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Polycade Commercial Purchase and Subscription Agreement

POLYCADE ARCADE MACHINE
COMMERCIAL PURCHASE AND SUBSCRIPTION  TERMS & CONDITIONS

 

These Commercial Purchase and Subscription Terms & Conditions (these “Terms”) governs the purchase of Polycade Arcade Machines and  subscriptions to the Polycade Subscription Service by companies and other commercial enterprises. 

BY PURCHASING AND PLACING AN ORDER THROUGH THIS WEBSITE YOU ARE ACCEPTING THESE TERMS ON BEHALF OF YOUR COMPANY OR COMMERCIAL ENTERPRISE

DEFINITIONS.  As used in these Terms, the following capitalized terms shall have the meanings set forth below:

“Affiliate(s)” means an entity that directly or indirectly controls, is controlled by, or is under common control with, a party to these Terms.  For purposes of the foregoing, “control” means ownership or the power to dispose of greater than fifty percent (50%) of any outstanding class of equity securities or interests in the subject entity.

Documentation” means any training, technical or user manuals and other documentation for the Polycade Arcade Machines which Polycade in its sole discretion may make available to Customer from time to time through the Polycade website or otherwise.   

Error” means the failure of a Polycade Arcade Machine to operate in accordance with its applicable Documentation.

Maintenance Services” means maintenance services for Polycade Arcade Machines.

Personnel” means the directors, officers, employees, partners, agents, advisers, independent contractors and subcontractors of a party and its Affiliates, or another entity, as applicable; provided that the Personnel of Polycade and its Affiliates will not be deemed to be Personnel of Customer.

Polycade Arcade Machines” means equipment and hardware (including Software, to the extent contained on such equipment and/or hardware), provided by Polycade to Customer under these Terms.

Polycade Platform” means Polycade’s (1) proprietary cloud-based service for the management of Video Game Content, including, without limitation, games, sponsorships, tournaments, and statistics, on Polycade Arcade Machines, together with all associated software code, technical documentation, processes, methodologies, architecture, and user interfaces; (2) Polycade’s application programming interfaces, if any; and (3) any and all updates, modifications, customizations, corrections or enhancements to the foregoing.

Polycade Subscription Service” means the subscription based service pursuant to which Polycade provides access to the Polycade Platform pursuant to these Terms.

Software” means any firmware, middleware and other software code, including, without limitation, any Third Party Game Content software loaded or contained on Polycade Arcade Machines provided by Polycade under these Terms. 

“Third Party Game Content” means the video games, trademarks, logos and other indicia of third party video game publishers that are pre-loaded or otherwise installed on Polycade Arcade Machines by Polycade pursuant to licenses granted to Polycade by each such video game publisher.

Updates” means any new updates, upgrades and/or bug fixes which Polycade in its sole discretion may make available for the Software incorporated in the Polycade Arcade Machines from time to time.  The term “Software” will be deemed to include any Updates for purposes of these Terms.

