Effective January 1st, 2023.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.
BY USING THE SERVICE, CLICKING AGREE OR OTHER FORM OF ASSENT, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER, ASSOCIATION OR A THIRD PARTY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF. YOU MUST BE 18 YEARS OR OLDER TO USE THE SERVICES AND AGREE TO THESE TERMS.
This agreement is between Trace, Inc., a Delaware corporation DBA Trace (Trace), and the Customer agreeing to these terms (Customer).
SOFTWARE SERVICE AND EQUIPMENT
This agreement and as specified on an order, provides Customer and its Affiliates (defined below) access to and usage of a web-based software service for automatic sport filming, video clip editing and analysis, including, without limitation, its features, functions, and user interface, and underlying software (Service) and associated hardware (e.g., case, camera, sensors, tripods, battery packs, and accessories) (Equipment).
USE OF SERVICE.
Customer Owned Content. All content and data uploaded by Customer to the Service remains the property of Customer, as between Trace and Customer (Customer Content).
- Warranty Regarding Permissions. Customer represents and warrants to Trace that Customer has provided all required notices and has obtained all required licenses, permissions, and consents regarding Customer Content for use within the Service under this agreement.
- Customer Content Grant. During the term of an order, Customer grants Trace the right to use the Customer Content for purposes of performing under this agreement (which includes, without limitation, the right for Trace to maintain, develop and enhance its technology and offerings).
- Access to Customer Content During the Term of an Order. During the term of an order, Customer can access the Customer Content as allowed by functionality within the Service.
Trace Support. Trace must provide Customer support for the Service under the terms of Trace’s Customer Support Policy (Support), which is located at https://support.traceup.com/
Equipment Terms. Customer(i) must handle, operate and maintain the Equipment to preserve its condition and continued operability and durability; (ii) may not modify any Equipment or use any non-Trace approved third party products, services or technology; and (iii) agrees that the Equipment is owned by Trace, there is no transfer of title to Customer, the Equipment is leased to Customer under the terms of this agreement and must be returned to Customer under the terms of this agreement.
- Software. With respect to any software contained on any Equipment (Software), Trace grants Customer a non-exclusive, nontransferable license to operate the Software only on the Equipment. Customer may not remove the Software from the Equipment.
Equipment Return Policy. All Equipment must be returned to Trace under this return policy (Equipment Return Policy).
- If Customer fails to return all Equipment in accordance with the Equipment Return Policy, in good condition, Trace may charge Customer $1,000 (unless another amount is specified in the Equipment Return Policy) for each set of Equipment leased by Customer and not returned in good condition using any payment method provided by Customer to Trace (if no payment method is available then Customer agrees to pay such amount upon demand of Trace).
Customer Responsibilities. Customer: (i) must keep its passwords secure and confidential and use industry-standard password management practices; (ii) is responsible for its access control policies and administration of access rights to its account within the Service, the acts and omissions of all users in its account, and the legality and accuracy of Customer Content; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Trace promptly of any such unauthorized access; (iv) may use the Service only in accordance with the Service’s technical documentation and applicable law; (v) must comply with the Trace Acceptable Use Policy (as modified from time to time); and (vi) agrees that Trace may change the features and functions of the Service and Software over time and Trace has no liability to Customer as a result of any such changes.
Affiliates and Contractors. Customer may allow its Affiliates and contractors to use the Service, Equipment or Software, provided Customer is responsible for their compliance with the terms of this agreement. Affiliate means any company or association controlled by or under common control with, or associated with, Customer, directly or indirectly.
TRACE DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE TRACE TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, TRACE DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS AND AGREES THAT THE SERVICE MAY NOT BE ERROR-FREE AND THE USE MAY BE INTERRUPTED. TRACE IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD-PARTY SERVICE ISSUES.
Fees and Payment. Customer must pay all fees as specified on the order, but if not specified, then within 30 days of receipt of an invoice. The fees are exclusive of sales, use, withholding, VAT and other similar taxes, and Customer is responsible for payment of such taxes at the rate and in the manner for the time being prescribed by law. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement.
Nonpayment Suspension. If an invoiced amount is past due, Trace may suspend the Service and Support until the amount is paid in full.
Definition of Confidential Information. Confidential Information means all information disclosed by Trace to Customer, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Trace’s Confidential Information includes without limitation the Service and Software, and each of their parts and any non-public pricing (including without limitation the Service user interface design and layout).
Protection of Confidential Information. Customer may not disclose to unauthorized parties or use any Confidential Information of Trace for any purpose outside the scope of this agreement. Customer must limit access to Confidential Information to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Customer no less restrictive than the confidentiality terms of this agreement.
Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Trace, (ii) was known to Customer prior to its disclosure by Trace without breach of any obligation owed to Trace, (iii) is received from a third party without breach of any obligation owed to Trace, or (iv) was independently developed by Customer without use or access to the Confidential Information.
Disclosure Required by Law. Customer may disclose Confidential Information to the extent required by law or court order, but will provide Trace with advance notice to seek a protective order.
