You are the “Client” under this Agreement if you are (a) an individual ordering Services; or (b) an organisation ordering Services to be used by one or more of your personnel. If you are an organisation ordering Services, the individual who agrees to this Agreement on your behalf must have the authority to bind the organisation and its End Users to this Agreement. If you are an educator ordering Services to be used by students in an educational environment, the individual who agrees to this Agreement must (1) have authority to bind the educational institution of which you are a part on its behalf, (2) agree to be bound by the Agreement on behalf of your students, (3) acknowledge that you are responsible for such students’ use of the Services, and (4) affirm that you are authorised by the jurisdiction in which you operate to consent to the Agreement on behalf of such students.
You are the “End User” under this Agreement if you are using the Service in your capacity as an end user, including as an individual Client or as an individual authorised to use the Service by an organisation who is a Client.
If we do not specify whether certain language applies to an End User or Client, then our use of “you” applies to both End Users and Clients.
BY CREATING AN ACCOUNT, SIGNING IN VIA A WEB BROWSER OR MOBILE APP OR APPLICATION PROGRAMMING INTERFACE, AND/OR USING ANY SOFTWARE AND/OR APPLICATIONS (COLLECTIVELY, “SOFTWARE”) PROVIDED TO YOU OR YOUR ORGANISATION BY OR ON BEHALF OF RACE SOFTWARE IN CONNECTION WITH YOUR USE OF THE SERVICE, YOU ACKNOWLEDGE AND AGREE THAT (1) YOU HAVE READ THIS AGREEMENT; (2) YOU UNDERSTAND IT; (3) YOU ARE BOUND BY ITS TERMS; (4) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE ORGANISATION NAMED AS THE CLIENT, AND TO BIND SUCH CLIENT TO THIS AGREEMENT; AND (5) YOU MAY RECEIVE, WITHOUT FURTHER NOTICE OR PROMPTING, UPDATED VERSIONS OF THE SOFTWARE. IF YOU DO NOT AGREE TO THE FOREGOING, YOU MAY NOT ACCESS OR USE THE SOFTWARE.
IF YOU ACCESS THE SERVICE THROUGH ANY MEANS OTHER THAN AN UNMODIFIED RACE SOFTWARE MOBILE OR WEB CLIENT, THEN IN ADDITION TO THIS AGREEMENT YOU ALSO ARE SUBJECT TO THE TERMS AND CONDITIONS OF RACE SOFTWARE’S API AGREEMENT (AS AMENDED FROM TIME TO TIME). THE API AGREEMENT IS PRESENTED TO YOU UPON INITIAL ACCESS TO THE RACE SOFTWARE DEVELOPER PORTAL.
This Agreement sets forth the terms and conditions of your use of the RACE Software and Service. Your use of, and participation in, certain aspects of the Service (e.g., purchasing or accessing an application via the RACE Software App Store) may be subject to supplemental terms (e.g., the “RACE Software App Store Terms” and the applicable Application EULA). Such supplemental terms will either be set forth at the end of this Agreement or will be presented to you in a separate document for your acceptance when you sign up to use the supplemental service. If any term of this Agreement is inconsistent with any supplemental terms, the supplemental terms shall control with respect to the aspect or aspects of the Service covered thereby.
DO NOT USE THE SERVICE UNTIL YOU HAVE CAREFULLY READ THIS AGREEMENT.
THIS AGREEMENT INCLUDES A GROUP LITIGATION WAIVER AND REQUIRES BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.
PLEASE NOTE THAT THE TERMS OF THIS AGREEMENT ARE SUBJECT TO CHANGE BY RACE SOFTWARE IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, RACE Software will make a new copy of the Agreement available on its website and/or within its application(s). In the event any new supplemental terms are created, RACE Software will make them available from within, or through, the affected aspect of the Service on our website and/or within the application(s). We will also update the “Last Updated” date at the top of this Agreement. Any such changes will be effective immediately for both new and existing Clients and End Users of the Service. RACE Software may require Clients and/or End Users to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted. Continued use of the Service constitutes acceptance of such change(s).
