ROLLER Master Terms of Service
Last Revised: 27 February 2023
Welcome to ROLLER, the all-in-one cloud-based platform that helps leisure and entertainment businesses to operate more effectively and deliver better guest experiences. These ROLLER terms and conditions (“Master Terms”) together with any Order Form and any Supplemental Terms (as defined below) form an agreement between the entity identified as Customer in the applicable Order Form and the operating subsidiary of Roller Network Pty identified in Section 11.3 of these Master Terms (each such entity, “ROLLER”). The Master Terms, all applicable Order Forms and Supplemental Terms (collectively, the “Agreement”) govern Customer’s use and any Services purchased by Customer in any Order Form, including, as applicable, ROLLER’s proprietary, venue management, software-as-a-service offering that provides Customers with online ticketing, in-venue point of sale capabilities, Self-Serve Kiosks, waiver management, CRM functionality, ROLLER payments and reporting.
Customer’s use of certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Master Terms or will be presented to Customer for Customer’s acceptance when Customer signs up to use the supplemental Services. For the avoidance of doubt, the Roller Payment Processing Terms of Service, available at https://www.roller.software/rpp-terms, are Supplemental Terms.
PLEASE NOTE THAT THE AGREEMENT AND THE FEES ARE SUBJECT TO CHANGE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 11.10.
Terms not defined herein have the meaning given to them in the applicable Order Form.
- DEFINITIONS. In this Agreement, the following definitions apply:
- 1.1. “Access Credentials” means login information, passwords, security protocols, and policies through which Authorized Users access the ROLLER Services.
- 1.2. “Applicable Law” means, any international, foreign or domestic, federal, provincial, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a governmental authority, the Scheme Rules, or self-regulatory organization that is binding upon or applicable to Customer’s use of the Services or operation of the Customer.
- 1.3. “Authorized Users” mean each of Customer’s employees, agents, consultants and independent contractors who are provided Access Credentials by Customer or at the request of Customer.
- 1.4. “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: 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 Venue Guest Data, the use and protection of which is governed by Section 4.4.
- 1.5. “Customer” means the person or entity identified as the Customer in the applicable Order Form. A Customer may operate one or more Venues.
- 1.6. “Customer Content” means the data or content, including logos, designs, copy, images and related materials of Customer or any of its Venues in any format, uploaded through the ROLLER Services by Authorized Users on behalf of Customer or any of its Venues, or otherwise identified as Customer Content in an Order Form.
- 1.7. “Customer Personnel” means employees, independent contractors and agents of Venue.
- 1.8. “Data Processing Agreement” means the Data Processing Agreement made available at https://www.roller.software/dpa.
- 1.9. “Device” means any device (most commonly a tablet) owned or controlled by Customer and located within a Venue that enables: (a) Authorized Users to use the Services, including the point of sale functionality and / or (b) Venue Guests to interact with the ROLLER Services, including the Self-Serve Kiosk.
- 1.10. Distributable Software” means any downloadable application or other software made available to Customer by ROLLER that is intended to be used in connection with the Services, including the mobile check-in app.
- 1.11. “Documentation” means the user guides and other reasonable instructions provided by ROLLER that are designed to provide Authorized Users information about how to properly operate the ROLLER Services.
- 1.12. “Fees” mean all fees due to ROLLER pursuant to any Order Form or otherwise in accordance with this Agreement, including subscription fees for Roller Services and Add-On Services, fixed fees for onboarding services or professional services and all variable fees, including fees related to the use of payment processors.
- 1.13. “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.
- “1.14. 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, which Order Form references these Master Terms or the Agreement.
- 1.15. “Order Term” means the term of any Order Form, as set forth in the Order Form.
- 1.16. “Personal Information” has the meaning provided in the Data Processing Agreement.
- 1.17. “Platform” means software, hardware, intellectual property rights and other technology underlying the ROLLER Services, including any ROLLER API and the Distributable Software.
- 1.18. “ROLLER Policies” mean the Acceptable Use Policy set forth in Section 3.8 and such other policies and procedures made available by ROLLER to Customer that set forth policies, procedures and protocols that must be followed by Customer to have continued access to the ROLLER Services.
- 1.19. “ROLLER Services” means the venue management, software-as-a-services offering that is made available to Customer pursuant to any Order Form.
- 1.20. “Scheme Owners” mean the card-based payment networks including (but not limited to) Visa, MasterCard and American Express.
