TRAPDOOR, INC.
BETA AGREEMENT
This Beta Agreement (“Agreement”) is by and between TRAPDOOR TECHNOLOGIES, LLC., a Colorado corporation with an office at PO Box 4833, Boulder CO 80306 (“Trapdoor”), and you (“you”). TRAPDOOR PROVIDES THE SOFTWARE AND SERVICE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY CLICKING THE "AGREE" BUTTON YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER; AND (II) IF YOU ARE A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY AND BIND SUCH ENTITY TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT,TRAPDOOR WILL NOT AND DOES NOT GRANT YOU ANY RIGHTS TO THE SOFTWARE OR SERVICE, AND YOU MUST NOT USE THE SOFTWARE OR SERVICE. The parties have caused this Agreement to be effective as of the date you clicked “agree” (“Effective Date”) set forth above and agree as follows:
1. BACKGROUND. Trapdoor provides a proprietary software-based service (which it is developing into a commercial ready offering) that allows users to download and read content provided by Wizards of the Coast and interact with tools used in conjunction with the D&D Tabletop Roleplaying Game. You desire to use the Trapdoor Service (as defined herein) on a beta basis during the Pilot Period.
2. DEFINITIONS. Capitalized terms shall have the meanings set forth in this Section, or in the Section where they are first used.
2.1 “Connectivity Requirements” means the minimum hardware, software and connectivity configuration specified from time to time by Trapdoor as required for use of the Trapdoor Service.
2.2 “Content” means, without limitation, any and all information, data, results, ideas, plans, sketches, texts, files, links, images, photos, video, sound, inventions (whether or not patentable), notes, works of authorship, articles, feedback, or other materials.
2.3 “Documentation” means the designated user manuals, handbooks, or online materials furnished by Trapdoor that describe the features, functionality or operation of the Trapdoor System.
2.4 “User Content” means any Content provided, imported or uploaded to, or otherwise used by or on behalf of you in connection with the Trapdoor Service.
2.5 “Trapdoor Service” means the on-line tools for downloading and reading content provided by Wizards of the Coast and interacting with tools used in conjunction with the D&D Tabletop Roleplaying Game that are made available by Trapdoor through the access methods provided by Trapdoor.
2.6 “Trapdoor Software” means the proprietary software used by Trapdoor to deliver the Trapdoor Service to you in accordance with this Agreement.
2.7 “Trapdoor System” means the technology, including hardware and software as the case may be, used by Trapdoor to deliver the Trapdoor Service to you in accordance with this Agreement.
2.8 “Third Party Content” means any Content that is either (a) provided by third parties (including other customers of the Trapdoor Service) to the Trapdoor Service; or (b) made available on third party websites and linked to on the Trapdoor Service.
2.9 “Users” means you, and if you are an entity, your employees or agents who are authorized to use the Trapdoor Service on behalf of you by virtue of a UserID (defined below).
3. ACCESS TO TRAPDOOR SERVICE. Subject to the terms of this Agreement, Trapdoor hereby grants to you a limited, non-sublicensable, non-transferable, non-exclusive right during the Pilot Period to access and use the Trapdoor Service in accordance with the Documentation solely for your internal business purposes of testing and evaluating the Trapdoor Service. Except as expressly set forth herein, Trapdoor has no obligations to create or include additional features or functionality for the Trapdoor Service, or provide maintenance or support services to you. Only Users may access the Trapdoor Service. You may invite other third parties to use the Trapdoor Service during the Pilot Period, as directed by Trapdoor.
4. YOUR USE OF THE TRAPDOOR SERVICE.
4.1 Access and Security Guidelines. Each User will either select or be assigned a unique user identification name and password (“UserID”) for access to and use of the Trapdoor Service. You will ensure that each username and password issued to or created by a User will be used only by that User. You are responsible for maintaining the confidentiality of all Users’ usernames and passwords, and is solely responsible for all activities that occur under these usernames. You agree (a) not to allow a third party to use its account, usernames or passwords at any time; and (b) to notify Trapdoor promptly of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of this Agreement. Trapdoor reserves the right to terminate any username and password, which Trapdoor reasonably determines may have been used by an unauthorized third party or by any User or individual other than the User to whom such username and password was originally assigned.
