) if a threat to the technical security or technical integrity of the Service, including the Roller Services; (b) any amount due under this Agreement (or as applicable, under any agreement between Roller and any Franchisee) is not received by Roller within thirty (30) days after it was due, or (c) a breach or violation by Franchisee of any statutes, laws, or regulations.
12.5 Transition Assistance. Following any notice of termination or expiration for any reason other than Franchisee’s material breach, Roller will provide Franchisee all reasonably requested assistance to enable a smooth transition from the Services to an alternative provider. All transition assistance will be pursuant to a SOW that must be agreed upon by the parties and sets forth the transition assistance to be performed (the “Transition Assistance”), the schedule for such performance and the Fees to be paid. All Fees will be in accordance with Roller’s then current price list for such Transition Assistance.
12.6 Effects of Termination. Upon termination or expiration of this Agreement for any reason: (a) any amounts owed to Roller before such termination or expiration will be immediately due and payable; and (b) all licenses and access rights granted will immediately cease to exist. All provisions that by their nature should survive termination will survive termination, including Sections 1 (Definitions), 6 (Feedback), 5 (Warranties), 6 (Disclaimers), 7 (Indemnification), 8 (Limitation and Exclusion of Liability), 9 (Confidentiality), Section 10.7 (Destruction of Personal Data), 11 (Invoicing and Payment), 12.6 (this survival section), and 13 (Miscellaneous). Termination of this Agreement does not affect any accrued rights or remedies of the terminating party with respect to breach of this Agreement, and the parties agree that such rights and remedies will survive termination of this Agreement.
13.1 No Assignment. This Agreement cannot be assigned by either Franchisee or Roller without the prior written consent of the other; provided, however, that either party may assign this Agreement to any person or entity that (i) is an Affiliate, (ii) Franchisee or Roller acquires as part of a merger or acquisition (whether by a sale of substantially all of such person’s or entity’s assets or stock), or (iii) acquires Franchisee or Roller as part of a merger or acquisition (whether by a sale of substantially all of Franchisee’s or Roller’s (as applicable) assets or stock), provided, however, that in connection with any such assignment, the assignee must have sufficient assets, resources and talent to perform all of its obligations under the Agreement
13.2 Order of Precedence. To the extent there is a conflict between the terms of an appendix/schedule, these terms and conditions and/or an Order Form, the order of precedence will be the Order Form, these terms and conditions, and the appendix/schedule.
13.3 Choice of Law. This Agreement will be governed by the laws of the State of California, without reference to its conflicts of law principles. The United Nations Convention for the International Sale of Goods will not apply to this Agreement. Except as provided in Section 13.4(f), any dispute, controversy or claim arising out of or relating to this Agreement, will be made exclusively in federal courts located in Los Angeles, California and both parties submit to the jurisdiction and venue of such courts.
13.4 Dispute Resolution. Roller and Franchisee agree that any conflict, dispute, controversy, or claim arising out of or relating to this Agreement or the relationship created by this Agreement, including questions of arbitrability, whether sounding in tort or contract (together or individually a “Dispute”), will be finally resolved in accordance with the following process:
- Escalation of Disputes. Subject to Section (f) below, the parties agree to attempt to resolve each Dispute by first escalating the Dispute to their respective business managers. Within fourteen (14) calendar days of written notice of a Dispute, the business managers will meet in person or by phone and work in good faith to resolve the Dispute.
- Mandatory, Non-Binding Mediation. Subject to Section (f) below, if the parties are unable to resolve the Dispute in accordance with Section (a) above, either party may initiate a mandatory, non-binding mediation. The mediation will be in accordance with the mediation procedures of the American Arbitration Association (“AAA”) then in effect and, unless otherwise agreed upon by the parties, will take place in the city identified in Section 14.3.. The AAA mediation procedures are hereby incorporated by reference into this Section.
- The parties will share all fees and costs of the mediation proceedings.
- All communications made during the mediation by either of the parties or the mediator are intended to be confidential and privileged to the extent permitted by law.
- Litigation. If the parties are unable to resolve the dispute through the mediation process within sixty (60) days of the appointment of the mediator, or such further period as the parties will agree to in writing, either party may sue in the appropriate court as referenced in Section 3 above.