  1.   TERM. These Terms will become effective at the time of purchase.
  2.   ORDERING PRODUCTS.
    1.   General Description.  These Terms contain the terms upon which Customer may procure Polycade Arcade Machines and subscriptions to the Polycade Subscription Service from Polycade.  Polycade Arcade Machines and subscriptions to the Polycade Subscription Service may only be ordered and delivered in the United States and Canada. 
    2.   Purchase Orders.  Any orders for Polycade Arcade Machines subscriptions to the Polycade Subscription Service will be subject to the execution by both parties of a purchase order in the form provided by Polycade and available here setting forth the terms of each order (each, a “Purchase Order”).  Polycade shall have no obligation with respect to any ordered Polycade Arcade Machines or Polycade Subscription Services unless and until it accepts an order by executing the Purchase Order through the Polycade Website. Each Purchase Order shall contain the specific terms related to the Polycade Arcade Machines and Polycade Subscription Services being procured by Customer, and may include, without limitation, the number of Polycade Arcade Machines being ordered, the corresponding number of subscriptions to the Polycade Subscription Service being ordered, the number of video games that will be available on each Polycade Arcade Machine, the location where the Polycade Arcade Machines will be installed where the Polycade Subscription Services are to be provided, and the purchase price and subscription fees (as applicable).  All Purchase Orders for Polycade Arcade Machines and  Polycade Subscription Services will be subject to these Terms.  No additional or different terms in any Customer purchase order or similar document shall modify these Terms or a Purchase Order unless such terms are specifically accepted in writing by Polycade.    
  3.     POLYCADE ARCADE MACHINES.
    1.   Sale of Polycade Arcade Machines.  The purchase price for each Polycade Arcade Machine shall be set forth in the relevant Purchase Order mutually executed by the parties.  Prices do not include, and Customer shall be exclusively responsible for, the cost of freight, insurance, warehousing, rigging, or any required federal, state or local sales, use, excise or other taxes, duties, export or custom charges, VAT charges, or brokerage or other fees.  Upon Customer’s request, Polycade will provide to Customer a bill of sale evidencing the transfer of title to each Polycade Arcade Machine to Customer.   
    2.   Shipment Terms. All Polycade Arcade Machines acquired by Customer under these Terms will be packaged for shipment in Polycade’s standard containers, marked for shipment to Customer at the address specified in the Purchase Order, and delivered to Customer or the forwarding agent selected by Customer within the United States or Canada.  Shipment of Polycade Arcade Machines under these Terms shall be F.O.B. Polycade’s warehouse or related facility.  Polycade shall use commercially reasonable efforts to ship Polycade Arcade Machines to Customer within 4-6 weeks of Customer’s order.   Customer understands that Polycade cannot guarantee date of delivery.  Any expense for any special packaging or any special delivery requested by Customer shall be borne solely by Customer.
    3.   Title and Risk of Loss.  Title and risk of loss will pass to Customer F.O.B. Polycade’s warehouse or related facility.  Customer will be responsible for and pay all freight, shipment, and insurance charges associated with shipment of the Polycade Arcade Machines, even if the order is rejected upon delivery.
    4.   Right to Delay or Cancel.  Polycade reserves the right to refuse, cancel or delay any shipment to Customer when Customer is delinquent in payments, when payment for a shipment has not been arranged to Polycade’s reasonable satisfaction, or when Customer has failed to perform any of its material obligations under these Terms.
    5.   Acceptance of Shipments.  Customer shall have five (5) days from the date of arrival of the shipment of the Polycade Arcade Machines to the shipping location designated by Customer to inspect the Polycade Arcade Machines and notify Polycade of any discrepancies, including, but not limited to any discrepancies in the quantity or quality of the Polycade Arcade Machines.  Notices of any discrepancies shall be in writing with reasonable detail and shall be provided to Polycade by email at [insert email address].  Any Polycade Arcade Machines found to be defective or non-conforming shall be returned to Polycade, according to Polycade’s instructions (including, if applicable, making a return only after receiving a return authorization from Polycade), with the return shipment to occur no later than three (3) days after the end of the five (5) day acceptance period), and if the Polycade Arcade Machines are confirmed to be defective or non-conforming, Polycade will either credit Customer’s account for all amounts paid for the non-confirming Polycade Arcade Machines or replace the returned Polycade Arcade Machines.  If Customer does not provide notice of a discrepancy in accordance with this Section 5.5 during the five (5) day acceptance period, then the Polycade Arcade Machines shall be deemed accepted. 
