Professional Services Terms

1. PROFESSIONAL SERVICES AND SOW.

1.1 Professional Services.

Subject to the terms and conditions of these Professional Services Terms, customer (“Customer”) may order from Exit Games, Inc., having its principal place of business at 111 SW 5th Ave. STE 3150, Portland, Oregon 97204, USA (“Exit Games”), consulting, implementation and other professional services as described in a statement of work (collectively, “Professional Services”).

1.2. Deliverable and SOW.

Exit Games will perform Professional Services and provide the deliverables (each, a “Deliverable”) to Customer as described in any mutually agreed upon statement of work or similar document (“SOW”). Each SOW will include the particulars of each Professional Services engagement. If the engagement term is not specified in the SOW, the Professional Services will expire within 12 months from the date of the applicable SOW, and any unused hours will expire at such time. In the event of a conflict between the terms of these Professional Services Terms and the terms of a SOW, the SOW shall govern with respect to any such conflicting terms. These Professional Services Terms and the SOW are collectively referred as “Agreement” hereinafter.

1.3. Customer Assistance.

Customer shall: (i) in a timely manner, provide all assistance reasonably requested by Exit Games in connection with the Professional Services; (ii) respond promptly to any Exit Games request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Exit Games to perform Professional Services in accordance with the requirements of the Agreement; (iii) provide such customer materials or information as Exit Games may reasonably request to carry out the Professional Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Professional Services before the date on which the Professional Services are to commence.

1.4. Customer's Acts or Omissions.

If Exit Games' performance of its obligations under the Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Exit Games shall not be deemed in breach of its obligations under the Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

2. WARRANTIES AND DISCLAIMER.

2.1 Exit Games Warranties.

Exit Games warrants that will perform all Professional Services in a professional manner consistent with industry standards and practices. Notwithstanding the foregoing warranty, Exit Games will not be liable, and shall have no obligation thereunder, to the extent that any breach of the foregoing l warranty is caused by (i) any third-party components or services (including in combination with the Deliverables) not provided by Exit Games; (ii) unauthorized use or use of the Deliverables other than for the agreed purpose(s), or (iii) any software, hardware or other technology, device or means, including any code, files, scripts, agents, programs, viruses, worms, time bombs, Trojan horses or other computer software routines intentionally designed do harm, that were introduced by Customer, its agents or users (each an “Exclusion”). In the event of any breach of the limited warranty set forth in this Section 2.1 (subject to the Exclusions), Customer must notify Exit Games of the defective Deliverable or Professional Service (reasonably described) in writing within thirty (30) calendar days after the provision of the Professional Services. Subject to the foregoing notice requirement, Exit Games' shall, as its sole liability and Customer’s sole remedy, diligently remedy any deficiencies promptly and at no cost to Customer after Exit Games’ timely receipt of written notice from Customer.

2.2. Customer Warranties.

Customer represents and warrants that (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under the Agreement; (iii) plans, specification, information or materials provided by Customer shall not infringe the rights of any third party, violate any third party agreement, or violate any law, rule, or regulation; and (iii) the execution of the Agreement by its representative whose signature is set forth at the end of the Agreement has been duly authorized by all necessary corporate or organizational action of Customer. To the extent Customer requires Exit Games to obtain additional registrations or licenses specific to the Customer’s industry and requirements outside of Exit Games’ standard scope of operating its organization (e.g. special operating licenses or certifications), Customer shall reimburse Exit Games for any costs incurred for such registration or licensing fees or enter into such agreements directly.

2.3. Warranty Disclaimer.

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTIONS 2.1 AND 2.2 ABOVE, ALL PROFESSIONAL SERVICES AND DELIVERABLES ARE PROVIDED "AS IS" AND EXIT GAMES HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER, AND EXIT GAMES SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, EXIT GAMES MAKES NO WARRANTY OF ANY KIND THAT THE PROFESSIONAL SERVICES OR DELIVERABLES OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES OR BE SECURE, ACCURATE, COMPLETE, FREE OF VIRUSES, OR ERROR FREE.