Reservation of Rights. Trace and its licensors are the sole owners of the Service and Software, including all associated intellectual property rights, and they remain only with Trace. Customer may not remove or modify any proprietary marking or restrictive legends in the Service, Software or Equipment. Trace reserves all rights that are not expressly granted in this agreement.
Restrictions. Customer may not: (i) sell, resell, rent, or lease the Service or Equipment or use it in a service-provider capacity; (ii) use the Service or Equipment to store or transmit unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit infringing material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or Equipment or its related systems or networks; (v) reverse engineer the Service or Software except as allowed by applicable law despite this limitation; or (vi) access the Service, Equipment or Software to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes. Trace may suspend Service to Customer if Trace believes in good faith that Customer’s use of the Service poses an imminent threat to the security, availability or legality of the Service, Equipment or Software; in such event, Trace will work with Customer to address the issue and restore usage as quickly as possible.
Statistical Information. Trace may compile statistical information related to the performance of the Service, Equipment and Software and may make such information publicly available, provided that such information does not identify Customer Content, and there is no means to re-identify Customer Content. Trace retains all intellectual property rights in such information.
TERM AND TERMINATION.
Term. This agreement continues until all orders have expired, unless earlier terminated as provided below.
Term of Orders. The term of each order must be specified in the order.
Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 15-day notice/cure period, if the breach has not been cured.
Return of Customer Content and Equipment.
- During the term of an order, Customer may export Customer Content as provided in Section 2(a).
- After termination of an order, Trace has no obligation to maintain the Customer Content and may destroy it and Customer must return the Equipment to Trace under the Equipment Return Policy [link].
Effect of Termination. If this agreement is terminated by Trace for Customer’s breach, Customer must pay any unpaid fees for the term of all orders.
EXCLUSION OF INDIRECT DAMAGES. TO THE MAXIMUM EXTENT ALLOWED BY LAW, TRACE IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF OR UNAUTHORIZED ACCESS TO DATA OR INFORMATION; AND LOST PROFITS, REVENUE, OR ANTICIPATED COST SAVINGS), EVEN IF IT KNOWS OF THE POSSIBILITY OR FORESEEABILITY OF SUCH DAMAGE OR LOSS.
TOTAL LIMIT ON LIABILITY. TO THE MAXIMUM EXTENT ALLOWED BY LAW, TRACE’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) DOES NOT EXCEED THE AMOUNT PAID BY CUSTOMER WITHIN THE 12-MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.
INDEMNIFICATION FOR THIRD-PARTY CLAIMS.
To the maximum extent allowed by law, if any third party brings a claim against Trace related to Customer’s use of the Service, Software or Hardware, Customer Content, or information within the Service, or any breach of this agreement by Customer, Customer must defend, indemnify, and hold Trace harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim.
GOVERNING LAW AND FORUM.
Governing Law, Forum, and Optional Arbitration. This agreement is governed by the laws of the State of California (without regard to conflicts of law principles) for any dispute between the parties arising out of or relating to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Travis County, Texas, and each party submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
Optional Arbitration for Claims Less than $20,000. Notwithstanding the foregoing, for any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $20,000, the party requesting relief may choose to resolve the dispute in a more cost-effective manner through binding non-appearance-based arbitration. If a party elects’ arbitration it is binding on the other party, and the party requesting arbitration must initiate such arbitration through an established alternative dispute resolution (ADR) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration will be conducted by telephone, online and be solely based on written submissions, the specific manner will be chosen by the party initiating the arbitration; (ii) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction. EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL PARTY BASIS, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, CLASS OR REPRESENTATIVE PROCEEDING.
Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by Trace.
No Assignment. Neither party may assign or transfer this agreement to a third party, except that the agreement and all orders may be assigned without the consent of the other party as part of a merger or sale of all or substantially all a party’s businesses, assets, not involving a competitor of the other party, or at any time to an Affiliate.
Open-Source Software Licenses. The Software may contain embedded open-source software components, which are provided as part of the Software and for which additional terms may be included in the technical documentation.
Export Compliance. The Service and Confidential Information may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Neither party will permit its personnel or representatives to access any Service in a U.S.-embargoed country or in violation of any applicable export law or regulation.
Independent Contractors. The parties are independent contractors with respect to each other, and neither party is an agent, employee, or partner of the other party or the other party’s Affiliates.
Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Neither party is liable for its non-performance due to events beyond its reasonable control, including but not limited to natural weather events and disasters, labor disruptions, and disruptions in the supply of utilities.
Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.
Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
Survival of Terms. All provisions of this agreement regarding payment, confidentiality, indemnification, limitations of liability, proprietary rights and such other provisions that by fair implication require performance beyond the term of this agreement must survive expiration or termination of this agreement until fully performed or otherwise are inapplicable. The UN Convention on Contracts for the International Sale of Goods does not apply.
Feedback. If Customer provides feedback or suggestions about the Service, then Trace (and those it allows to use its technology) may use such information without obligation to Customer.
Last Revised [January 1st, 2023]