    6. Correction of Errors After Acceptance.  Polycade will correct any Errors remaining to be corrected after acceptance by Customer in accordance with the  warranty described in these Terms.
  4.   POLYCADE SUBSCRIPTION SERVICE
    1.   Subscription Period.  Customer hereby purchases a subscription to the Polycade Subscription Service in connection with each Polycade Arcade Machine purchased by Customer pursuant to these Terms.  The term of the subscription shall commence upon the date of the delivery of each applicable Polycade Arcade Machine and shall extend for a period of two (2) years from such date (the “Initial Subscription Period).  The Initial Subscription Period shall automatically renew for additional successive one (1) year subscription periods (each a “Renewal Subscription Period”, and together with the Initial Subscription Period, the “Subscription Period”).  Notwithstanding the foregoing, Customer may terminate the Subscription Period effective as of the end of the Initial Subscription Period or the then current Renewal Subscription Period by providing Polycade with at least sixty (60) days prior written notice (email to suffice) of such termination prior to the end of the Initial Subscription Period, or the then current Renewal Subscription Period, as applicable,
    2.   Subscription Fees.  The fee for the Initial Subscription Period is included in the cost of each applicable Polycade Arcade Machine.  The fee for each Renewal Subscription Period shall be Polycade’s then current subscription fee as set forth on the Polycade website here.  Fees for Renewal Subscription Periods may be paid on an annual or monthly basis, at Customer’s discretion as specified by Customer in each applicable Purchase Order.
    3. Platform Services.  During the Subscription Period Polycade will provide Customer with certain subscription services through the Polycade Platform.  Such services may include, but may not be limited to, the following:  installation, removal and maintenance of Software and Video Game Content on Polycade Arcade Machines; organizing, hosting and promoting video game tournaments that can be played by users of Customer’s Polycade Arcade Machines either for free or for a fee, as determined by Polycade in its sole discretion, enabling users of Customer’s Polycade Arcade Machines to log into the Polycade Platform to create or access accounts that store video game statistics and other user-related data and to play video games imbedded on Customer’s Polycade Arcade Machines.
    4. Updates.  Polycade shall provide Customer with such Updates from time to time as it generally furnishes to other subscribers to the Polycade Subscription Service.  If Customer is unable to receive Updates or does not follow Polycade’s instructions for receiving Updates, Polycade shall not be responsible for any Errors (or failure to correct Errors), or any related losses, that may ensue.
  5.   SOFTWARE; INTELLECTUAL PROPERTY RIGHTS.
    1. License Grant.  Polycade hereby grants to Customer a limited, non-exclusive, non-transferable (except in connection with a permitted assignment of these Terms), non-sublicensable license to use the Software solely in connection with the Polycade Arcade Machines in which it is incorporated as specified in the relevant Purchase Order.  Customer may not use the Software for any other purpose.   Notwithstanding Customer’s purchase of the Polycade Arcade Machines, Customer understands that the Software is licensed and not sold, and title to all copies of the Software shall remain with Polycade or its licensors. 
    2. Additional Restrictions.  Customer may not copy the Software, extract the Software from the Polycade Arcade Machines or the Polycade Platform, reverse-engineer, decompile or attempt to derive the source code or protocols for the Polycade Arcade Machines, the Software or the Polycade Platform, install, or attempt to install, any additional software on the Polycade Arcade Machines without the express prior written consent of Polycade, use the Software in a service bureau capacity or to provide services to a third party (other than enabling third parties to use the Polycade Arcade Machines to play video games and access the Polycade Platform), combine the Software with any other products or service (other than the Polycade Arcade Machines), copy or emulate the features or functionality of the Polycade Arcade Machines or Software, or use the Polycade Arcade Machines or Software to develop or provide another product or service. 
    3. Intellectual Property Rights.  As between the parties, Polycade owns or has a valid right to use  all intellectual property and other proprietary rights in and to the Software, Polycade Arcade Machines, the Documentation and the Polycade Platform, including, but not limited to, any copyrights, patents, trademarks, service marks, trade names, trade dress, mask works, industrial design rights, trade secrets and any other proprietary rights that are associated with the foregoing throughout the world, and Customer acknowledges that it receives no right, title or interest to the Polycade Arcade Machines, Software, Documentation and/or the Polycade Platform except for the limited rights expressly provided within these Terms.  Customer may not obfuscate or remove any proprietary notices on any Polycade Arcade Machines or Documentation.  