- 1.21. “Scheme Rules” means the collective set of bylaws, rules, regulations, operating regulations, procedures and/or waivers issued by the Scheme Owners as may be amended or supplemented over time and with which merchants and payment service providers must comply with when using the relevant payment method.
- 1.22. “Self-Serve Kiosks” means ROLLER’s software-as-a-service feature made available via Devices that allow Venue Guests to check-in, execute waivers, purchase tickets, purchase add-ons and otherwise interact with the ROLLER Services.
- 1.23. “Services” mean any services made available by ROLLER to Customer pursuant to any Order Form, including the ROLLER Services, Add-On Services, Payment Processing Services, Onboarding Services, and Support Services.
- 1.24. “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.
- 1.25. “Term” has the meaning given to it in Section 10.1.
- 1.26. “Trademark” means any trademark, trade name, service mark, service name, brand, business name, trade dress, logo, other indicia of origin of a good or service, and the goodwill and activities associated therewith.
- 1.27. “Venue” means the physical location of the museum, amusement park or other location based entertainment venue for which the ROLLER Services are provided and that are identified in the applicable Order Form.
- 1.28. “Venue Guest” means an individual (parent and / or child) who attends a Venue, is registered as a venue Guest of a venue through the ROLLER Services or who interacts with the ROLLER Services remotely, for example through a Customer or Venue website, provided, however, that Venue Guest will not include Customer Personnel acting in their capacity as an employee.
- 1.29. “Venue Guest Data” means Personal Information of a Venue Guest uploaded into the ROLLER Services by a Venue Guest or by Venue.
- 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. Provision of Services. Subject to the terms and conditions of this Agreement, ROLLER will provide the Services to Venue in a workmanlike and professional manner in accordance with industry standards. Venue’s sole and exclusive remedy for a breach of the foregoing is that ROLLER will reperform the Services in a manner that conforms with the requirement.
- 2.3. Customer Responsibility for Physical Venue Acts and Omissions. Any act or omission by Customer, any Venue or any Customer Personnel that is a breach of this Agreement is deemed a breach of this Agreement by Customer. Customer represents and warrants that it is the beneficial owner of Venue or controls Venue and that it has the legal authority to enter into this Agreement for the benefit of each Venue.
- 2.4. Reasonable Assistance. Customer 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 Customer or Customer Personnel will promptly update ROLLER where there has been a material change to those instructions and information which affects the delivery of the Services.
- 2.5. Continuous Development. ROLLER may continually develop, deliver and provide to Customer ongoing innovation to the Services, including the ROLLER Services, in the form of new functionality, including new features and efficiencies. ROLLER reserves the right to modify the Services, or any ROLLER Service, from time to time. Some modifications will be provided to Customer at no additional charge. In the event ROLLER adds functionality, ROLLER may condition the implementation of such functionality on Customer’s payment of additional fees provided Customer generally charges other customers additional fees in connection with such new functionality.
- 3. ACCESS, PROPRIETARY RIGHTS, AND RESTRICTIONS
- 3.1. Access Grant to ROLLER Services. Subject to Customer’s compliance with the terms and conditions contained in this Agreement and ROLLER Policies, ROLLER hereby grants to Customer a non-exclusive, non-transferable, non-sublicenseable, revocable right to permit Authorized Users to access and use the ROLLER Services for the Order Term. Customer’s access and use of the ROLLER Services is limited to Customer’s internal use only and to enable Venue Guests to use the ROLLER Services, in each case, solely in accordance with the Documentation and this Agreement. Customer will be responsible for all acts and omissions of Authorized Users.
- 3.2. Access Credentials. Customer will safeguard, and ensure that all Authorized Users safeguard, their applicable Access Credentials. Customer will notify ROLLER immediately if it learns of any unauthorized use of any Access Credentials or any other known or suspected breach of security.
- 3.3. Branding. The ROLLER Services are intended to be a white-labelled service and provided under Customer’s or any Venue’s brand. Customer must use its own company name, Trademarks and logos in branding the ROLLER Services, especially those portions of the ROLLER Services that are Venue Guest facing. Notwithstanding the foregoing, ROLLER reserves the right to identify ROLLER as the provider of the ROLLER Service using ingredient or powered by branding, and Customer agrees that it will not remove, alter or otherwise obscure any such ROLLER branding. Each party hereby grants to the other a non-exclusive right and license during the Term to use the Trademarks of the other party as contemplated in this Section.