3. INDEMNIFICATION.

3.1. Exit Games Indemnification.

Exit Games shall indemnify and defend at its own expense any action against Customer, its officers or employees, (each, a "Customer Indemnitee") brought by a third party to the extent that such action is based upon a claim that (i) if true, would constitute a breach by Exit Games of its obligations under Section 6 (Confidentiality); or (ii) a Deliverable when used as agreed between the parties, infringes or misappropriates any United States copyright or any trade secret rights. Exit Games shall pay those costs and damages finally awarded against a Customer Indemnitee in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action (provided that Exit Games has approved of such settlement in writing), as well as any expenses reasonably incurred by Customer that are specifically attributable to such claim. NOTWITHSTANDING THE FOREGOING, EXIT GAMES' INDEMNIFICATION OBLIGATIONS ARE (A) SUBJECT TO THE LIMITATIONS OF LIABILITY SET FORTH IN SECTION 4 BELOW, AND IN NO EVENT SHALL EXIT GAMES' COLLECTIVE AGGREGATE LIABILITY EXCEED A TOTAL AMOUNT OF TWO HUNDRED THOUSAND DOLLARS; AND (B) CONDITIONED ON CUSTOMER NOTIFYING EXIT GAMES PROMPTLY IN WRITING OF ANY SUCH ACTION (AND IN ANY EVENT, WITHIN FIVE (5) CALENDAR DAYS OF CUSTOMER'S DISCOVERY OF THE FACTS GIVING RISE TO SUCH ACTION), CUSTOMER GIVING EXIT GAMES SOLE CONTROL OF THE DEFENSE THEREOF AND ANY RELATED SETTLEMENT NEGOTIATIONS, AND CUSTOMER'S REASONABLE COOPERATION INCLUDING, AT EXIT GAMES' REASONABLE REQUEST AND EXPENSE, ASSISTING IN SUCH DEFENSE.

If a Deliverable (or any component thereof) becomes, or in Exit Games' opinion is likely to become, the subject of an infringement claim, Exit Games may, at its option and expense, either (a) procure for Customer the right to continue exercising the rights licensed to Customer under the Agreement; or (b) replace or modify the Deliverable so that it becomes non-infringing and remains functionally equivalent. If neither of the foregoing options are, in Exit Games' reasonable opinion, commercially reasonable, Exit Games may terminate the Agreement and shall refund to Customer on a pro rata basis any prepaid Fees for the affected Deliverable. Notwithstanding the foregoing, Exit Games will have no obligations under this Section 3.1 or otherwise with respect to any infringement claim based upon any Exclusion. This Section 3.1 states Exit Games' entire liability and Customer's sole and exclusive remedy for infringement claims and actions.

3.2. Customer Indemnification.

Customer shall indemnify, defend, and hold harmless Exit Games, its affiliates, and subcontractors, and each of their respective officers, directors, employees, agents, successors, and assigns, from and against all third party suits, claims, demands, penalties, fines, charges, proceedings, causes of action, damages, looses, liabilities, costs and expenses of any nature (including attorneys' fees) that result from or arise out of (i) any breach of Customer’s warranties; (ii) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or its developer(s) and used by Exit Games according to the Agreement; (ii) breach of its representations, warranties, or other obligations hereunder, and (iii) any negligence or a more culpable act or omission by Customer, an authorized personnel, or any third party on behalf of Customer, in connection with the Agreement.