Customer agrees not to contest Polycade’s and/or its licensor’s intellectual property or proprietary rights in or to the Polycade Arcade Machines, Software, Documentation and/or the Polycade Platform.  All feedback, suggestions, improvements and similar information relating to the Polycade Arcade Machines, Software, Documentation and Polycade Platform provided by Customer to Polycade shall be the sole property of Polycade which may freely use them without any obligation to obtain consent or pay compensation.    Notwithstanding the foregoing, the Polycade Arcade Machines and the Polycade Platform may embody or contain Third Party Gaming Content which at all times is and remains the sole and exclusive intellectual property of the applicable Third Party Gaming Content publisher.
  6.   PAYMENT TERMS.  Polycade shall send Customer invoices via email or facsimile for each order of Polycade Arcade Machines and Polycade Subscription Services, as applicable.  Terms are cash in advance of shipment of Polycade Arcade Machines and commencement of Polycade Subscription Services.  Payments due hereunder must be made by wire transfer, certified check, bank check, credit card or such other method as may be agreed upon by the parties.  Customer shall have no right of set-off or withholding, and no deduction of amounts due from Customer to Polycade shall be made without Polycade’s prior written approval.  Any amounts not paid by Customer when due (including any charge-back or other reversal of payment, or return of a check for insufficient funds) shall be subject to interest charges from the date due until paid, at the rate of one and one half percent (1.5%) per month, or the highest interest rate allowable by law (whichever is less), payable monthly.  If Customer charges back or otherwise reverses payment, or if a check is returned for insufficient funds, Polycade may also assess an additional fee.  If Customer fails to pay any amount owed under these Terms when due, it shall also be responsible for any reasonable collection costs incurred by Polycade. Without limiting its other rights under the Agreement, if any amounts due to Polycade become past due for more ten (10) days, Polycade may at its option and without further notice withhold further shipment of Polycade Arcade Machines and/or suspend Polycade Subscription Services until all invoices have been paid in full.  All fees and expenses must be paid in U.S. Dollars.
  7.   REPRESENTATIONS AND WARRANTIES.
    1. Limited Warranty – Polycade Arcade Machines.  Polycade warrants that for a period of ninety (90) days from the acceptance by Customer of each applicable Polycade Arcade Machine purchased by Customer pursuant to these Terms (the “Warranty Period”), each such Polycade Arcade Machine, when used in normal use and in accordance with the Documentation, will be free of defects in materials and workmanship and operate without material Errors during the Warranty Period. In the event that Customer notifies Polycade in writing of a breach of the foregoing warranty during the Warranty Period and fully complies with any instructions of Polycade regarding returns (including, if applicable, shipping only after receiving a return authorization from Polycade), then Polycade shall, at its expense, and on an exchange basis, repair or replace the Polycade Arcade Machines, or part thereof, with a conforming machine or part within a reasonable time and shall bear all costs of shipping the repaired or replaced machine or part back to Customer.  In the event that it fails for any reason to do so, Polycade will refund to Customer the purchase price of the defective machine or part.  The foregoing is Polycade’s sole liability, and Customer’s sole and exclusive remedy, for any breach of the warranty in this Section 7.1.   The foregoing warranty does not apply to any failure or Error in a Polycade Arcade Machine that results from (i) misuse or improper or negligent handling or storage by Customer or any of its employees, agents or service providers or any other third party not under Polycade’s control (including without limitation, any users of Customer’s Polycade Arcade Machines), (ii) Customer’s failure to adequately package or ship a machine or a part in accordance with Polycade’s instructions, (iii) Customer’s failure to use the Polycade Arcade Machine in accordance with the Documentation or as otherwise specified by Polycade in writing, (iv) Customer’s failure to maintain the proper hardware, systems and applications for use of the Polycade Arcade Machine as required by the Documentation or otherwise specified by Polycade in writing, (v) use of the Product in a manner or for a purpose not expressly permitted in the Documentation, (vi) failures of Customer or third-party hardware, software, equipment, platforms or network or networks, or (vii) an event described in Section 13.10.  In addition, any modification of a Polycade Arcade Machine by a person other than Polycade or its agents shall render the warranty on the Product null and void (together with (i)-(viii) above, collectively, the “Warranty Exclusions”).  Polycade may use either new or refurbished Polycade Arcade Machines and/or parts to fulfill its obligations with respect to the warranty in this Section 7.1. 

