Last Updated: April 30, 2020
NOTICE: Please read these Client Terms of Service (“Terms”) carefully. If you are a CLIENT as that term is defined herein, these Terms describe your rights and responsibilities when using TRACE Equipment and Services. If you create an account on the Trace Teams Application (the “App”) or on the Trace website at www.traceup.com, the User Terms of Service (the “User Terms”) govern your access and use of the Services. A CLIENT is bound by both these Terms as well as the User Terms.
AlpineReplay, Inc. (“TRACE”) provides automatic soccer filming and video clip editing equipment and services. The online payment form (“Payment Form”) sets forth the subscription being purchased by the individual who completed the Payment Form (“YOU,” “YOUR,” and/or “CLIENT”), the cost for that subscription, and other relevant details associated with that subscription. If any individual completes a Payment Form on behalf of an entity, thereby binding that entity to this Agreement, he or she represents and warrants that he or she has the authority to do so.
These Terms are incorporated by reference into the Payment Form and govern the relationship between YOU and TRACE. All Payment Forms are subject to acceptance by TRACE, in its sole discretion. The Payment Form, the Terms, and any documents or links referenced in such documents, including but not limited to the User Terms and the Acceptable Use Policy are together referred to as the “Agreement.” The Agreement constitutes a binding contract between YOU and TRACE.
I. Equipment and Services Provided By TRACE
“Service” or “Services” shall mean the TRACE platform and related player performance data, including video clips and player-specific statistics.
“Equipment” shall mean any case(s), sensors, tripod(s), cords, battery pack(s), straps, sandbags, and/or camera(s) provided to CLIENT by TRACE.
During the Subscription Term TRACE will use commercially reasonable efforts to provide CLIENT with access to the Service. TRACE grants a non-exclusive, non-transferable, non-assignable, non-sublicensable license to use the object code version of the TRACE software only in, and as part of, the specific hardware into which it is incorporated or designated by TRACE. Any software incorporated into the Equipment is licensed only during the Subscription Term and is solely for CLIENT’s internal use in or with the Equipment provided in accordance with this Agreement.
TRACE will use commercially reasonable efforts to (a) ensure that the Equipment provided to CLIENT is in good condition and working order and (b) provide a replacement for any Equipment that is defective at any time during the Subscription Term if such defect is created through no fault of CLIENT.
If YOU purchase(d) an Elite subscription, the initial term of the Agreement shall be one (1) year and fifteen (15) days from the date CLIENT makes his or her initial subscription purchase unless CLIENT and TRACE agree otherwise, subject to early termination as provided herein (the “Elite Initial Term”). Following the Elite Initial Term, this Agreement shall automatically renew for successive renewal terms of one (1) year, subject to early termination as provided herein (each a “Renewal Term”) unless either party gives the other notice of non-renewal at least thirty (30) days prior to the end of the then current term.
If YOU purchased an Elite Trial subscription, the term of the Agreement shall be forty-five (45) days from the date CLIENT makes his or her initial subscription purchase unless CLIENT and TRACE agree otherwise, subject to early termination as provided herein (the “Trial Term”).
The Elite Initial Term and the Trial Term, if applicable, together with all Renewal Terms shall be referred to as the “Subscription Term.”
At the end of the Subscription Term, CLIENT will return the Equipment then in its possession (including the software loaded on such Equipment) to TRACE in good condition, normal wear and tear excepted, via Federal Express to 16561 Bolsa Chica St #201, Huntington Beach, CA 92649, USA. If TRACE provides CLIENT with any equipment to replace any piece of Equipment at any time, CLIENT shall immediately return the Equipment then in its possession that is being replaced. If CLIENT fails to return all Equipment within thirty (30) days of the end of the Subscription Term, or upon request by TRACE, in good condition, TRACE has the right to charge CLIENT $1,000 using any payment method provided by CLIENT to TRACE.
III. Termination; Refunds
Neither the Trial Term, the Initial Term, nor any Renewal Term can be cancelled by CLIENT before its expiration. TRACE does not provide refunds if YOU decide to stop using YOUR subscription during its applicable term. If TRACE decides, in its sole discretion, to issue a refund to any CLIENT, that refund will not be given until all Equipment is returned to TRACE via Federal Express to 16561 Bolsa Chica St #201, Huntington Beach, CA 92649, USA.
