THIS IS A “CLICK-WRAP” AGREEMENT. BY CLICKING THE “AGREE” CHECKBOX, YOU EXPRESSLY AGREE THAT ALL OF THE TERMS OF THE FOLLOWING SOFTWARE SUBSCRIPTION AGREEMENT ARE APPLICABLE AND BINDING. IF YOU DO NOT CLICK THE “AGREE” CHECKBOX, THEN WE WILL PROMPTLY CANCEL THIS TRANSACTION AND YOU WILL NOT BE ABLE TO ACCESS OR USE THE SOFTWARE.
SOFTWARE SUBSCRIPTION AGREEMENT
This Software Subscription Agreement (this “Agreement”) is made by and between Tactic Race Solutions LLC, a Delaware limited liability company (“Tactic”), and the entity accepting this Agreement (“Licensee”) with regard to Licensee’s subscription for Tactic’s “Race HQ” software infrastructure and any add-ons, upgrades or updates thereto (the “Software”). The person accepting this Agreement represents that he/she has the authority to enter into this Agreement on behalf of Licensee and that this Agreement will be binding upon Licensee.
1. FEE, TERM AND OTHER COMMERCIAL TERMS. The subscription pricing (the “Fees”), the subscription period (the “Term”) and any other commercial terms for Licensee’s subscription to the Software, including payment, required technical specifications, data storage and bandwidth usage limitations and any “Add-Ons” or other additional items related to the Software, are as set forth on www.racehq.com. Notwithstanding the foregoing, all Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Licensee shall be responsible for payment of all such taxes, levies, or duties (excluding those based on Tactic’s net income).
2. LICENSE GRANT; RESTRICTIONS. Subject to the terms, conditions and restrictions set forth in this Agreement, including payment of the Fees, Tactic hereby grants, and Licensee hereby accepts, for the Term, a non-exclusive, non-transferable limited right and license, without the right to grant sublicenses, to use solely for the purposes of its own event administration (the “Event”) (a) the Software, on a “hosted” basis accessed through a web browser over the Internet, in accordance with the Documentation (as defined below) and (b) the operating manuals, including a description of the functions performed by the Software, user instructions, technical literature and all other related materials in the English language, in both eye-readable and machine-readable printable form, that may from time to time be supplied to Licensee by Tactic to facilitate the use and application of the Software (the “Documentation”). Tactic shall retain all right, title and interest in and to the Software and its methodologies, processes, techniques, ideas, concepts, trade secrets, copyrights, know-how and all other intellectual property rights therein, as well as any modifications, improvements, enhancements, upgrades or derivative products thereof. Licensee shall not: (i) disassemble, reverse engineer, decompile or otherwise attempt to derive source code from the Software; (ii) modify, adapt, create derivative works based upon or translate the Software; (iii) copy or install the Software on to any computer systems, servers or networks; (iv) assign, re-license or sublicense the Software or its right and license to the use of the Software; (v) transfer, lease, loan, resell for profit, distribute or otherwise grant any rights in the Software in any form to any third party; or (vi) use the Software to engage in any activity deemed by Tactic to be in conflict with the purpose of the Software, reputable business practices or the spirit or intent of this Agreement. Licensee shall be solely responsible for providing and maintaining all hardware and software and other requirements for Licensee’s use of the Software (including Internet access and a compatible web browser). Licensee shall be solely responsible for (x) the account and passwords related to Licensee’s use of the Software, (y) all activity undertaken by Licensee through the Software (including ensuring that all content posted by Licensee complies with U.S. copyright law) and (z) all dealings with participants in the Event and with third party vendors Licensee is referred to through the Software. Licensee shall immediately inform Tactic of any possible misuse of Licensee’s account and passwords or any security incident related to the Software. Tactic shall use commercially reasonable efforts to create and maintain, where appropriate, firewalls, encryption technology, user authentication systems and access control mechanisms to control access to information maintained by Tactic related to Licensee’s account and passwords and the Event.
3. SERVICES. Technical support during the Term is available through the following website: http://racehq.uservoice.com (the “Support Services”). The cost of the Support Services is included in the Fees. In the event Licensee requires any additional services such as project management, custom configuration, training, custom modification, consulting, systems integration or other services (the “Add-On Services”), the terms and conditions of this Agreement shall apply to the Add-On Services; provided, however, to the extent the costs for such Add-On Services are not publicly posted on the URL mentioned in Section 1, the parties shall first agree upon the costs of such Add-On Services, and such additional costs shall be included in the definition of “Fees” for purposes of this Agreement. Licensee acknowledges that the Support Services and the Add-On Services require, and are contingent upon, Licensee’s timely notification of, and reasonable cooperation with, Tactic as may be applicable.
4. CONFIDENTIAL INFORMATION. With respect to any information supplied by the delivering party (Licensee or Tactic, as applicable) to the receiving party (Tactic or Licensee, as applicable) in connection with this Agreement and designated by the delivering party as confidential, the receiving party agrees to protect the confidentiality of such information in a reasonable manner and to use, reproduce and disclose such information only to perform its obligations under this Agreement. By way of example but without limitation, (a) Licensee shall treat the Documentation supplied by Tactic and marked “confidential” or “proprietary” as confidential information of Tactic and (b) Tactic shall treat Licensee’s event details supplied by Licensee as confidential information of Licensee. The foregoing obligation shall not apply to any such information that is: (i) publicly known through no fault of the receiving party; (ii) already known to the receiving party; (iii) disclosed to the receiving party without restriction by a third party; (iv) independently developed by the receiving party without reference to the disclosing party’s confidential information; or (v) required to be disclosed by the receiving party pursuant to legal requirement or order. As between the parties, the disclosing party shall own its confidential information.