4. LIMITATIONS ON LIABILITY.

4.1. EXCLUSION OF DAMAGES.

(I) IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, OR REPRESENTATIVES BE LIABLE TO THE OTHER PARTY, OR ANY OTHER PERSON OR ENTITY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOSS OF GOODWILL, IN ANY WAY RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO USE A DELIVERABLE OR THE PERFORMANCE OR NON-PERFORMANCE OF THE PROFESSIONAL SERVICES, INCLUDING, WITHOUT LIMITATION, ANY FAILURE OF ESSENTIAL PURPOSE, EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY, OR OTHERWISE; AND (II) IN ADDITION TO AND WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL EXIT GAMES OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, OR REPRESENTATIVES BE LIABLE TO CUSTOMER, OR ANY OTHER PERSON OR ENTITY, FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, OR OTHER DAMAGES OF ANY KIND RELATING TO OR RESULTING FROM INFRINGEMENT OF ANY THIRD-PARTY PATENTS OR RIGHTS THEREIN (INCLUDING, BUT NOT LIMITED TO, LIABILITY RESULTING FROM EXIT GAMES' INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT IN CONNECTION WITH ANY SUCH INFRINGEMENT OF THIRD-PARTY PATENTS).

4.2. CAP ON MONETARY LIABILITY.

IN NO EVENT SHALL EITHER PARTY'S COLLECTIVE AGGREGATE LIABILITY TO THE OTHER PARTY (OR TO ANY OTHER PERSON OR ENTITY) IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER EVER EXCEED TWO HUNDRED THOUSAND DOLLARS (US-$200,000.00) UNDER ANY LEGAL OR EQUITABLE THEORY, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY, OR OTHERWISE, OR RESULTING FROM A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.

5. LICENSE GRANTS.

5.1. License in the Deliverables.

Subject to the terms of this Agreement and Customer’s payment of the Fees (as defined below), Exit Games grants to Customer a non-exclusive, worldwide, transferable, sublicensable and perpetual license to use the Deliverables for Customer’s internal business operations and to make a reasonable number of copies of them.

5.2. Customer Materials.

Any information and materials of Customer provided by or made available by Customer (or on its behalf) to Exit Games for Exit Games’ use in connection with a SOW, including any extensions, improvements or enhancements of such, (collectively, “Customer Materials”) remain Customer’s or its licensors' property. If Exit Games is deemed to have any rights or ownership to Customer Materials, Exit Games hereby assigns and transfers all of its rights, title and interest in or to Customer Materials to Customer. If Exit Games creates or develops, whether alone or jointly, any improvements, enhancements or extensions to Customer Materials, such will be deemed works made for hire and be deemed to be owned or controlled by Customer. Pursuant to Customer’s intellectual property rights in Customer’s Materials, Customer grants Exit Games a non-exclusive, revocable, limited and non-transferable right to use these Customer Materials solely for the benefit of Customer in fulfilment of Exit Games’ obligations under the Agreement. Customer warrants that it has the necessary rights to provide its Customer Materials to Exit Games, so that Exit Games can access, use, and modify these Customer Materials as necessary for Exit Games’ performance of the Professional Services.

5.3. Reservation of other Intellectual Property Rights.

All rights in materials developed or obtained by or for Exit Games which are based on, improvements to, extensions, enhancements or derivatives of Exit Games products or services or which are created independently of the Professional Services, or that by themselves provide generic technical information not based on Customer’s business or Customer Materials remain Exit Games’ sole property. Exit Games will not be limited in developing, using or marketing services, materials or products that are similar to or related to the Deliverables or in using the Deliverables in or performing similar Professional Services for any other projects or parties, provided in all cases, Exit Games does not use or reference any Customer Materials or Customer confidential information with regard thereto.

6. CONFIDENTIALITY.

In connection with this Agreement each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). "Confidential Information" means, with respect to a Disclosing Party, all non-public confidential information pertaining to such party's business. Exit Games and Customer will comply with this Section 6 when exchanging and handling Confidential Information under this Agreement. Confidential Information will be designated and/or marked as confidential when disclosed, provided that any information that the Receiving Party knew or reasonable should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party even if not designated or marked as such. The Receiving Party shall preserve the confidentiality of the Disclosing Party's Confidential Information and treat such Confidential Information with at least the same degree of care that the Receiving Party uses to protect its own Confidential Information, but not less than a reasonable standard of care. The Receiving Party will use the Confidential Information of the Disclosing Party only to exercise rights and perform obligations under this Agreement. Confidential Information of the Disclosing Party will be disclosed only to those employees, affiliates or contractors of the Receiving Party with a need to know such information and who agree to comply with the confidentiality and security provisions of this Agreement with respect to the handling of such Confidential Information. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information. If the Receiving Party is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall notify the Disclosing Party promptly and prior to any such required disclosure and reasonably assists the Disclosing Party in efforts to limit such required disclosure.