IF YOU HAVE ANY QUESTIONS ABOUT THIS AGREEMENT, PLEASE CONTACT: firstname.lastname@example.org
1. YOUR CONTENT
- Ownership: The Client maintains ownership of and responsibility for the following while using the Service: (1) Client’s and, as applicable, its End Users’ files, designs, models, data sets, images, documents, scripts, codes or similar material or information submitted or transmitted to, or stored or otherwise used in connection with the Service by such Client or End User, and (2) any specific output generated by the Service, if any, based on any of the foregoing (collectively, “Content”). By creating, submitting or transmitting to, posting or otherwise making your Content available to RACE Software and/or others, you acknowledge and agree that (1) you have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of your Content, (2) you will evaluate and bear all risks associated with your Content, and (3) under no circumstances will RACE Software and/or its affiliates, agents and licensors and each of their respective officers, directors, and employees be liable in any way for your Content as you transmit or otherwise use it, including but not limited to any errors or omissions.
- Availability and Security: While RACE Software will use commercially reasonable efforts to provide continuous access to its Service, and to enable the export of Content in our chosen file formats, RACE Software does not guarantee that any Content will be available or useable by Client following the termination of Client’s subscription or otherwise. Moreover, RACE Software does not guarantee the security of any Content. Client is encouraged to practice effective and secure content retention practices.
- Permissions: The Service enables the Client to specify the level at which access to and usability of Content is permitted to End Users. Client is solely responsible for establishing the appropriate level of permissions to Client’s Content.
- Legal Disclosure: RACE Software may disclose Confidential Information if it is compelled by law to do so, provided that RACE Software provides Client with prior notice of such compelled disclosure (to the extent legally permitted). Client agrees and acknowledges that RACE Software may access and disclose Client’s Content to comply with any legal obligations or governmental or regulatory body request (including subpoenas or court orders), as part of a legal proceeding involving RACE Software and/or its affiliates, agents, licensors and each of their respective officers, directors and employees, or at your request. If disclosure is made at Client’s request, Client may be responsible for the cost of compiling and providing access to such Content.
- Intellectual Property
- In your use of the Service, you agree to respect others’ intellectual property and other rights. In particular, you will not upload, submit or otherwise transmit any Content that:
- Infringes any patent, trademark, trade secret, copyright or other proprietary right of any person or entity; or
- You do not have a right to transmit under any other law or contractual or fiduciary relationship (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or other nondisclosure agreements).
- RACE Software permits you to publish your Content (in the case of End Users, subject to any privacy settings selected by Client), including in the form of a document designated for public sharing or otherwise published to the public (“Public Document”), and allows you to participate in public community forums through postings. All documents created by a Free Plan User, and all Content contained therein, is made public and therefore considered a Public Document. A “Free Plan User” is defined as a User of the free version of the Service. For the avoidance of doubt, (a) Users of free trial versions and/or users of the free education plan version of the Service are not Free Plan Users; and (b) comments made by any User of the Service in a non-Public Document are non-public Content.
- If you choose to publish a Public Document or post in the forums, other End Users (and in some cases, the general public) will be able to view, copy and transfer or save any such Content, inside or outside the Service. Any such Content, once published and/or posted, is non-confidential.
- For any Public Document owned by a Free Plan User or any Public Document without a LICENCE tab, Client grants a worldwide, royalty-free and non-exclusive licence to any End User or third party accessing the Public Document to use the intellectual property contained in Client’s Public Document without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicence, and/or sell copies of the Document, and to permit persons to whom the Document is made available to do the same.
- For any Public Document created and for any Public Document owned by any RACE Software user who is not a Free Plan User, created on any date which contained a tab called LICENCE reserving rights greater than the foregoing, those greater reserved rights will continue to apply to any proposed third party use of such Public Document.
- RACE Software shall have no liability for any damages resulting from the use or misuse by any third party of Client’s published Public Document or your postings. IF YOU CHOOSE TO MAKE A DOCUMENT OR FORUM POSTING AVAILABLE TO THE PUBLIC IN THESE WAYS OR OTHERWISE IN CONNECTION WITH YOUR USE OF THE SERVICE, YOU DO SO AT YOUR OWN RISK.