- 3.4. ROLLER API License. If Customer has a right to access one or more ROLLER APIs pursuant to an Order Form (the “Licensed ROLLER API”), Customer is hereby granted a non-exclusive, non-transferable, right and license to use the applicable Licensed ROLLER API(s) solely: (a) for its internal use and in connection with the ROLLER Services; (b) in accordance with the Documentation and the terms of this Agreement; and (c) during the Order Form Term.
- 3.5. Distributable Software License. If Customer is provided access by ROLLER to any Distributable Software, Customer is granted a non-exclusive, non-transferable, right and license to install, operate and use the Distributable Software solely: (a) for its internal use and in connection with the ROLLER Services; (b) in accordance with the Documentation and the terms of the Agreement; and (c) during the Order Form Term.
- 3.6. Customer Content
- (a) Customer Content. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Venue will obtain all third party licenses, consents and permissions needed for ROLLER to use the Customer Content to provide the Services.
- (b) License in Customer Content. Customer grants to ROLLER a non-exclusive license during the Term to use the Customer Content as necessary for purposes of providing the Services and, on a perpetual basis, to create and compile aggregated data and/or statistics that it may use internally or provide to others for their own use provided that such aggregated data and statistics will not reasonably enable the identification or reidentification of Customer or any living individual. Except for the limited licenses granted to ROLLER in any Customer Content, as between Customer and ROLLER, Customer reserves all right, title and interest in the Customer Content.
- (c) Removal of Customer Content. ROLLER reserves the right to remove any Customer Content for any reason at its discretion, including because the applicable Customer Content violates the ROLLER Policies.
- 3.7. Feedback. ROLLER, in its sole discretion, may utilize all comments, suggestions and feedback (collectively “Feedback), whether written or oral, furnished by Customer or Venue including Feedback of Customer Personnel, Authorized Users and Venue Guests, in connection with its access to and use of the Services. Customer hereby grants ROLLER, on behalf of itself, and its Customer Personnel, Authorized Users and Venue Guests, a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into ROLLER products and services.
- 3.8. Acceptable Use Policy. Customer will not (and will not permit any third party, including any Venue Guest, Authorized Users or Customer Personnel 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 Customer Content); (b) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain the source code, software, algorithms to all or any portion of the ROLLER Services; (c) except for Venue Guests, Authorized Users and Customer Personnel, 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; (d) scrape, store, publish, transmit, transfer, communicate, distribute or disseminate, any materials contained within the ROLLER Services (other than the Customer Content); (e) access all or any part of the Platform or ROLLER Services in order to build a product that competes with ROLLER’s business; (f) use the Platform or ROLLER Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, store or transmit material in violation of third-party privacy rights or otherwise in violation of ROLLER Policies; (g) use the Platform to store or transmit Malicious Code; (h) interfere with or disrupt the integrity or performance of the Platform or the ROLLER Services; and / or (i) use the ROLLER Services to process any transactions in a manner that violates Applicable Law, including any privacy or data security law or the Scheme Rules or is fraudulent or criminal in nature; (j) use the ROLLER Services in a manner that puts excessive strain on the Platform; (k) forge headers, otherwise manipulate identifiers or otherwise send altered, deceptive or false source-identifying information; and (l) send any email or communications in violation of Applicable Laws including, in the United States, in violation of the Controlling the Assault of Non-Solicited Pornography and Marketing Act (aka CAN-SPAM Act).
- 3.9. Reservation of Rights. Except for the limited licenses and access grants provided hereunder, each party reserves all right, title and interest in its intellectual property and business including, in the case of ROLLER, the Platform, ROLLER Services and any ROLLER Trademarks and in the case of Customer, the Customer Content and Customer Trademarks. Each party agrees that all use of any Trademark licensed hereunder and all goodwill developed therefrom will inure solely to the benefit of the Trademark owner.
- 4. COMPLIANCE WITH LAW; SERVICE SPECIFIC TERMS
- 4.1. No ROLLER Warranty of Legal Compliance. ROLLER’s proprietary cloud-based platform offers an all-in-one back and front end technology solution for leisure and entertainment businesses. The Platform facilitates Customer’s ability to engage easily and effectively in business activities that entertain Venue Guests or assist with their visitation to, and activity at, any Venue. But some of these activities are subject to local, state, provincial and / or federal laws or regulations. ROLLER provides Customers around the globe the ability to engage in these regulated activities (e.g., payment processing, gift cards) and to otherwise reduce legal risk (e.g., ROLLER’s waiver Service), but ROLLER does not offer legal services and cannot (and does not) ensure that Customer’s use of the Services will comply with Applicable Law or provide Customer the protection of Applicable Law. Customer is solely responsible for its compliance and ROLLER disclaims any and all responsibility or liability for Customer’s failure to comply with Applicable Law. ROLLER offers a technology service that it believes facilitates a Customer’s ability to operate its business in compliance with Applicable Law – but Customer acknowledges and agrees that it is entirely the responsibility of Customer to ensure that: (a) no part of the ROLLER Services would inevitably cause Customer to violate Applicable Law and (b) in consultation with counsel qualified in the jurisdiction in which Customer is located, it will ensure that its use of the ROLLER Services and the operation of its business will be in compliance with Applicable Law.