5. OPT-IN. By accepting this Agreement, Licensee is deemed to have “opted in” to receive emails containing promotional, instructional and other information from Tactic.
6. WARRANTY. Tactic warrants that, for the Term, when properly used for the purpose and in the manner authorized by this Agreement, the Software will perform substantially in accordance with the specifications set forth in the Documentation. Licensee’s sole and exclusive remedy with respect to, and Tactic’s sole and exclusive obligation under, the foregoing warranty shall be for Tactic in Tactic’s sole discretion to: (a) correct any failure of the affected Software to perform as warranted; (b) replace the affected Software with a new copy or update; or (b) terminate this Agreement and the license granted herein and a refund of the applicable Fees paid by Licensee. Tactic does not warrant that (i) the Software will meet Licensee’s specific requirements, (ii) the Software will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the Software will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by you through the Software (either from Tactic or any third party vendor Licensee is referred to through the Software) will meet your expectations, and (v) any errors in the Software will be corrected. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SOFTWARE, THE SERVICES AND THE ADD-ON SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND LICENSEE’S USE OF THE SOFTWARE, THE SERVICES AND THE ADD-ON SERVICES IS AT ITS OWN RISK. TACTIC DOES NOT MAKE ANY OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, RELATED TO THE SOFTWARE, THE SERVICES OR THE ADD-ON SERVICES OR THIS AGREEMENT.
7. RISK ALLOCATION. Tactic’s total liability relating to this Agreement shall in no event exceed the Fees paid by Licensee or include any special, consequential, incidental or exemplary damages or loss (nor any lost profits, savings or business opportunity). Tactic specifically disclaims any liability arising from or related to the Event. Licensee acknowledges and agrees that Tactic uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Software, and that Tactic is not responsible for the performance or reliability of such third party vendors. The provisions of this Section are intended to apply in all circumstances, regardless of the grounds or nature of any claim asserted (including contract, statute, any form of negligence, whether of Licensee, Tactic or others, tort, strict liability or otherwise) and whether or not the party seeking such remedy was advised of the possibility of the damage or loss asserted, to the extent not contrary to applicable law. Any action against Tactic related to this Agreement must be brought within eighteen (18) months after the cause of action arises.
8. TERM AND TERMINATION. This Agreement shall be effective for the Term, unless earlier terminated in accordance with the following sentence. Either party may terminate this Agreement if the other party breaches any term or condition of this Agreement and fails to cure such breach within ten (10) days after receipt of written notice of the same. Any expiration or termination of this Agreement shall neither limit any party from pursuing any remedies available to it in connection with this Agreement nor relieve any party from accrued obligations hereunder (including Licensee’s obligation to pay the Fees). Sections 2 through 9, inclusive, shall survive any expiration or termination of this Agreement.
9. GENERAL. Neither party shall be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control. Whenever the words “include,” “includes” or “including” are used in this Agreement, such words shall be deemed to be followed by the words “without limitation.” This Agreement shall not be assigned or otherwise transferred by Licensee without the prior express written consent of Tactic, which consent may be withheld, conditioned or delayed by Tactic in its sole discretion. Tactic may use subcontractors to provide the Services or the Add-On Services. Tactic may use the name, logo and description of Licensee and the Event in its promotional materials to indicate Licensee’s use of the Software. Any notices given pursuant to this Agreement shall be in writing and considered given when received. Licensee shall send such notices to Tactic by regular or overnight mail or reputable express courier to Tactic, Attn: Software Subscription Agreement Notice, 1049 Camino Del Mar, Suite 7, Del Mar, CA 92014. Tactic shall send such notices to Licensee by e-mail to the address provided during registration for the Software (or, in Tactic’s sole discretion, by regular or overnight mail or reputable express courier to the address provided during registration for the Software or any other mailing address known to Tactic). Tactic may send various service communications to Licensee by e-mail to account administrators who Licensee identifies through the Software. No term of this Agreement shall be deemed waived, and no breach of this Agreement shall be deemed excused, unless the waiver or consent is in writing signed by the party granting such waiver or consent. If any term or provision of this Agreement is determined to be illegal or unenforceable, then such term or provision shall be deemed stricken and all other terms and provisions shall remain in full force and effect. This Agreement does not make either party an agent or legal representative of the other party and does not create a partnership or joint venture. Both parties are independent contractors and principals for their own accounts. The laws of the State of California shall govern this Agreement without regard to conflict of laws principles. Any cause of action to enforce this Agreement must be brought in the federal or state courts located in San Diego County in the State of California, USA, except that the foregoing choice of jurisdiction shall not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction. Tactic reserves all rights not specifically granted in this Agreement. The Software is protected by copyright and other intellectual property rights laws and international treaties. This Agreement, together with any other documents expressly referenced herein, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter, including the terms and conditions contained on any purchase order or invoice. This Agreement is a “click-wrap” agreement. This Agreement shall be deemed executed and delivered by both parties upon Licensee clicking the “accept” button for this Agreement.