If (a) CLIENT breaches this Agreement; (b) either party dissolves or ceases doing business; and/or (c) either party commences bankruptcy proceedings, TRACE shall have the option to terminate this Agreement or suspend access to YOUR use of the Services. If TRACE terminates this Agreement, CLIENT must immediately return all Equipment provided to him or her by TRACE via Federal Express to 16561 Bolsa Chica St #201, Huntington Beach, CA 92649, USA.
TRACE will provide YOU with notice of non-payment of any amount due. Unless the full amount has been paid, TRACE may suspend YOUR access to any portion or all of the Service ten (10) days after such notice. If YOUR Service is suspended for non-payment, TRACE may charge a reactivation fee to reinstate the Service.
TRACE will maintain all files and/or data uploaded by YOU to the TRACE platform for one (1) year after YOU terminate YOUR subscription. Following the expiration of that one (1) year period, all files and/or data uploaded by YOU to the TRACE platform may be destroyed by TRACE.
In connection with CLIENT’s use of the Services and Equipment, and pursuant to TRACE’s acceptance of the Payment Form, CLIENT will pay to TRACE the applicable fees set forth in the Payment Form. TRACE reserves the right to increase its prices at any time to go into effect at the start of CLIENT’s next Renewal Term, upon providing written notice to CLIENT of such price increase.
TRACE currently sells three subscription options: Elite, Elite Trial, and Custom. The applicable subscription option will be indicated on the Payment Form. CLIENT agrees that each subscription he or she purchases will be used to Trace games for one (1) team only, unless TRACE agrees otherwise in writing.
CLIENT will pay for all amounts payable under this Agreement by credit card or by such other form of payment as TRACE may, in its sole discretion and with prior approval, permit or require.
If CLIENT purchases an Elite Subscription, fees, as identified on the Payment Form, are due on an annual basis based on the date CLIENT makes his or her initial payment, unless CLIENT and TRACE agree otherwise in writing.
TRACE will have the right to charge the credit card with which YOU make YOUR initial payment for fees in accordance with these Terms. By providing TRACE with your payment information, you agree that TRACE is authorized, to the extent permitted by applicable law, to immediately charge such payment method for all fees and charges due and payable to TRACE hereunder and that, except as required by applicable law, no additional notice or consent is required. YOU agree to immediately notify TRACE of any change in the payment information used for payment hereunder. YOU understand and acknowledge that all amounts owed must be paid in advance of Tracing a game and that if timely payment is not received, in addition to being in breach of your contractual obligations, the Service may be paused or terminated. YOU agree to pay all costs of collection, including attorney’s fees and costs and all other legal and collection expenses incurred by TRACE in connection with its enforcement of its rights under these Terms.
V. Client Representations and Warranties
CLIENT shall: (a) cooperate with TRACE in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as TRACE may reasonably request; (b) be responsible for the acts or omissions of any person who accesses the Equipment at any time before CLIENT ships the Equipment back to TRACE; (c) comply with all applicable laws and regulations, including without limitation, applicable children’s privacy laws, in connection with the use of the Equipment and/or Services or anything related thereto; (d) not modify, reverse engineer (except to the extent applicable law prohibits reverse engineering restrictions), incorporate or use in any other works, create derivatives of, or copy any portion of any software licensed to it pursuant to the terms of this Agreement; (e) handle, operate and maintain the Equipment provided by TRACE under proper conditions to preserve quality and prevent damage or other loss; (f) not make any modification, alteration or addition to any Equipment; (g) otherwise abide by the Acceptable Use Policy.
CLIENT acknowledges that Equipment and software may contain or use or be distributed alongside certain third-party software; third-party software is (in addition to the terms and conditions of this Agreement), subject to and governed by (and CLIENT agrees to) the respective licenses for that third-party software.
CLIENT represents and warrants that it has validly entered into the Agreement and has the legal power to do so.
CLIENT agrees that the transfer of any Equipment to it under the Agreement shall be a bailment and shall not constitute a sale of such Equipment.