- 4.2. Customer Warranties Re Compliance with Applicable Law and Its Contracts. Customer represents and warrants that it is and will continue to be compliant with all Applicable Laws in the operation of its business. Without limiting the foregoing, Customer represents and warrants: (a) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (b) the execution of the Agreement and Customer’s use of the Services will not conflict with or violate any provision of any Applicable Law or any agreement that Customer has with any third party; and (c) that the Agreement, when executed and delivered, will constitute a valid and binding obligation on Customer and will be enforceable against such Party in accordance with its terms.
- 4.3. Customer Terms of Service. The website operated by Customer into which the ROLLER Services are integrated, and the Customer branded versions of the ROLLER Services made available to such website visitors and Venue Guests at the Venue itself, must be governed by a valid and enforceable terms of service that complies with Applicable Law and, 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 Venue Guest; (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. Customer represents and warrants that it has consulted with counsel qualified in the jurisdiction in which the Venue is located before uploading any terms of service.
- 4.5. Waiver Service. he Waiver Service enables Customer to collect waivers at multiple times during the Venue Guest experience and via multiple device types (e.g., Self-Serve Kiosks at check-in, mobile devices when purchasing tickets). In the context of the business of many ROLLER customers, waivers offer significant legal protection, especially where the activities engaged in by the Venue Guest at the Venue cause the Venue Guest to have a greater than normal risk of injury. Unfortunately, there is no one size fits all waiver. To be effective, waivers need to meet certain legal standards that can vary from industry to industry and from jurisdiction to jurisdiction. Before uploading a waiver form into the ROLLER Services, Customer should engage counsel licensed or qualified in the jurisdiction in which the Venue is located to ensure that the waiver is valid, enforceable and protects Customer as intended from potential liability. As between Customer and ROLLER, Customer is solely responsible for the legality, validity and enforceability of the waiver. This is true even where ROLLER provides sample waiver forms. Sample waiver forms may be provided for the convenience of Customer, for educational purposes and for Customer’s thought consideration, but ROLLER does not warrant and specifically disclaims that any waivers (including any samples provided by ROLLER) will meet Customer’s needs, will be valid or will be enforceable. In all cases Customer should engage qualified local counsel to provide waivers that are valid, effective and enforceable in the jurisdictions and given the activities for which they are being used and Customer represents and warrants that it has consulted with counsel qualified in the jurisdiction in which the Venue regarding the legality, validity and enforceability of waivers.
- 4.6. Gift Card Service. The Roller Services provide a front-end and backend solution that enables the facilitation of electronic “merchant gift cards.” These are gift cards that allow individuals to pre-pay for Venue services which purchasers can use themselves as Venue Guests or which purchasers can give to others to be used as Venue Guests. With the advice of qualified counsel, operating a gift card program can be immensely useful to venues. But operating a gift card program touches on a number of different regulatory schemes and should only be done with the advice of counsel. Failure to consult with qualified counsel is a material breach of this Agreement and ROLLER may immediately suspend or terminate Customer’s use of the Gift Card Service or the Services generally.
There are three rules that ROLLER requires in connection with Customer’s use of the Gift Card Service.
- (a) Gift Card value purchased and recorded through the ROLLER Services must be used solely to purchase goods and services at the Venues owned by Customer. The gift card value may not be used to purchase goods and services at any other merchant.
- (b) Gift Card refunds may only be issued to the credit card on which the gift card was issued. If the purchaser or recipient of the gift card does not have the applicable credit card Customer must consult with counsel qualified in the jurisdiction in which Venue is located and counsel will reasonably direct ROLLER on how to proceed. Customer will indemnify ROLLER from any damages, liabilities, costs or expenses incurred by ROLLER in connection with any direction from counsel.