- RACE Software shall have the right to remove any Content you make publicly available that violates this Agreement or is otherwise objectionable, as determined by RACE Software in its sole discretion.
- Feedback: If you choose to provide RACE Software with ideas, suggestions, improvements, documents, proposals and/or other feedback with respect to RACE Software’s Software, Service or Documentation (as defined below) (including but not limited to problems and errors encountered in using the Service, and ideas for enhancements of the Service), we shall be free to use such materials in any manner and for any purpose (including, without limitation, incorporation into RACE Software’s products, services and advertising and marketing materials, and developing and marketing products and services) without liability or compensation to you or restriction of any kind. You hereby assign to RACE Software all right, title, and interest to all such information provided to RACE Software, and all enhancements resulting from such information, and all property rights therein including, without limitation, all patent, copyright, trade secret, trademark, moral right or other intellectual property rights.
- Regulated Data: You agree that the Content will not include:
- any information, or documents or technical data that are U.K. Government Classified, Controlled Unclassified Information, or otherwise have been determined by the United Kingdom Government or by a foreign government to require protection against unauthorised disclosure for reasons of national security; or
- any data that is “protected health information, including any medical, demographic, visual or descriptive information that can be used to identify a particular patient/individual” and/or any other data subject to the U.K. “Health Insurance Portability & Accountability Act of 1996” and regulations promulgated under that Act.
2. RIGHT TO USE SERVICE; OWNERSHIP; ACCESS TO SERVICE
- Licence: Subject to your compliance with the terms of this Agreement, RACE Software hereby grants to you a non-exclusive, non- transferable, non-sublicensable, revocable right and licence to access and use the Service you have ordered solely in accordance with the Documentation and the terms of this Agreement and any terms set forth on the order form, as applicable. Furthermore, with respect to any application accessed through the RACE Software mobile app that may be downloaded from the Apple App Store (an “Apple App Store Sourced Application”), you will only use the Apple App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
- Ownership: You acknowledge that (i) all right, title, and interest in and to the
Service, the Software, and the online or other documentation (including online videos) provided by RACE Software describing the Service and its use (the “Documentation”), and all patents, copyrights, trade secret rights, trademarks, trade names, and other proprietary rights embodied therein or associated therewith, are and shall remain with RACE Software and/or its third party licensors,; (ii) this Agreement conveys no right or interest in the Service, the Software or Documentation other than a limited right to use the Service in accordance herewith; and (iii) the Service, Software, and Documentation are protected by the copyright laws of the United Kingdom and international treaties.
- Hardware; Passwords: You are responsible for obtaining and maintaining all of the hardware, software, Internet access, and other products and services that you may need to use the Service. You are responsible for protecting and safeguarding any keys, certificates, passwords, access codes, user IDs or other login information (collectively, “Passwords”) that are provided to you or that are generated in connection with your use of the Service. You are the only person to whom the licence described in Section 2(a) extends. No End User is permitted to allow any other End User to use its Passwords to access the Service, either as a means of effecting a shared group licence or otherwise. You are fully and solely responsible for all activities that occur on the Service under your Passwords.
- Ease of access: In order to provide you with ease of access to your account and to help administer the Service, RACE Software may implement and use technology that enables us to recognise you and provide you with direct access to your account without requiring you to retype any password or other user identification when you revisit the RACE Software service.
- Testing: We continually update the Service. In addition, we continually test various aspects of the Service, including RACE Software’s website, user interfaces, service levels, plans, promotional features, delivery and pricing. We reserve the right to, and by using the RACE Software Service you agree that we may, include you in or exclude you from these tests without notice. We reserve the right in our sole and absolute discretion to make changes from time to time and without notice in how we offer and operate our Service.