4.2 Restrictions. You will not, and will not attempt to: (i) permit any party to access and/or use the Trapdoor Service, other than the Users authorized under this Agreement; (ii) rent, lease, loan, or sell access to the Trapdoor Service; (iii) interfere with, disrupt, alter, translate, or modify the Trapdoor Service or any part thereof, or create an undue burden on the Trapdoor Service or the networks or services connected to the Trapdoor Service, including without limitation, any external websites that are linked to on the Trapdoor Service; (iv) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Trapdoor System; (v) without Trapdoor’s express written permission, introduce software or automated agents or scripts to the Trapdoor Service so as to produce multiple accounts, generate automated searches, requests and queries, or to strip or mine data from the Trapdoor Service; (vi) perform or publish any performance or benchmark tests or analyses relating to the Trapdoor Service or the use thereof; or (vii) cover or obscure any page or part of the Trapdoor Service via HTML/CSS, scripting, or any other means, if any.
4.3 Evaluation. You acknowledge and agree that the Trapdoor Service to which it will have access is in beta and you agree to provide feedback to Trapdoor on the performance, features, and usability of the Trapdoor Service. You will use commercially reasonable efforts to actively use, test, analyze, and evaluate the Trapdoor Service. You will interact regularly with Trapdoor via e-mail or other means to deliver feedback regarding the Trapdoor Service, including without limitation, any flaws, error, bugs, anomalies, problems with and/or suggestions for the Trapdoor Service (the “Feedback”). You hereby assign to Trapdoor any rights you may have in and to Feedback. Trapdoor reserves the right not to commercially release the Trapdoor Service, or, if released, to modify the features, functionality and other attributes thereof. Upon mutual agreement, you will speak to the press and a limited number of potential Trapdoor customers and/or investors as a reference customer.
4.4 Support. Trapdoor has no obligation to provide any support services in connection your use of the Trapdoor Service, but may do so in its discretion. During the Pilot Period, Trapdoor may, in its sole discretion, provide you access to certain modifications, updates and/or upgrades (collectively, “Updates”) to the Trapdoor Service and associated documentation in order to improve the performance thereof. Updates will be considered to be part of the Trapdoor Service.
5. CONFIDENTIAL INFORMATION. You agree and acknowledge that the Trapdoor Service is not commercially available and information regarding the existence and functionality of the Trapdoor Service is extremely valuable to Trapdoor. You will implement reasonable security measures to maintain the confidentiality of the Trapdoor Service and any confidential information provided by Trapdoor to you. You will (a) hold all Trapdoor confidential information in confidence, (b) not disclose any confidential information of Trapdoor to any third party, and (c) will not disclose any confidential information of Trapdoor to any employee who does not have a need to know for the purposes of this Agreement.
6. CONTENT.
6.1 User Content. You represent and warrant that any User Content shall not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes able to damage the Trapdoor Service, any third party content, or other data of the Trapdoor Service; or (e) otherwise violate the rights of a third party. YOU SHOULD FREQUENTLY BACK UP ITS USER CONTENT. TRAPDOOR MAY BACK UP USER CONTENT, BUT HAS NO OBLIGATION TO DO SO. You agree that any use of the Trapdoor Service contrary to or in violation of the representations and warranties of you in this Section constitutes improper and unauthorized use of the Trapdoor Service.
6.2 Third Party Content. Trapdoor makes no representations or warranties regarding any Third Party Content found on or through the Trapdoor Service or that is otherwise available using the Trapdoor Service. You represent and warrant that any Third Party Content that it uses or has access to shall not (a) be copied, altered, or redistributed by you without the prior written consent of the owner of such Third Party Content; or (b) be used in any documents, reports, presentations or publications by you without the prior written consent and without attribution to the owner and/or author of such Third Party Content or to any other sources of such Third Party Content as may be appropriate.
7. INTELLECTUAL PROPERTY RIGHTS.
7.1 Trapdoor System and Technology. You acknowledge that Trapdoor retains all right, title and interest in and to the Trapdoor System and all software, materials, formats, interfaces, information, data, content and Trapdoor proprietary information and technology used by Trapdoor or provided to you in connection with the Trapdoor Service (the “Trapdoor Technology”), and that the Trapdoor Technology is protected by intellectual property rights owned by or licensed to Trapdoor. Other than as expressly set forth in this Agreement, no license or other rights in the Trapdoor Technology are granted to you, and all such rights are hereby expressly reserved by Trapdoor.
7.2 User Content. You retain all right, title and interest in and to the User Content. Trapdoor will only use User Content to provide the Trapdoor Service under this Agreement. You will be solely responsible for providing all User Content required for the proper operation of the Trapdoor Service. You grant to Trapdoor a non-exclusive, fully-paid and royalty-free license to store and use such User Content as necessary for Trapdoor to provide the Trapdoor Service to you and to test and enhance the Trapdoor Service.