- (c) Stored value for any gift card or associated with any single person or household may not exceed the lesser of: (a) the largest amount permitted to be stored under applicable law and (b) a maximum amount established by ROLLER, currently US$500 or equivalent.
In the operation of the Gift Card Service, like with the Waiver Service, ROLLER is simply providing the technology that enables Customer to operate a gift card program. Customer itself receives all of the funds used to purchase the Gift Card, Customer (and not ROLLER) is storing the value and Customer is solely responsible for the use and operation of its gift card program, including compliance with Applicable Law.
For Customer’s convenience and to help Customer prepare for its meeting with counsel, ROLLER provide the link below that identifies United States federal and state laws that are specific to gift cards.
https://www.ncsl.org/research/financial-services-and-commerce/gift-cards-and-certificates-statutes-and-legis.aspx. This link operates as of the effective date of these Master Terms listed above. If for some reason this link does not work, please contact ROLLER so that the link may be updated. If Customer is located outside of the United States, ROLLER advises Customer to conduct research or seek counsel for guidance with respect to regulations that may govern gift cards specific to the jurisdiction in which the applicable Venue is located.
- 4.7. Payment Processing. One of the most significant features of the ROLLER Service is the ability to facilitate payments for Venue Guests and other Venue customers to Customer. There are two types of payment processing options Customers may be approved to use in connection with the ROLLER 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 Services” which consists of collecting all transactions via the ROLLER Services using Approved Payment Processors (as defined below), such as Worldpay or Braintree;
- (a) If Customer uses RPP as part of the Services, Customer agrees to also be bound by the ROLLER Payment Processing Terms of Service, which are incorporated herein by reference.
- (b) If Customer does not use RPP as part of the Services, Customer is required to use an Approved Payment Processor in accordance with Section 4.8 below.
- 4.8. Approved Payment Processors. Subject to Section 4.7, Customer will maintain, throughout the term, a contractual relationship with a Supported Payment Processor or such other payment processor as is approved by ROLLER in writing (each an “Approved Payment Processor”). Without limiting any other provision of this Agreement, in connection with this Agreement:
- (a) Customer will use only one of the payment processors identified by ROLLER as a Payment Gateway at https://www.roller.software/sub-processors (each a “Supported Payment Processor”). Customer acknowledges that ROLLER’s integration and support of any payment processor is not an endorsement of such payment processor and that characterization of a payment processor as a Supported Payment Processor merely means that ROLLER has used reasonable efforts to enable the payment processors services to work in connection with the ROLLER Services. ROLLER does not represent or warrant, and specifically disclaims, that it has performed diligence on any Supported Payment Processor and / or determined that any such Supported Payment Processor provides services that are compliant with laws or effective. ROLLER may, at its discretion, add or remove payment processors from the list of Supported Payment Processors. Once removed, ROLLER may no longer support any removed payment processor. Customer will be required to find an alternative payment processor within 30 days of receiving ROLLER’s notice of any payment processor’s removal from the list of Supported Payment Processors.
- (b) Customer use of the APP Services will be in accordance with all Applicable Laws (including the Scheme Rules) and its agreement with the applicable Approved Payment Processor. Without limiting the foregoing, Customer represents and warrants that its Approved Payment Processor will perform its services in accordance with Applicable Law, including compliance with applicable Know Your Customer obligations.
- (c) At any time during the Term, ROLLER may: (a) terminate the APP Services portion of any Order Form or (b) suspend access to the APP Services, including for the following reasons: (i) the Approved Payment Processor ceases to deliver any portion of the applicable services or the Approved Payment Processor is no longer supported by ROLLER; (ii) if a threat to the technical security or technical integrity of the APP Service; or (iii) a breach or violation by Customer of Applicable Law, including the Scheme Rules, or any contractual obligation, including a breach of the processing agreement between Customer and the applicable Approved Payment Processor. If the APP Service is suspended, ROLLER may charge a re-activation fee to reinstate the APP Service.
- (d) ROLLER accepts no obligation or liability, and ROLLER specifically disclaims any obligation or liability, with respect to the performance or non-performance of any third party including any Approved Payment Processor will properly and legally process all transactions.
- (e) In connection with the APP Services, ROLLER reserves the right to retain a certain percentage of any revenue Guest fees.
- 4.9. Reasonable Safeguards. Customer agrees to have in place reasonable safeguards, precautions and security procedures designed to: protect the Platform and the ROLLER Services from unauthorized access or use and protect ROLLER’s information technology systems, including implementing reasonable procedures to guard against Malicious Code, unauthorized interception, access, use or loss.