- Preliminary Relief. At any point after a Dispute has arisen, in the event interim or provisional relief is necessary to protect the rights or property of a party under Section 9 (Confidentiality) of this Agreement or otherwise prior to the resolution of the Dispute, either party may, without waiving any process or remedy under this Agreement, seek such relief from any court of competent jurisdiction.
13.5 Force Majeure. Neither party will be liable for any delay or failure in non-monetary performance obligations due to a Force Majeure Event. The time for performance of the obligations and rights of the defaulting party will be extended for a period equal to the duration of the Force Majeure Event.
13.6 No Waiver. The waiver by either party of any right provided under this Agreement will not constitute a subsequent or continuing waiver of such right or of any other right under this Agreement.
13.7 Severability. If one or more terms of this Agreement become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, each such part or term will be null and void and will be deemed deleted from this Agreement. All remaining terms of this Agreement will remain in full force and effect. However, if this paragraph is invoked and, as a result, the value of this Agreement is materially impaired for either party, then the affected party may terminate this Agreement by written notice with immediate effect.
13.8 Attorneys’ Fees. In any suit or proceeding relating to this Agreement, the prevailing party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of this Agreement and will survive expiration or termination and will not be merged into any such judgment.
13.9 No Agency. This Agreement does not create any agency, partnership, joint venture, or franchise relationship. No employee of either party will be or become, or will be deemed to be or become, an employee of the other party by virtue of the existence or implementation of this Agreement. Each party hereto is an independent contractor. Neither party will assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
13.10 Entire Agreement. This Agreement is the complete agreement between the parties concerning the subject matter of this Agreement and replaces any prior oral or written communications between the parties except as agreed in writing between the parties. There are no conditions, understandings, agreements, representations or warranties, expressed or implied. This Agreement may only be modified by a written document executed by both parties.
13.11 Notices. All notices required or permitted under this Agreement will be in writing. Notices will be deemed to have been given: (a) one (1) day after deposit with a commercial express courier specifying next day delivery; or (b) two (2) days for international courier packages specifying two-day delivery, with written verification of receipt. All communications will be sent to the parties’ addresses shown in the applicable Order Form of this Agreement or to such other address as may be designated from time to time by a party by giving at least fourteen (14) days’ written notice to the other party. Notwithstanding the above, notices from Roller regarding general changes in pricing, Services, policies or programs may also be by posting on Roller.com (or any other website used by Roller) or by e-mail or fax.
13.12 Counterparts. This Agreement may be executed in two counterparts, each of which will be deemed an original and together which will constitute one and the same instrument. A validly executed counterpart that is delivered by one party to the other via electronic transmission (a “Counterpart Image”) will be valid and binding to the same extent as one delivered physically, provided that the valid signature is clearly visible in the Counterpart Image. If a party delivers a Counterpart Image in place of an originallyexecuted counterpart, such party will retain the originallyexecuted counterpart in its files for at least the duration of this Agreement.
Availability. Roller will use best efforts to ensure that the Roller Services are Available during “Critical Hours”, meaning 7 am to 12 am ET, seven (7) days a week, 365 days a year, at least 99.5% of the time (the “Target Availability Requirement”), calculated on a calendar monthly basis and at least 95% of the time during non-Critical Hours, it being understood that “downtime” will exclude time: (a) required for routine system maintenance not to exceed five (5) hours in any calendar month that is performed by Roller so long as such maintenance is performed during low volume periods; (b) any other circumstances beyond Roller’s reasonable control (including Internet delays, network congestion, ISP malfunctions delays caused by Franchisee’s systems); and (c) for pre-cleared scheduled outages in which Franchisee receives notifications no less than seventy-two (72)-hours prior and Roller makes best efforts to perform the work during low volume hours (e.g., Sunday between 11 pm and 6 am ET). “Available” means that the Roller Services are available through the internet.
Remedy for Missing Target Availability Requirement. In the event that the Services Availability with respect to any Park is less than 98% in any calendar month, Roller will provide a $100 credit to Franchisee or Franchisee, as applicable.