7. FEES AND PAYMENT.

7.1. Fees.

Subject to the terms and conditions below, all fees for Professional Services (the “Fees”) will be set forth in the applicable SOW.

7.2. Payment Terms.

Unless otherwise agreed to in writing by the parties, Customer will pay to Exit Games, as applicable, all Fees owed within 30 days of the date of the invoice pertaining thereto. Payments will be sent to the address included on the invoice. All amounts payable shall be in the currency of the United States and specifically exclude, (and Customer is responsible for), any and all applicable sales, use and other taxes (other than taxes based on Exit Games’ income). Each party is responsible for its own expenses under this Agreement unless expressly agreed otherwise.

8. TERMINATION AND EFFECT.

8.1. Termination.

This Agreement shall continue in effect until terminated as set forth herein. This Agreement may be terminated (i) by either party if the other party materially breaches this Agreement and does not cure the breach within 30 days after receiving written notice thereof from the non-breaching party (except that such cure period shall be five days for breaches of Sections 7.2); (ii) as set forth in Section 3.1; or (iii) by Exit Games if Customer becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

8.2. Effect.

Upon any termination of this Agreement, without prejudice to any other rights or remedies which the parties may have under this Agreement, (i) all rights and obligations hereunder shall immediately cease; provided that Sections 3.0 through 8.0 and any other provisions with express survival language shall survive termination, and

(ii) Customer shall pay to Exit Games any outstanding Fees that have accrued prior to the date of termination.

9. MISCELLANEOUS.

The parties are independent contractors with respect to each other, and nothing in the Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties. Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements (each a "Force Majeure Event"). The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the relevant Force Majeure Event; provided however that (i) the affected party gives prompt written notice to the other party and takes commercially reasonable steps to mitigate the effects of the applicable Force Majeure Event, and (ii) after a delay of ninety (90) calendar days or more after the affected party's notice, either party may terminate this Agreement upon written notice to the other given in accordance with the notice provisions hereof. The Agreement controls the actions of all party representatives, officers, agents, employees and associated individuals. The terms of the Agreement shall be binding on the parties, and all successors to the foregoing. Neither party shall assign, transfer, or delegate its rights or obligations under the Agreement (in whole or in part) without the prior written consent of the non-assigning party, provided that either party may assign its rights and obligations under the Agreement without the other party's prior written consent in connection with a sale of all or substantially all of a party's business or assets. Any attempted assignment, transfer, or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of the Agreement must be in writing and signed by the parties hereto and expressly reference this Agreement. The Agreement shall be governed by the laws of the State of New York, without regard to New York conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims, and controversies arising from or relating to the Agreement shall be the state or federal courts located in New York. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of the Agreement. In the event that any provision of the Agreement conflicts with governing law or if any provision is held to be null, void, or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants, and restrictions of the Agreement shall remain in full force and effect. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by Exit Games. The terms on any purchase order or similar document submitted by Customer to Exit Games will have no effect and are hereby rejected. Except as expressly provided in this Agreement, all notices, consents and approvals under the Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth in the first paragraph above and sent to the attention of such party's Chief Executive Officer or other officer designated in writing by a party as to itself. Properly delivered notices shall be effective (i) in the case of facsimiles, on the next business day, (ii) in the case of courier, upon the date of delivery to such courier or the next business day, or (iii) in the case of registered mail, three (3) business days after posting. This Agreement may be executed by facsimile copy and in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same Agreement.