- 5. ADDITIONAL WARRANTIES AND DISCLAIMERS
- 5.1. Third Party Integrations. Customer 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 Customer (e.g., Approved Payment Processors). Customer 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.
- 5.2. Notification of Disqualifying Event. Customer represents and warrants that it will promptly notify Roller in the event that Customer has suffered, is suffering or suffers a Disqualifying Event. A “Disqualifying Event” means: (a) that Customer has breached an applicable law, (b) Customer becomes insolvent or otherwise triggers a bankruptcy threshold set forth in Section 10.4 or (c) an event or series of events that allows Roller to terminate an Order Form or this Agreement.
- 5.3. 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, NON-INFRINGEMENT, 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.
- 5.4. ROLLER IS NOT RESPONSIBLE FOR ANY ERROR BY THE PAYMENT PROCESSOR OR ANY PRODUCT OR SERVICE THAT IS A THIRD PARTY INTEGRATION.
- 6. INDEMNIFICATION
- 6.1. ROLLER will indemnify, defend and hold Customer 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 copyright, trademark or trade secret.
- 6.2. Exclusions. SSection 6.1 will not apply if the alleged claim arises, in whole or in part, from (a) a use or modification of the Services by Customer 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 by ROLLER if the claim would not have arisen but for the combination, operation or use; or (c) the Customer Content (any of the foregoing circumstances under clauses (a), (b) or (c) will be collectively referred to as a “Customer Indemnity Responsibility”).
- 6.3. Customer Indemnity. Customer will indemnify, defend and hold harmless ROLLER, its directors, officers, employees and representatives, from and against any and all Losses arising out of any: (a) Customer or Customer Personnel act or omission, including any Customer breach of any of Customer’s representations, warranties, or obligations; (b) any Customer Indemnity Responsibility; or (c) arising out of, related to or in connection with any Venue.
- 6.4. 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 the indemnified party’s consent.
- 6.5. 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 Customer 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 Order Form pursuant to which the Service is provided and give Customer a refund for any pre-paid but unused Fees.
- 6.6. THE PROVISIONS OF THIS SECTION 6 STATE ROLLER’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SERVICES INFRINGE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT.
- 7. LIMITATION AND EXCLUSION OF LIABILITY
- 7.1. Disclaimer of Indirect Damages. IN NO EVENT WILL ROLLER 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.
- 7.2. ROLLER’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 SIX (6) MONTH PERIOD PRIOR TO THE FIRST DATE ON WHICH THE APPLICABLE LIABILITY AROSE.
- 7.3. No Liability for Conduct of Third Parties. WITHOUT LIMITING THE FOREGOING, CUSTOMER ACKNOWLEDGES AND AGREES THAT ROLLER IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD ROLLER LIABLE FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF SERVICES THAT ARE INTEGRATED WITH THE ROLLER SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH CUSTOMER.
- 8. CONFIDENTIALITY
- 8.1. Use and Disclosure. During this Agreement, each party will have access to the other party’s Confidential Information. Except as otherwise expressly permitted, and without limiting each party’s obligations, under this Agreement, each party agrees as follows: (a) it will not disclose the Confidential Information of the other Party to anyone except its employees, contractors and advisors who have a need to know; (b) it will not use or reproduce the Confidential Information disclosed by the other Party for any purpose other than exercising its rights and performing its obligations as described herein; (c) each Party will take no less than commercially reasonable measures to protect the secrecy of, and void disclosure and unauthorized use of, the Confidential information; and (d) each Party will restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement (each a “Representative”). Each recipient will be liable for the acts and omissions of its Representatives with respect to the discloser’s Confidential Information.
- 8.2. Exceptions. The provisions of Section 8.1will not apply to Confidential Information that: (a) is or becomes publicly available or enters the public domain through no fault of the recipient; (b) is in the recipient’s possession without knowledge of any confidentiality obligations; or (c) is independently developed by the recipient without use of or reference to the disclosing party’s Confidential Information. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required: (1) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order will first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (2) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do. 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. INVOICING AND PAYMENT
- 9.1. Invoicing. Unless otherwise set forth in any Order Form, all Fees are to be invoiced by ROLLER, in advance, on an Annual basis.