- Suspension of Service: Your access to, and use of, the Service may be suspended temporarily for the duration of any scheduled maintenance or unscheduled downtime or unavailability of any portion, or all, of the Service for any reason, including as a result of power outages, system, or Internet failures or other interruptions. RACE Software also reserves the right to suspend a Client’s subscription anytime with or without notification in order to protect RACE Software and Client or End Users from what we believe to be fraudulent activity. RACE Software is not obligated to credit or discount a paid subscription for holds placed on it by either a representative of RACE Software or by our automated processes.
3. USAGE RESTRICTIONS
- Age: You must be at least thirteen (13) years old to use the Service. If you are a resident of the European Union, you must be at least thirteen (13) years old to use the Service without consent of the person or persons – a parent, guardian, or authorised teacher – who have parental responsibility for you.
- Certain Obligations: You shall not and shall not allow a third party to:
- Attempt to copy, alter, modify, adapt, translate, or create derivative works of the Software or Documentation;
- Attempt to remove or alter any proprietary notice or legends appearing in the Service, Software, or Documentation;
- Analyse the Service, Software or Documentation for purposes competitive to RACE Software, or access or otherwise use the Service, Software or Documentation in order to build a similar or competitive service offering;
- Attempt to reverse engineer, disassemble, decompile or otherwise attempt to discover the source code of the Software, or create derivative works, compilations, or collective works thereof;
- Attempt to use any component of the Software on a standalone basis;
- Attempt to export the Service, Software, or Documentation;
- Disclose or make any Password(s) available to any other person;
- Allow unauthorised access to, or use of, the Service;
- Use any robot, spider, scraper or other automated means to access the
Service, or use any data mining, data gathering or extraction method;
- Upload, post, email or otherwise send or transmit any material, including any software viruses or other computer code, files or programs, designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment associated with the Service;
- Use the Service or Software in any unauthorised or inappropriate way whatsoever, as determined in RACE Software’s reasonable judgment, including but not limited to, by trespass or burdening network capacity;
- Use the Service in any manner to, in RACE Software’s sole judgment, harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other part; and
- Post for public viewing Content that violates or encourages any conduct that would violate any applicable law or regulation or would give rise to civil liability, or that is in RACE Software’s sole judgment defamatory, vulgar, obscene, libellous, objectionable or inappropriate, or likely to promote illegal, harmful or objectionable activities.
- Trial or Free Versions. Trial and free versions of the Service are made available by RACE Software. Trial versions of the Service are intended for evaluation purposes, and may be used for commercial or non-commercial purposes during the evaluation period. Free versions of the Service are intended to support (a) creating and editing intellectual property for non-commercial purposes, and (b) viewing, commenting and import/export for commercial or non-commercial purposes (to the extent the plan offers those features). If you intend to use the Service outside a trial context to create and/or edit intellectual property for commercial purposes (including but not limited to developing designs that are intended to be commercialized and/or used in support of a commercial business), then you agree to upgrade to a paid subscription to the Service. Trial and free versions of the Service are otherwise subject to the terms of this Agreement.
- Monitoring and Investigations: RACE Software may, but is not obligated to, monitor or review Public Documents and/or posts to RACE Software’s community forum, social media platforms, online platforms. Without limiting the foregoing, RACE Software shall have the right to remove any of your publicly accessible Content or forum posts that violate this Agreement, with or without prior notice to you. If RACE Software becomes aware of any possible violations by you of any provision of this Agreement, RACE Software reserves the right to investigate such violations and may, at its sole discretion, suspend or terminate your licence to use RACE Software, with or without prior notice to you.
- Ongoing Nature of Subscription: Client’s paid RACE Software subscription will automatically continue (e.g., year-to-year in the case of an annual paid subscription), unless and until either Client or RACE Software provides the other with at least sixty (60) days’ written notice (prior to the end of the then-current subscription term) of such party’s intent not to renew its subscription. You must have Internet access to access and use the Service, and Client must provide us with a current, valid accepted method of payment (as it may be updated from time to time, “Payment Method”) in order to purchase and use a paid subscription.