Resolution of some Errors may require installation of Updates to the Software.  If Customer is unable to receive Updates or does not follow Polycade’s instructions for receiving Updates, Polycade shall not be responsible for any failure to remediate such Errors or any losses resulting therefrom.

    1. Limited Warranty – Software and Polycade Platform.   Polycade warrants that the Software and the Polycade Platform, as delivered or provided by Polycade to Customer will materially conform to the specifications as described in their then current Documentation during the Subscription Period. As Customer’s sole and exclusive remedy, and Polycade’s sole liability, for any breach of the foregoing warranty, Polycade shall take reasonable steps to correct or repair the Software and the Polycade Platform so that they materially conform to their applicable Documentation. Notwithstanding the foregoing warranty, Polycade shall not be obligated to remedy any failure or defect in the Software or Polycade Platform that cannot be adequately repeated.  The foregoing warranty does not apply to any failure or defect in the Software or the Polycade Platform that results from (i) Customer’s failure to maintain the proper environment to allow guests to access and use the Polycade Platform (including any failure to maintain the hardware, systems and applications required by the Documentation or otherwise specified by Polycade in writing), (ii) use of the Software or the Polycade Platform in a manner or for a purpose not expressly permitted in these Terms or the Documentation, or (iii) as a result of an event described Section 13.10.
    2. Mutual Warranties.  Each party warrants to the other party that it is duly authorized and has full authority to enter into these Terms and to carry out its obligations under these Terms (including, in Customer’s case, making the purchases specified in each Purchase Agreement). 
    3. Disclaimer.  POLYCADE MAKES NO OTHER WARRANTIES, EXPRESS OF IMPLIED, WITH RESPECT TO THE POLYCADE ARCADE MACHINES, THE SOFTWARE, DOCUMENTATION, THE POLYCADE SUBSCRIPTION SERVICE OR THE POLYCADE PLATFORM INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, SECURITY, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM FROM VIRUSES, OR NON-INFRINGEMENT.  ALL REPRESENTATIONS AND WARRANTIES OTHER THAN THE EXPRESS LIMITED WARRANTIES MADE IN THESE TERMS ARE HEREBY DISCLAIMED.  POLYCADE DOES NOT GUARANTEE THAT ALL DEFECTS AND ERRORS CAN OR WILL BE CORRECTED.
  1. INDEMNIFICATION.
    1. Polycade Indemnity. Polycade shall indemnify and hold harmless Customer from any damages awarded by a court of competent jurisdiction in a final, non-appealable ruling or from any amounts agreed upon by Polycade in a settlement, where such damages or settlement amounts arise from a third party claim or cause of action (a “Claim”) alleging that the Polycade Arcade Machines, the Software (excluding any Third Party Game Content), the Polycade Subscription Service or the Polycade Platform infringe any United States patent, trademark or copyright.  Should any of the foregoing become, or in Polycade’s opinion be likely to become, the subject of a claim of infringement, Polycade shall, at its option and expense either: (i) procure for Customer the right to continue to use the infringing element, or (ii) replace or modify the infringing element to make its use non-infringing without loss of substantial functionality.  Notwithstanding the foregoing, if Polycade, in its sole discretion, determines that neither of the said options is reasonably available to it, Polycade, at its option, may require Customer to return the infringing element (or Polycade may disable the infringing element) and refund to Customer a pro-rated portion of the purchase price paid for the infringing element, with the pro-ration determined on a straight-line basis over a period of two (2) years from the date of shipment of the infringing element.  Notwithstanding the foregoing, Polycade shall have no liability or obligation to Customer with respect to any infringement Claim based on: (i) use of the Polycade Arcade Machines, Polycade Platform and/or the Software in combination with other business processes, products, devices, software, services or components which were not furnished to Customer by Polycade or which were not explicitly approved in writing by Polycade, if the infringement would not have occurred but for the combination; (ii) modification or alteration of the Polycade Arcade Machines, Polycade Platform and/or the Software by any person other than Polycade or its agents, if the infringement would not have occurred but for the modification or alteration; (iii) any content, data, information, instructions or specifications provided by Customer; (iv) the Third Party Game Content or (v) use of the Polycade Arcade Machines, Polycade Platform and/or the Software for a purpose other than that for which it was designed or in a manner not expressly permitted by the Documentation.   THIS SECTION 8.1 STATES THE ENTIRE LIABILITY OF POLYCADE WITH RESPECT TO THE INFRINGEMENT OF ANY COPYRIGHTS, PATENTS, OR OTHER INTELLECTUAL PROPERTY RIGHTS RELATED TO THE POLYCADE ARCADE MACHINES, POLYCADE PLATFORM, THE POLYCADE SUBSCRIPTION SERVICE, THE DOCUMENTATION AND/OR THE SOFTWARE OR THEIR USE.
    2. Mutual Indemnity.  Each party shall indemnify, defend and hold the other party, its Affiliates, and its and their respective officers, directors, members, managers, principals, employees, contractors and representatives harmless from and against any Claim alleging facts that, if true would, constitute gross negligence or willful misconduct by the other party or its Personnel. 