- 9.2. Fees. Customer 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 Customer ceases operations during any contract year. Unless otherwise specified in any Order Form, all invoices issued by ROLLER will be due and payable upon receipt by Customer. All Fees will be paid in the currency specified in an Order Form. Any portion of the Fees that is not paid within 30 days from the due date will accrue interest at five percent (5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. The Fees exclude, and Customer 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, Customer may furnish to ROLLER an exemption certificate, provided however that if such exemption certificate is challenged or held invalid by a taxing authority, then Customer agrees to pay for all resulting fines, penalties and expenses (including without limitation reasonable attorneys’ fees and costs).
- 9.3. Expenses. Customer will reimburse ROLLER for any pre-approved travel and out-of-pocket expenses incurred by ROLLER in connection with the provision of Services, if Customer has approved such expenses in writing or via email.
- 9.4. Payment by Card. If Customer pays by credit card, Customer authorizes ROLLER to charge Customer’s credit card or bank account for all fees payable. Customer further authorizes ROLLER to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- 9.5. Payment Information. Customer will keep its contact information, billing information and credit card information (where applicable) up to date. Changes may be made on Customer’s Billing Page within the ROLLER Platform.
- 9.6. Costs of Collection. Customer agrees to promptly and fully reimburse ROLLER upon demand for all out-of-pocket costs and expenses, including without limitation, reasonable attorneys’ fees and expenses, incurred by ROLLER in collecting past due amounts from Customer.
- 10. TERM AND TERMINATION
- 10.1. 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 10 or as otherwise expressly provided in this Agreement (the “Term”).
- 10.2. Automatic Renewal. The Order Term will be set forth in any Order Form. Unless otherwise specified in the applicable Order Form, each Order Form will automatically renew on the first day following the end of: (a) the Initial Term specified in the Order Form (each a “Renewal Term”) or (b) any Renewal Term, unless either Party provides the other notice of its intent to terminate the Order Form no less than 60 days prior to the end of the then current term.
- 10.3. 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.
- 10.4. Termination Upon Bankruptcy or Insolvency. ROLLER may, at its option, terminate this Agreement or any Order Form immediately upon written notice to Customer, in the event (a) that Customer becomes insolvent or unable to pay its debts when due; (b) Customer 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) Customer discontinues its business; or (d) a receiver is appointed or there is an assignment for the benefit of Customer’s creditors.
- 10.5. Termination or Suspension of Service(s). At any time during the Term, ROLLER may: (a) terminate any Order Form, (b) the Agreement (including all Order Forms) or (c) suspend access to any Service immediately upon notice, including 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 Customer) is not received by ROLLER within thirty (30) days after it was due or (c) a breach or violation by Customer of Applicable Law. If any Service is suspended for non-payment, ROLLER may charge a re-activation fee to reinstate the Service.
- 10.6. 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), 3.7 (Feedback), 3.9 (Reservation of Rights), 5 (Additional Warranties and Disclaimers), 5 (Disclaimers as well as the Service Specific Disclaimers in Section 4), 6 (Indemnification), 7 (Limitation and Exclusion of Liability), 8 (Confidentiality), 9 (Invoicing and Payment), 10.6 (this survival section), and 11 (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.
- 10.7. Reasonable Notice. In the event that there is no defined and continuing Order Term, and where the Customer in its discretion has continued to use the Services, ROLLER requires reasonable notice of termination of this Agreement, which will be not less than 90 days, and which must be provided in writing.
- 11. MISCELLANEOUS
- 11.1. No Assignment. This Agreement cannot be assigned (including by operation of law) by either Customer or ROLLER without the prior written consent of the other party, provided, however, that ROLLER may assign this Agreement upon notice to Customer to any person, group or entity (collectively “Person”) that is an Affiliate, or acquires, merges with or purchases all or substantially all of the assets that relate to this Agreement. In the event that Customer experiences a Change of Control, Customer will provide written notice of such Change of Control no later than five calendar days of the date that such Change of Control occurs. A “Change of Control” means the consummation of any transaction or series of related transactions (including any stock or asset purchase, sale, acquisition, disposition, merger, consolidation or reorganization) the result of which is that any Person becomes the beneficial owners of more than fifty percent (50%) of the aggregate voting power of the party having the right to elect directors under ordinary circumstances.
- 11.2. Order of Precedence. To the extent there is a conflict between provisions in this Agreement, unless otherwise specified in the applicable document, the order of precedence will be the Order Form, the Supplemental Terms and these Master Terms, with the understanding that the conflicting provision in the Order Form or Supplemental Terms will prevail solely with respect to the applicable Order Form or Supplement Terms.