- Differing Subscriptions: RACE Software may offer a number of subscription plans, including special promotional plans or subscriptions with differing conditions and limitations. The terms of your subscription will be disclosed at the time you sign up or in other communications made available to you. You can find specific details regarding your subscription within your account profile at racesoftware We reserve the right to modify, terminate or otherwise amend our subscription plans at any time, in our sole and absolute discretion.
- Recurring Billing: By starting a paid RACE Software subscription and providing or designating a Payment Method, Client authorises us to charge Client a subscription fee at the then current rate, and any other charges Client may incur (either directly or through its End Users) in connection with Client’s and its End Users’ use of the RACE Software Service, to Client’s
Payment Method. Client acknowledges that the amount billed each period may vary for reasons that may include promotional offers, and/or changing a plan, and Client authorises us to charge Client’s Payment Method for such varying amounts, which may be billed in one or more charges.
- Price Changes: We reserve the right to adjust pricing for the RACE Software Service or any components thereof in any manner and at any time as we may determine in our sole and absolute discretion. Any price changes to Client’s service will take effect following notice to you provided via email or notification within RACE Software’s Service.
- Billing Cycle: The subscription fee for the RACE Software Service will be billed at the beginning of Client’s paid subscription period and each anniversary date thereafter, except as provided below under “Group Subscriptions,” unless and until Client cancels its subscription. After Client’s initial subscription period, and again after any subsequent subscription period, Client’s subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at RACE Software’s then-current price for such subscription. Client agrees that its Payment Method will be subject to this automatic renewal feature unless Client cancels its subscription at least thirty (30) days prior to the Renewal Commencement Date. By subscribing, Client authorises Company to charge Client’s Payment Method now, and again at the beginning of any subsequent subscription period. We reserve the right to change the timing of our billing as indicated below, if Client’s Payment Method has not successfully settled. We may authorise your Payment Method in anticipation of subscription or other charges.
- Group Subscription Billing Cycle: If Client accepts billing and payment responsibility on behalf of additional new End Users added pursuant to one or more purchase orders (a “Group Subscription”), such End User’s default billing cycle will begin on the date of provisioning. This may cause the initial charge related to a new End User to be prorated (for example, if a new subscription that otherwise would have been for one year is purchased six months into Client’s own one-year subscription, the new End User’s subscription may be prorated, resulting in a six-month term). Alternatively, Client and RACE Software may agree to extend the then-current subscription term at the time one or more new End Users are added to Client’s subscription, in which case the anniversary of the initial subscription date no longer will serve as the billing date for renewal periods.
- Refunds and Credits: PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO
REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. However, following the cancellation of any paid subscription, Client and its End Users, as applicable, will continue to have access to RACE Software’s paid Service through the end of Client’s current billing cycle. At any time, and for any reason, we may provide a refund, discount, or other consideration to any or all of our Clients (“credits”). The amount and form of such credits, and the decision to provide them, are at RACE Software’s sole and absolute discretion. The provision of credits in one instance does not entitle Client to credits in the future for similar instances, nor does it obligate us to provide credits in the future, under any circumstances.
- Taxes: Client shall be responsible for paying all applicable sales, use, transfer, or other taxes and all duties, whether national, state, or local, however designated, that are levied or imposed by reason of Client’s paid use of the Service under this Agreement, excluding income taxes on the net profits of RACE Software. Client shall reimburse RACE Software for the amount of any such taxes or duties paid or incurred directly by RACE Software as a result of such paid use, and Client agrees that RACE Software may charge any such reimbursable taxes to Client’s Payment Method.
Payment Methods: Client may edit Client’s Payment Method information under certain circumstances by signing in to Client’s account at race.software and clicking on “Manage account” in the dropdown menu under Client’s user name. Alternatively, Client can contact Client support for assistance in editing Payment Method information. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and Client does not edit the Payment Method information or downgrade or cancel Client’s subscription, Client remains responsible for any uncollected amounts and authorise us to continue billing the Payment Method, as it may be updated. This may result in a change to Client’s payment billing dates. For certain Payment Methods, the issuer of Client’s Payment Method may charge you a foreign transaction fee or other charges, which is your financial responsibility. Client should check with its Payment Method service provider for details.
