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 User agreeing to these terms (User).

SOFTWARE SERVICE AND EQUIPMENT.

User is being provided access to, as invited by customer of Trace under an account (Account Holder), a web-based software service for automatic sport filming, video clip editing and analysis (Service) and in certain situation, associated hardware (e.g., case, camera, sensors, tripods, battery packs, and accessories, as applicable) (Equipment). 

USE OF SERVICE.

User Content. 

Anything a User posts, uploads, shares, stores, or otherwise provides through the Services is your User Content.

• For all User Content, User grant Trace a license to translate, modify, reproduce, distribute, prepare derivative works of, display, perform and otherwise fully exploit such User Content (including all related intellectual property rights) in connection with the Services and Trace’s business. This is a license only – User’s ownership in User Contents is not affected. 
• User agrees that the licenses User grants are royalty-free, perpetual, sublicensable, irrevocable, and worldwide, provided that when you delete your account or otherwise request Trace to do so, Trace will stop displaying your User Content, but you understand and agree that it may not be possible to completely delete that content from Trace’s records, and that your User Contents may remain viewable elsewhere to the extent that they were copied or stored by other users or modified or included in any derivative works made by us. 
• User understands and agree that Trace, in performing the required technical steps to provide the Services to its user (including you), may need to make changes to your User Content to conform and adapt those User Content to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so. 

User Responsibilities. User: (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 User 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 User as a result of any such changes.

DISCLAIMER.

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. USER 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.

CONFIDENTIALITY.

Definition of Confidential Information. Confidential Information means all information disclosed by Trace to User, 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. User may not disclose to unauthorized parties or use any Confidential Information of Trace for any purpose outside the scope of this agreement. User must limit access to Confidential Information to those of individuals who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with User 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 User 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 User without use or access to the Confidential Information.

Disclosure Required by Law. User 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.

PROPERTY.

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. User 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. User 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 User if Trace believes in good faith that User’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 User 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 User Content, and there is no means to re-identify User Content. Trace retains all intellectual property rights in such information.

TERM.

Term. This agreement continues until the earlier of Account Holder terminates User’s account or Trace terminates User’s account. If either party is in material breach of this Agreement, this Agreement will terminate at the end of a written 15-day notice period, if the breach has not been cured during such time period. 

LIABILITY LIMIT.

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 GREATER OF AMOUNT PAID BY USER WITHIN THE 12-MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY OR $100. 

INDEMNIFICATION FOR THIRD-PARTY CLAIMS.

To the maximum extent allowed by law, if any third party brings a claim against Trace related to User’s use of the Service, Software or Hardware, User Content, or information within the Service, or any breach of this agreement by User, User 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.

OTHER TERMS.

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. User 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 by Trace without consent of User as part of a merger or sale of all or substantially all of its businesses, assets. 

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 User provides feedback or suggestions about the Service, then Trace (and those it allows to use its technology) may use such information without obligation to User.

Last Revised [August 16th, 2023]