- 11.3. ROLLER Entity and Choice of Law. The ROLLER entity that is party to this Agreement is determined by which ROLLER Territory the Venue is located in accordance with the table below. The laws governing the Agreement will be the laws of the corresponding governing jurisdiction specified in the Choice of Law column in the table below, with the understanding that the jurisdiction’s provisions regarding conflicts of laws will not apply. And, except as provided in Section 11.4(c), any dispute, controversy or claim arising out of or relating to this Agreement will be made exclusively in courts located in the jurisdictions identified in the Location of Courts column in the table below. Both Parties submit to the personal jurisdiction of such courts. For example, if a Venue is located in Los Angeles, California, USA, the ROLLER Entity will be ROLLER USA, the governing law will be the laws of the State of Delaware and the United States and the location of any dispute will be the state and federal courts located in New Castle County, Delaware. In the unlikely event that a single Order Form specifies Venues that are located in more than one ROLLER Territory, the Order Form will be deemed divided into two or three Order Forms (as applicable) and modified Mutatis Mutandis, which is fancy way of saying all modifications to the Order Forms will be made appropriately, including that the revenue will be divided on a pro rata basis. For the avoidance of doubt, notwithstanding that this Agreement is governed by the Governing Law as determined by this Section 11.3, the Governing Law will not mitigate or modify any provision in this Agreement relating to Customer’s obligations to comply with Applicable Laws, which will be the “laws” of the jurisdiction(s) in which the Venue operates.
Location of Courts
Australia, New Zealand, Singapore & Other
Australia PTY Ltd
The laws of
Roller Networks USA, Inc.
The laws of the state of Delaware and the United States
New Castle County, Delaware
Europe & United Kingdom
Roller Networks Limited
The laws of England and Wales
- 11.4. Dispute Resolution. ROLLER and Customer 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:
- (a) Escalation of Disputes. Subject to Section 11.4(c) 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.
- (b) Litigation. If the parties are unable to resolve the dispute through the escalation process within the time specified in Section 11.4(a), or such further period as the parties will agree to in writing, either party may sue in the appropriate court as referenced in Section 11.3 above.
- (c) 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 8 (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.
- 11.5. Force Majeure. Neither party will be liable for any delay or failure in performance obligations due to a Force Majeure Event, with the understanding that this Section 11.5 will not apply to any payment obligation. 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. “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, epidemics, pandemics, acts of terrorism, or the stability or availability of the Internet or a portion thereof.
- 11.6. 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.
- 11.7. 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.
- 11.8. 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.
- 11.9. 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.
- 11.10. Modifications. ROLLER reserves the right, at its sole discretion, to modify or replace any of the terms or conditions of the Agreement, including any applicable Fees or charges, at any time (collectively, “Modifications”). Modifications to the Agreement will be posted to the ROLLER website with a change to the “Updated” date at the top of these Master Terms. In certain circumstances, ROLLER may provide Customer with additional notice of such Modifications, via email, with in-Service notifications or such other methods as ROLLER deems appropriate and are legally sufficient. Modifications will be effective fourteen (14) days following the “Updated” date or such other date as communicated in any other notice to Customer, except that changes addressing new functions of the Services or which do not impose any additional burdens or obligations on Customer will be effective immediately. It is Customer’s responsibility to check these periodically for Modifications. Customer’s continued use of the Services following the effectiveness of any Modifications to these Terms of Service constitutes acceptance of those Modifications as well. If any Modification to these Terms of Service is not acceptable to Customer, Customer must cease accessing, browsing and otherwise using the Services. Other than as set forth in this paragraph, these Terms of Service may only be modified through a written Addendum Agreement or Digital Platform Agreement, signed by Customer and approved by an authorized officer of ROLLER.
- 11.11. 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 at the addresses shown in the applicable Order Form 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 Modifications (as defined in Section 11.10 above may be provided in accordance with the notice requirements set forth in this Section 11.11. Unless updated by ROLLER in accordance with the terms of this Agreement, Customer can provide notice to ROLLER using the following address:
Roller Networks Pty Ltd
For attention: Mark Finn
Level 4, 101 Moray St
South Melbourne, 3205
Customer may also provide Notice via email, provided such Notice is sent to: firstname.lastname@example.org and ROLLER acknowledges receipt of such Notice via reciprocal email within 48 hours.
- 11.12. Counterparts. Order Forms or any other document that is to be executed by the Parties and to be incorporated herein 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 originally-executed counterpart, such party will retain the originally-executed counterpart in its files for at least the duration of this Agreement.