RACE Software will, as part of the Service, provide such support with respect to the Service as RACE Software deems appropriate.
You agree to indemnify and hold RACE Software, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “RACE Software Parties”) harmless from any losses, costs, liabilities and expenses ( including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) relating to or arising out of: (a) your Content; (b) your use of, or inability to use, the Service or any other RACE Software user’s Content; (c) your violation of this Agreement; (d) your violation of any rights of another party, including any users; or (e) your violation of any applicable laws, rules or regulations. RACE Software reserves the right, at its own cost, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with RACE Software in asserting any available defences. You agree that the provisions in this section will survive any termination of your subscription, this Agreement, or your access to the Service.
8. DISCLAIMER OF WARRANTIES
The Service is provided on an “as is” and “as available” basis, without warranty of any kind. RACE SOFTWARE SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Without limiting the foregoing, RACE Software does not warrant that (i) the Service will meet your requirements; or (ii) the Service will operate without interruption or be error free. Furthermore, RACE Software is not responsible for delays, delivery failures, or any other unavailability, loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet. It is acknowledged that the Service may be subject to limitations, delays, and other problems inherent in the use of the Internet, servers that are hosted by third party providers, and such related network and communications infrastructure.
9. LIMITATION OF LIABILITY
YOU RECOGNISE THAT THE PRICE PAID FOR THE RIGHTS GRANTED TO YOU HEREIN MAY BE SUBSTANTIALLY DISPROPORTIONATE TO THE VALUE OF THE PRODUCTS TO BE DESIGNED, STORED, MANAGED OR DISTRIBUTED IN CONJUNCTION WITH THE SOFTWARE AND SERVICE. FOR THE EXPRESS PURPOSE OF LIMITING THE LIABILITY OF RACE SOFTWARE AND ITS LICENSORS TO AN EXTENT WHICH IS REASONABLY PROPORTIONATE TO THE COMMERCIAL VALUE OF THIS TRANSACTION, YOU AGREE TO THE FOLLOWING LIMITATIONS ON RACE SOFTWARE’S AND ITS LICENSORS’ LIABILITY.
TO THE EXTENT ALLOWED BY LAW, RACE SOFTWARE’S LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE SERVICE, SOFTWARE OR DOCUMENTATION FURNISHED HEREUNDER SHALL NOT EXCEED THE GREATER OF TWO HUNDRED AND TWENTY FIVE POUND STERLING (£225.00) OR THE AMOUNT YOU HAVE PAID RACE SOFTWARE IN THE PAST 1 MONTH. IN NO EVENT SHALL RACE SOFTWARE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, COVER, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING LOSS OF DATA OR PROFITS, WHETHER OR NOT RACE SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT SUCH LIMITATIONS ARE FAIR AND REASONABLE IN LIGHT OF THE TERMS UNDER WHICH THE SERVICE IS BEING MADE AVAILABLE TO YOU. THIS LIMITATION WILL APPLY EVEN IF ANY REMEDY STATED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. RACE SOFTWARE’S THIRD PARTY LICENSORS SHALL HAVE NO LIABILITY TO YOU WHATSOEVER. RACE SOFTWARE IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION OR DATA OF THIRD PARTIES (INCLUDING, WITHOUT LIMITATION, OTHER USERS), AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. CERTAIN OF THE ABOVE LIMITATIONS MAY NOT APPLY IN SOME JURISDICTIONS, AND IN SUCH CASES RACE SOFTWARE’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT DESCRIBED ABOVE THAT IS PERMITTED BY APPLICABLE LAW.
10. TERM AND TERMINATION; EFFECT OF TERMINATION; SURVIVAL
- Term: This Agreement commences on the date you accept it (as described in the preamble above) and will remain in effect until terminated in accordance with this Agreement. Notwithstanding the foregoing, if you used the Service or the Software prior to the date you accepted this Agreement, you hereby acknowledge and agree that this Agreement commenced on the date you first used the Service or the Software.
