Last Updated: April 30, 2020
NOTICE: Please read these User Terms of Service (“User Terms”) carefully. If you create an account on the Trace Teams Application (the “App”) or on the Trace website at www.traceup.com (the “Website”), these User Terms govern your access and use of the Services (the “Service” or “Services” means the TRACE platform and related player performance data, including video clips and player-specific statistics).
Each person who creates an account on the App or on the Website, including you, is a “USER”. Any person or entity who completes a Payment Form thereby purchasing a subscription to the Trace platform (a “CLIENT”) is bound by both these User Terms as well as the Client Terms of Service (“Terms”).
These User Terms are a legally binding contract between you and AlpineReplay, Inc. (“TRACE”). As part of these User Terms, you agree to comply with the most recent version of our Acceptable Use Policy (the “Acceptable Use Policy”), which is incorporated by reference into these User Terms. If you access or use the Services, or continue accessing or using the Services after being notified of a change to the User Terms or the Acceptable Use Policy, you confirm that you have read, understand and agree to be bound by the User Terms and the Acceptable Use Policy.
To the extent prohibited by applicable law, the Services should not be used by anyone under the age of thirteen. You represent that you are over the legal age. You may not access or use the Services for any purpose if the representation in the preceding sentence is not true.
To help ensure a safe and productive work environment, all USERS must comply with our Acceptable Use Policy.
These User Terms remain effective until your access to the Services has been terminated by you or TRACE. Please contact TRACE if you, at any time or for any reason, wish to terminate your account. Additionally, please note that termination of your account may result in destruction of any content associated with your account. TRACE may (but is not obligated to) provide advance notice to you prior to its terminating your account.
USER acknowledges that software used by you and/or TRACE during your use of the Service may contain automated reporting routines that will automatically identify and analyze certain aspects of use and performance of TRACE 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. 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. Further, TRACE may aggregate data and use such aggregated data to evaluate and improve the Services and otherwise for its business purposes.
I. Limitation of Liability
If TRACE believes that there is a violation of the User Terms, the Acceptable Use Policy, or any of its other policies that can simply be remedied by USER’s removal of certain data or taking other action, TRACE will, in most cases, ask USER to take action. TRACE may directly step in and take what it determines to be appropriate action (including disabling your account) if it believes there is a credible risk of harm to TRACE, the Services, other Users, or any third parties. 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 SERVICES, THE DELAY OR INABILITY TO USE ANYTHING PROVIDED IN CONNECTION WITH THE SERVICES 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. UNLESS YOU ARE ALSO A CLIENT (AND WITHOUT LIMITATION TO OUR RIGHTS AND REMEDIES UNDER THE AGREEMENT), YOU WILL HAVE NO FINANCIAL LIABILITY TO US FOR A BREACH OF THESE USER TERMS. OUR MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY BREACH OF THE USER TERMS IS ONE HUNDRED DOLLARS ($100) IN THE AGGREGATE. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW AND DO NOT LIMIT EITHER PARTY’S RIGHT TO SEEK AND OBTAIN EQUITABLE RELIEF.
II. Disclaimer of Warranties
EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES 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.
USER 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) USER’s use of the Services (including any actions taken by a third party); and/or (b) USER’s violation of the User Terms.
IV. User Submissions
Anything you post, upload, share, store, or otherwise provide through the Services is your “User Submission.”
For all User Submissions, you grant TRACE a license to translate, modify, reproduce, distribute, prepare derivative works of, display, perform and otherwise fully exploit such User Submissions (including all related intellectual property rights) in connection with the Services and TRACE’s business. This is a license only – your ownership in User Submissions is not affected.
You agree that the licenses you grant 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 Submissions, but you understand and agree that it may not be possible to completely delete that content from TRACE’s records, and that your User Submissions 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.
You understand and agree that TRACE, in performing the required technical steps to provide the Services to its USERS (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
Any TRACE equipment or software used to upload images, data, and/or video of you to the TRACE platform must be leased by someone with an active TRACE subscription (the “Account Holder”). TRACE will maintain all (1) of your User Submissions; (2) images and/or videos of you; and (3) data related to you for ninety (90) days after the date that the Account Holder terminates his or her subscription with TRACE. Following the expiration of that ninety (90) day period, all of your User Submissions; images and/or videos of you; and data related to you may be destroyed by TRACE.
V. Third Parties
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that TRACE shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
TRACE has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Services. In addition, TRACE will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third party website or service.
VI. Terms Applicable To The App
These User Terms apply to your use of all the Services, including the App available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the App:
(a) Both you and TRACE acknowledge that the User Terms are concluded between you and TRACE only, and not with Apple, and that Apple is not responsible for the App or its content; (b) The App is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your use, subject to all the terms and conditions of these User Terms as they are applicable to the Services; (c) You will only use the App in connection with an Apple device that you own or control; (d) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App; (e) In the event of any failure of the App to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the App; (f) You acknowledge and agree that TRACE, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the App; (g) You acknowledge and agree that, in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, TRACE, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim; (h) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties; (i) Both you and TRACE acknowledge and agree that, in your use of the App, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and (j) Both you and TRACE acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these User Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these User Terms against you as the third party beneficiary hereof.
VII. Force Majeure
Except for the payment of money, neither you nor TRACE 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, rain, snow, 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.
VIII. 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 User 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.
Waiver. No failure or delay by either party in exercising any right under the User Terms, including the Acceptable Use Policy, will constitute a waiver of that right. No waiver under the User Terms will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
Severability. The User Terms, including the Acceptable Use Policy, will be enforced to the fullest extent permitted under applicable law. If any provision of the User Terms 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 User Terms will remain in effect.
Assignment. You may not assign any of your rights or delegate your obligations under these User Terms, including the Acceptable Use Policy, whether by operation of law or otherwise, without the prior written consent of TRACE. TRACE may assign these User Terms in their entirety (including all terms and conditions incorporated herein by reference), 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 User Terms will be by email, although TRACE may instead choose to provide notice to USERS 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 entity 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. The totality of the foregoing terms will survive any termination or expiration of the User Terms.