7.3 Anonymous and Aggregated Data. Trapdoor’s privacy policy ("Privacy Policy"), a copy of which is available at
www.Trapdoor.com/privacy, is incorporated into and made a part of this Agreement. By entering into this Agreement, you expressly consent to the use and disclosure of personally identifiable and other data and information as described in the Privacy Policy. Notwithstanding anything else to the contrary in this Agreement, Trapdoor may aggregate and de-identify the information provided by you including, without limitation, User Content (“Anonymous Data”) and use the Anonymous Data without restriction for its business purposes (provided that Trapdoor does not use any specific User Content, or Anonymous Data in a manner that could identify you). In addition, Trapdoor collects information and data on how the Trapdoor Service is used by customers and reserves the right to disclose to and share such information and data with third parties in an anonymous and aggregate form at its discretion.
8. TERM AND TERMINATION. This Agreement shall commence on the Effective Date and shall remain in effect until Trapdoor informs you that the Agreement is terminated (the “Pilot Period). Termination shall be effective immediately upon notice to you. Upon expiration of the Pilot Period or termination of this Agreement, the licenses granted hereunder shall terminate effective immediately and, you shall promptly (a) discontinue use of the Trapdoor Service, and any other Trapdoor Confidential Information; (b) return, at your expense, any Trapdoor Confidential Information in your possession or control; (c) destroy all electronic copies of any Trapdoor Confidential Information; and (d) certify that you have complied with the foregoing requirements. The rights and duties of the parties under Sections 2, 4.3, 5, and 7-11will survive the termination or expiration of this Agreement.
9. DISCLAIMER. TRAPDOOR MAKES NO WARRANTY CONCERNING THE TRAPDOOR SYSTEM OR TRAPDOOR SERVICE, AND THE TRAPDOOR SERVICE, THE TRAPDOOR SYSTEM AND ALL OTHER DATA, MATERIALS, AND DOCUMENTATION PROVIDED IN CONNECTION WITH THIS AGREEMENT BY TRAPDOOR AND ITS SUPPLIERS ARE PROVIDED “AS IS” AND “AS AVAILABLE,”. TRAPDOOR AND ITS SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. TRAPDOOR DOES NOT WARRANT THAT THE TRAPDOOR SERVICE WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, COMPLETELY SECURE, OR VIRUS-FREE.
10. LIMITATION OF LIABILITY. EXCEPT FOR BREACHES OF SECTION 4.2 OR SECTION 5, (A) EACH PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY FOR ANY AND ALL CLAIMS ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT), THE TRAPDOOR SERVICE AND THE TRAPDOOR SYSTEM, WILL NOT EXCEED $200 AND (B) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT), INCLUDING, BUT NOT LIMITED TO, INTERRUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
11. GENERAL PROVISIONS
11.1 Publicity. Trapdoor and you may make public announcements of the existence of this Agreement and the relationship between the parties. All public announcements (including without limitation any reviews of the Trapdoor Service by you or your employees) by either party concerning this Agreement are subject to prior written approval by you and Trapdoor, which approval shall not be unreasonably withheld. You agree to allow Trapdoor to use your name in discussing the membership of the Trapdoor Beta Program with other entities, including potential investors.
11.2 Assignment. Neither party may assign any rights or obligations arising under this Agreement, whether by operation or law or otherwise, without the prior written consent of the other; except that either party may assign this Agreement without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. This Agreement shall inure to the benefit of and shall be binding on the permitted successors and assignees of the parties. Any attempted transfer of assignment of this Agreement in violation of this section is null and void.
11.3 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Colorado without giving effect to principles of conflict of laws that would require the application of the laws of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in a federal or state court sitting in Colorado, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. If a dispute arising under this Agreement results in litigation, the non-prevailing party shall pay the court costs and reasonable attorneys’ fees of the prevailing party.
11.4 Miscellaneous. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing to the other party at the address set forth above (each party may change its address from time to time upon written notice to the other party of the new address). Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, (b) sent via certified mail (return receipt requested) (c) sent via cable, telegram, telex, telecopier, fax (all with confirmation of receipt), or (d) sent by recognized air courier service. This Agreement is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify it. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement. This Agreement may be executed in counterparts, which taken together shall form one legal instrument. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Trapdoor, or any products utilizing such data, in violation of the United States export laws or regulations.
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