- Termination by RACE Software: RACE Software shall be entitled to suspend, terminate, or limit your access to the Service at any time, with or without notice, if you breach any term of this Agreement, or if you facilitate or encourage any violation of this Agreement. Upon termination of this Agreement, you shall make no further use of the Service. Termination of this Agreement shall not affect any obligations accrued prior thereto. You understand that any termination of the Service by RACE Software may involve deletion of your Content associated therewith. RACE Software will not have any liability whatsoever to you for any suspension or termination, including for deletion of your Content.
- Termination by Client: If Client wants to terminate this Agreement by cancelling Client’s subscription, Client may do so by notifying RACE Software at any time (subject, as applicable, to the notice requirements described previously in this Agreement); provided, however, no refund will be due. If Client cancels its subscription, we have the right to permanently delete all Content in Client’s account; and we also have the right but not the obligation to maintain Content that Client or any End User has not permanently deleted prior to Client’s cancellation. Client is responsible for exporting any Content, if Client so chooses, prior to cancelling its subscription. If Client permanently deletes such Content, it may persist in backup copies for a reasonable period of time thereafter in accordance with RACE Software’s data management policies and practices (but will not be available to others).
- Effect of Termination: Termination of the Service includes removal of access to the Service and barring your further use of the Service. Termination of Service also includes deletion of your Password and all related profile information.
- Survival: All provisions of this Agreement which by their nature should survive, shall survive termination of the Service, including without limitation warranty disclaimers and limitation of liability.
11. COPYRIGHT INFRINGEMENT
RACE Software will in appropriate circumstances suspend or terminate the use of the Service by, or remove or disable access to the relevant public content of, users involved in copyright disputes. If you believe that your work has been copied in a way that constitutes copyright infringement in the United Kingdom, please notify RACE Software of your claim of infringement by sending the following written information to our registered office, designated as such pursuant to the Data Protection Act 1998 (DPA) named below:
- A physical or electronic signature of the person authorised to act on behalf of the owner of the copyright interest that is alleged to have been infringed.
- A description of the copyrighted work or works that you claim have been infringed.
- A description of the material you believe to be infringing, in a sufficiently precise manner to allow us to locate that material.
- Information sufficient to permit RACE Software to contact you, such as your physical address, telephone number, and email address.
- A statement that you have a good faith belief that the use of the copyrighted material is not authorised by the copyright owner, its agent, or the law.
- A statement that the information in the written notice is accurate.
- A statement, under penalty of perjury, that you are the copyright owner or authorised to act on the copyright owner’s behalf.
- We will respond to notices of claimed copyright infringement in accordance with the DPA. We reserve the right, in the case of an allegedly infringing Public Document, to make such document private while we investigate.
- For DPA notices please inform RACE Software via e-mail email@example.com and a representative will be in touch with you
12. ARBITRATION AGREEMENT; GROUP LITIGATIONWAIVER; WAIVER OF TRIAL BY JURY.
Please read this Section (“Arbitration Agreement”) carefully. It is part of your contract with RACE Software and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A GROUP LITIGATION WAIVER.
- Applicability of Arbitration Agreement: All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement or the use of any product or service provided by RACE Software that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and RACE Software, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorised or unauthorised users or beneficiaries of services or goods provided under this Agreement.
- Notice Requirement and Informal Dispute Resolution: Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to RACE Software should be sent first to firstname.lastname@example.org Attention: Legal Department. After the Notice is received, you and RACE Software may attempt to resolve the claim or dispute informally. If you and RACE Software do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
- Arbitration Rules: Arbitration shall be initiated through the London Court of International Arbitration (LCIA), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If LCIA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with this Agreement. The LCIA Consumer Arbitration Rules governing the arbitration are available online at https://www.lcia.org/Dispute_Resolution_Services/lcia-arbitration-rules-2020.aspx or by calling the LCIA at +44 (0) 20 7936 6200. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than TEN THOUSAND PONUND STERLING (£10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is TEN THOUSAND POUND STERLING (£10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within one hundred (100) miles of your residence, unless you reside outside of the United Kingdom, and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Additional Rules for Non-appearance Based Arbitration: If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
- Authority of Arbitrator: If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and RACE Software, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the LCIA Rules, and this Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and RACE Software.