    3. Customer Indemnity.  Customer shall indemnify, defend and hold Polycade, its Affiliates, and its and their respective officers, directors, members, managers, principals, employees, contractors and representatives harmless from and against any Claim arising from the operation of any of location or property where the Polycade Arcade Machines are used.
  2. DATA.  As between the parties, Polycade shall own all personally identifiable and non-personally identifiable information and any other data submitted  or generated by users of the Polycade Platform on Customer’s Polycade Arcade Machines as well as any operational, usage and/or behavioral data collected or generated by users of the Polycade Platform in connection with the operation of Polycade Arcade Machines at Customer’s locations.
  3. CONFIDENTIALITY.  Customer (as the “receiving party”) agrees not to permit access to or to disclose any Polycade (the “disclosing party”) Confidential Information, except to the receiving party’s authorized employees and contractors who are bound by confidentiality agreements with terms no less restrictive than those of this Section 10 and who need to use or have access to the disclosing party’s Confidential Information for the purposes contemplated by this Agreement.  Receiving party shall use at least the same degree of care in protecting the disclosing party’s Confidential Information as receiving party generally exercises in protecting its own most valuable proprietary information and shall inform its employees and contractors having access to disclosing party’s Confidential Information of its confidential nature. In no event shall receiving party use less than a commercially reasonable degree of care in protecting the disclosing party’s Confidential Information.  “Confidential Information” includes documents, data, software and information which, when provided by the disclosing party to the receiving party: a) are clearly identified as “Confidential” or “Proprietary” or are marked with a similar legend; b) are disclosed orally or visually, and identified as Confidential Information at the time of disclosure and confirmed as Confidential Information in writing within ten (10) business days; or c) a reasonable person would understand to be confidential or proprietary at the time of disclosure.  The Software and Documentation, as well as results of benchmark and other tests run by either party with respect to the Polycade Arcade Machines, shall be deemed Polycade Confidential Information without any need for any markings or legends.  Notwithstanding the foregoing, the receiving party shall have no obligation of confidentiality with respect to any information which the receiving party can demonstrate by written documentation: (i) is already known to the receiving party at the time of disclosure; (ii) is or subsequently becomes publicly available through no wrongful act of the receiving party; (iii) is disclosed or provided to the receiving party by a third party without restriction and without having violated any confidentiality agreement of any party; or (iv) is developed independently by the receiving party without use of or access to the disclosing party’s Confidential Information.  In addition, receiving party may disclose Polycade Confidential Information to the extent required by law or a judicial or regulatory order; provided, however, that Customer furnishes Polycade with as much advance written notice as possible under the circumstances and cooperates with its efforts to obtain a suitable protective order.  If such an order is not obtained, or Polycade waives the non-disclosure obligation, Customer may disclose that portion of the Confidential Information which, based on the advice of counsel, is subject to the judicial, legal or regulatory disclosure requirement.  Customer shall immediately notify Polycade of any suspected unauthorized access, use, disclosure, alteration or loss of Polycade’s Confidential Information and shall cooperate with Polycade’s reasonable requests in connection with investigating and remediating any such incident.
  4. LIMITATION OF LIABILITY.  POLYCADE (OR ITS AFFILIATES,   MEMBERS, MANAGERS, SHAREHOLDERS, PRINCIPALS, OFFICERS, DIRECTORS OR PERSONNEL) WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS OR DAMAGES FOR LOSS OF DATA) ARISING IN CONNECTION WITH THESE TERMS OR THE PERFORMANCE, OMISSION OF PERFORMANCE, OR TERMINATION HEREOF WITHOUT REGARD TO THE NATURE OF THE CLAIM (E.G., BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE), EVEN IF POLYCADE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  POLYCADE’S AGGREGATE LIABILITY  TO CUSTOMER FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THESE TERMS, THE POLYCADE ARCADE MACHINES, THE POLYCADE PLATFORM, THE POLYCADE SUBSCRIPTION SERVICES, THE SOFTWARE, AND/OR THE DOCUMENTATION INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL PURCHASE PRICE FOR POLYCADE ARCADE MACHINES AND POLYCADE SUBSCRIPTION SERVICES PAID TO POLYCADE BY CUSTOMER UNDER THE AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE LATEST SUCH CLAIM, EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 
  5. GENERAL.