CLIENT acknowledges that Equipment and Software may contain automated reporting routines that will automatically identify and analyze certain aspects of use and performance of the Equipment and Software, as well as the operator and operating environment (including problems and issues that arise in connection therewith), and provide reports to TRACE for further review and analysis. CLIENT agrees that TRACE is free to use for development, diagnostic and corrective purposes any data and information it so collects and may provide such data and information to its contractors or consultants for purposes of providing the Services and Equipment. Further, CLIENT agrees that TRACE may aggregate data and use such aggregated data to evaluate and improve the Services, the Equipment, and otherwise for its business purposes.
CLIENT agrees to defend, indemnify and hold TRACE, its parent companies, subsidiaries, affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) CLIENT’s use of the Equipment (including any actions taken by a third party using the Equipment); (b) CLIENT’s use of the Services (including any actions taken by a third party); and/or (c) CLIENT’s violation of this Agreement.
VII. Dispute Resolution and Arbitration
Generally. Except as provided below, any and all disputes, controversies, or claims arising out of or relating to the Services, the Agreement, or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Los Angeles County, California. The arbitrator shall apply the laws of the State of California to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees shall be awarded to the prevailing party.
Exceptions. Nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through an applicable federal, state, or local agency if that action is available; (c) seek emergency injunctive relief in a court of law; or (d) file suit in a court of law to address an intellectual property infringement claim.
No Class Actions. Each party may bring claims against the other only in its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both YOU and TRACE agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then that claim must be severed from the arbitration and brought in the State or Federal Courts located in Los Angeles County, California.
VIII. Disclaimer of Warranties
EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND EQUIPMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND TRACE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CLIENT ACKNOWLEDGES THAT TRACE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
IX. Limitation of Liability
IN NO EVENT WILL TRACE (OR ANY OF ITS AGENTS, SUBSIDIARIES, PARENT COMPANY, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES OR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF TRACE HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF TRACE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO TRACE HEREUNDER FOR THE TWELVE-MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
X. Force Majeure
Except for the payment of money, neither party to this Agreement shall be liable for any delays or non-performance directly or indirectly resulting from circumstances or causes beyond its reasonable control, including, without limitation, acts or omissions or the failure to cooperate by any third party, fire, disease, pandemic, epidemic, or other casualty, act of God, strike or labor dispute, war or other violence, or any law, order or requirement of any governmental agency or authority.
TRACE may change these Terms and the other components of the Agreement (except any Payment Forms) at any time. CLIENT can review the most current version of the Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Agreement. All modifications will become effective on the date set forth at the top of this page following the words “Last Updated:”. If CLIENT accesses or uses the Equipment or Services after that date, that use will constitute CLIENT’s acceptance of any revised terms and conditions.
Waiver. No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right. No waiver under the Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
Third Party Beneficiaries. Except as expressly set forth above, YOU and TRACE agree there are no third party beneficiaries intended under this Agreement.
Integrated Agreement. YOU and TRACE agree that this Agreement is the complete and exclusive statement of the mutual understanding between YOU and Trace, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.
Severability. The Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement will remain in effect.
Assignment. YOU may not assign any of YOUR rights or delegate YOUR obligations under the Agreement, whether by operation of law or otherwise, without the prior written consent of TRACE. TRACE may assign the Agreement in its entirety, without YOUR consent, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets.
Notice. Except as otherwise set forth herein, all notices under the Agreement will be by email, although TRACE may instead choose to provide notice to CLIENTS through the Services (e.g., an App notification). Notices to TRACE should be sent to email@example.com, except for legal notices, which must be sent to the address authorized to receive service of process listed on TRACE’s filings with the Secretary of State for the State of Delaware in accordance with the procedures mandated by applicable law. A notice will be deemed to have been duly given (a) the day after it is sent, in the case of a notice sent through email; and (b) the same day, in the case of a notice sent through the Services.
Survival. Provisions titled Equipment and Services Provided By TRACE; Term; Termination; Refunds; Fees; Client Representations and Warranties, Indemnity; Dispute Resolution; Disclaimer of Warranties; Limitation of Liability; Modifications; and Miscellaneous shall survive termination of the Agreement.