- Waiver of Jury Trial: THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW THEIR STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, AND APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY. [EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) IT HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) IT MAKES THIS WAIVER KNOWINGLY AND VOLUNTARILY, AND (D) IT HAS DECIDED TO ENTER INTO THIS AGREEMENT IN CONSIDERATION OF, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
The Parties hereby agrees that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and RACE Software in any court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND RACE SOFTWARE WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Waiver of Group or Consolidated Actions: ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN
INDIVIDUAL BASIS AND NOT ON A GROUP BASIS, AND CLAIMS OF MORE THAN ONE CLIENT OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CLIENT OR USER.
- Severability: If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- Right to Waive: Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Survival of Agreement: This Arbitration Agreement will survive the termination of your relationship with RACE Software.
- Emergency Equitable Relief: Notwithstanding the foregoing, either party may seek emergency equitable relief before a court of law in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
- Courts: In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in England and Wales, for such purpose.
- Publicity: RACE Software has the right to reference Client and any End User in any materials, presentations, or media advertising or promote RACE Software (including RACE Software’s website) as a Service Client.
- Governing Law: This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- Compliance with Laws; Export Control: You agree to comply with all laws and regulations relating to your use of the Service, including without limitation those relating to export and import, privacy, and personal data protection. RACE Software’s obligation to fulfil this Agreement is subject to the proviso that it is not prevented by any impediments arising out of national and international foreign trade or customs requirements, including embargoes or other sanctions. This Agreement is subject to all United Kingdom government laws and regulations as may be enacted, amended or modified from time to time regarding the export from the United Kingdom of RACE Software, services, technology, or any derivatives thereof. In the event that RACE Software approves your export of any of the foregoing, you will only export or reexport any of the software, services, or technology provided pursuant to this Agreement, or any derivatives thereof or permit the shipment of same after obtaining at your expense any required prior authorisation from the Secretary of State for Business, Innovation and Skills or other applicable authorities as may be required by law. Without limiting the foregoing, by using the RACE Software Service, you represent and warrant that (i) you are not located in a country that is subject to a U.K. Government embargo, or that has been designated by the U.K. Government as a “terrorist supporting” country and (ii) you are not listed on any U.K. Government list of prohibited or restricted parties. The provisions of this Section 14(c) will survive the expiration or termination of this Agreement for any reason.
- Communications and Notice: By using the RACE Software Service, you consent to receiving certain electronic communications from RACE Software relating to your subscription. These communications may involve sending emails to your email address provided during registration, or posting communications within the RACE Software service; will include notices about your account (e.g., payment authorisations, change in password or payment method, confirmation emails and other transactional information); and are part of your relationship with RACE Software. You agree that any notices, agreements, disclosures or other communications that RACE Software sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing. In the event that the last email address you provided to RACE Software is not valid, or for any reason is not capable of delivering to you any notices required or permitted by the Agreement, RACE Software’s dispatch of the email containing such notice will nonetheless constitute effective notice. You should maintain copies of electronic communications by printing a paper copy or saving an electronic copy. Unless you opt out, you also consent to receive certain other communications from us, such as notifications of new RACE Software features, promotional announcements and Client surveys via email. If you want to unsubscribe (i.e., opt out) from certain non-transactional email communications, you will have the opportunity to do so.
- Assignment: This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. You may not assign or otherwise transfer this Agreement or any of your rights or obligations hereunder without the prior written consent of RACE Software.
- Force Majeure: RACE Software shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, civil or military commotion, fire, floods, accidents, epidemics or pandemics, strikes or shortages of transportation facilities, fuel, energy, labour or materials, compliance with any law or governmental order, regulation or direction, accident, breakdown of plant or machinery, storm, or default of suppliers or subcontractors..
- Severability: If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of the Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Waiver: Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Entire Agreement: This Agreement constitutes the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
Effective Date: 15 January 2021