    1. Assignment.  The rights and obligations under these Terms may not be assigned by Customer the prior written consent of Polycade; except that Customer may, without such consent, assign these Terms and its rights and duties arising out of these Terms to an Affiliate or to the transferee, or other successor in interest, in connection with the sale or transfer of all or substantially all of its assets or business to which these Terms relates. These Terms will be binding upon and inure to the benefit of the parties and their respective heirs, permitted successors and assigns. Without limiting the generality of any of the foregoing, Polycade may also, without notice, utilize subcontractors and agents to perform aspects of the Services and its other obligations under these Terms, provided, however, that Polycade shall remain primarily responsible for compliance with its obligations under these Terms. 
    2. Governing Law.  These Terms, and all other aspects of the business relationship between the parties, shall be construed, interpreted, and enforced under and in accordance with the laws of the United States and the State of California without regard to the conflict of law provisions thereof. Each party agrees, with respect to any litigation arising directly or indirectly out of, or that in any way relates to, these Terms, it shall be adjudicated exclusively in the federal and state courts in and for Los Angeles County, California, and each party by these Terms consents to the jurisdiction and venue of these courts.
    3. Notices.   Other than as set forth in these Terms, all notices given by one party to the other under these Terms must be sent by:  (i) personal delivery; (ii) certified mail, return receipt requested; (iii) overnight mail or (iv) certified or register mail return receipt requested, to Customer at Customer’s address as set forth in each applicable Purchase Order, and to Polycade at [address].  All notices will be effective upon receipt.  A party may change its notice information set forth above by giving the other party written notice in a form consistent with this Section 12.3.
    4. Attorneys’ Fees.  In the event of an alleged breach of these Terms, the substantially prevailing party will be entitled to reimbursement of all of its out-of-pocket legal costs and expenses, including reasonable, out-of-pocket attorneys’ fees, expert witness fees, and other costs and expenses incurred in connection with such dispute, claim or litigation, including any appeal therefrom.  For purposes of this Section, the determination of which party is to be considered the substantially prevailing party will be decided by the court of competent jurisdiction or independent party (i.e., mediator or arbitrator) that resolves such dispute, claim or litigation.
    5. Export Controls.  Regardless of whether Customer is a U.S.-based entity, Customer shall not export or re-export any of the Polycade Arcade Machines or Documentation (in whole or in part) to any country without ensuring that such export complies with the Export Administration Regulations of the U.S. Department of Commerce, or any other agency of the U.S. Government, or similar laws governing the export of software or products of any other government having jurisdiction over such export, re-export, or use, pursuant to any applicable statute, regulation, or governmental order.  Customer agrees to remain at all times in full compliance with U.S. Government export policy and regulations and failure of such compliance shall constitute a material breach of these Terms.
    6. Severability.  If any provision of these Terms is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, then such provision shall be deemed modified to the extent necessary to make such provision enforceable by such court, and the invalidity in whole or in part of any portion of these Terms shall not impair or affect the validity or enforceability of the remaining provisions of these Terms.
    7. No Waiver.   No waiver of any right arising under these Terms by either party shall be effective unless in writing.  Any waiver by either party of any default, delinquency or other breach by the other party shall not be deemed to be a waiver of any other or subsequent default, delinquency or breach. 
    8. Cumulative Remedies.  All rights and remedies under these Terms are cumulative, and the exercise of any right or remedy shall be without prejudice to the right to exercise any other right or remedy provided herein, at law or in equity. 
    9. Entire Agreement.  These Terms, together with all appendices, exhibits, schedules, other attachments to these Terms and Purchase Orders, constitutes the complete and final agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions with respect to such subject matter.  No modification or rescission of these Terms shall be binding unless executed in writing by the parties. In the event of any conflict between the terms and conditions of these Terms and any Purchase Agreement, the terms and conditions of the Purchase Agreement shall prevail to the limited extent related to the subject matter of the relevant Purchase Agreement.
    10. Force Majeure.  Neither party shall liable hereunder for any failure or delay in the performance of its obligations under these Terms, except for the payment of money, if such failure or delay is on account of causes beyond its reasonable control, including labor disputes, civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, civil commotion, or acts of God, or other similar or different occurrences beyond the reasonable control of the Party so defaulting or delaying in the performance of these Terms (a “Force Majeure”), for so long as such Force Majeure is in effect.
    11. Third Party Beneficiaries.  There are no third party beneficiaries to these Terms.