Additional Terms of Use for Coaching Platform

Last Updated: December 21, 2017

These Additional Terms of Use for Coaching Platform (the “Agreement”) incorporates by reference all provisions of the standard User Agreement (the “Standard Terms”) of SMARTY CO. (the “Company” or “we”), found at http://virtualracingschool.com/terms-of-use.html. In the event of any conflict between the terms of this Agreement and the Standard Terms, the terms of this Agreement shall be controlling in all matters concerning your use of the Coaching Platform. By completing the registration process, clicking an associated “I AGREE” button, and/or using the Coaching Platform, you are indicating that you agree to be bound by all of the terms in this Agreement, as well as all of the Standard Terms (except to the extent of conflict between Standard Terms and this Agreement). You agree your use of the Coaching Platform is not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by the Company or any of its affiliates regarding future functionality or features. Unless defined otherwise herein, all capitalized terms used in this Agreement shall have the meanings ascribed to such term in the Standard Terms.

THE COACHING PLATFORM CONSISTS OF AN ONLINE PLATFORM WHICH FACILITATES THE CONNECTION BETWEEN USERS AND COACHES FEATURED ON THE COMPANY’S WEBSITES (THE “SITE”). YOU UNDERSTAND AND AGREE THAT THE COMPANY IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN USERS AND COACHES. COACHES ARE INDEPENDENT CONTRACTORS, NOT EMPLOYEES OR AGENTS OF THE COMPANY. THE COMPANY HAS NO CONTROL OVER THE COACHING SERVICES OR CONDUCT OF USERS, COACHES AND OTHER USERS OF THE COACHING PLATFORM, AND DISCLAIMS ALL LIABILITY IN THIS REGARD.

1. DESCRIPTION OF SERVICES

The Company provides an online platform that allows coaches (“Coaches”) and individuals seeking coaching with regards to improving their performance on certain racing simulation computer programs (“Students”) to connect with one another. Coaches may make their Race Data for specific cars and tracks available to Students in the form of purchasable “Data Packs.” Coaches may also offer personalized coaching and advice to Students, including but not limited to driving analysis, setup analysis, and generic questions and answers (“Coaching Sessions”). “Data Packs” and “Coaching Sessions” shall be referred to hereinafter, collectively, as “Coaching Services”. “Students” and “Coaches” shall also be referred to hereinafter, collectively, as “Users”.
The Company is not a provider of Coaching Services. The Company’s role is solely to facilitate the availability of the Coaching Platform. Similarly, the Company is not a contracting agent or representative of any Coach or Student. Coaches are independent contractors and are not employees or agents of the Company.
The Company has the right, but not the obligation, to monitor any activity and content associated with the Coaching Platform.
You are responsible for selecting the most appropriate Coach for your needs. In making your selection, you should review and investigate each Coach’s self-reported credentials and experience, as well as reviews from other Students. You waive and release the Company from any liabilities arising from or related to any act or omission of a Coach in connection with your use of the Coaching Platform.
THE COMPANY DOES NOT CONTROL THE AVAILABILITY, QUALITY, RELEVANCE OR ACCURACY OF ANY COACHING SERVICES PROVIDED BY COACHES, AND THE COMPANY DOES NOT GUARANTEE THAT ANY COACH IS QUALIFIED TO PROVIDE ANY SPECIFIC ADVICE OR COACHING, OR THAT SUCH ADVICE OR COACHING WILL BE ADEQUATE FOR YOUR NEEDS.
THE COMPANY DOES NOT CONTROL, IS NOT RESPONSIBLE FOR AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY USER OR USER CONDUCT. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTION WITH OR RELIANCE ON ANY USER OR USER CONDUCT. THE COMPANY ASSUMES NO RESPONSIBILITY FOR VERIFYING THE IDENTITY, QUALIFICATIONS, CREDENTIALS, BIOGRAPHIC INFORMATION, LICENSURE, AND/OR ANY OTHER INFORMATION REGARDING ANY OF THE USERS, ALTHOUGH IT MAY CHOOSE TO TAKE ACTION TO DO SO INDEPENDENTLY, IN ITS SOLE DISCRETION AND SOLELY FOR ITS OWN BENEFIT.

2. REGISTRATION AND ACCOUNT CREATION

In order to use the Coaching Platform, you may be required to register as a user and to provide us with personally identifiable information, including your name, country of residence, and email address, username and password (“Credentials”). Registering for the Coaching Platform is free of charge.
When you register with the Company and set up your account (“Account”), you: (i) agree to provide the Company with accurate and complete information; (ii) agree to promptly update your Account information with any new information that may affect the operation of your Account; and (iii) authorize the Company, directly or through third parties, to make any inquiries we consider necessary or appropriate to verify your Account information or the information you provide to us related to any transactions you initiate via the Coaching Platform. You will not use false identities or impersonate any other person or use a username or password that you are not authorized to use.
We handle your personally identifiable information with the utmost attention, care and security. Nonetheless, you, not us, shall be responsible for maintaining and protecting your Credentials in connection with the Coaching Platform. You are solely responsible for any activity using your Credentials, whether or not you authorized that activity. You should immediately notify us of any unauthorized use of your Credentials or if your email or password has been hacked or stolen. If you discover that someone is using your Credentials without your consent, or you discover any other breach of security, you agree to notify us immediately.
You may be asked to create a user profile (a “Profile”) in the course of registering for the Coaching Platform.
You agree that you will not permit, enable, introduce or facilitate (i) persons who do not have an Account to have access to or use the features of the Coaching Platform only made available to Users; and (ii) other Users to use specific Coaching Services through your Account, including at the same time that you are doing so.

3. PURCHASING COACHING SERVICES

Students will be required to provide valid credit or debit card information before connecting with a Coach. Students under the age of 18 must get a parent and/or guardian to provide credit/debit card information on their behalf.
When purchasing a Data Pack from a particular Coach, the cost for that Data Pack (the “Data Pack Fees”) will be specified ahead of time via the Site. Upon signing up for a Data Pack, the Data Pack Fees will be charged to the Student’s credit/debit card on file.
When purchasing a Coaching Session from a particular Coach, the cost for that Coach’s Coaching Session (the “Coaching Fee”) will be specified ahead of time via the Site. Once the Coaching Session is completed, the Coaching Fee will be charged to the Student’s credit/debit card on file.
If a Coach fails or is unable to provide a Data Pack purchased by a Student (e.g. fails to upload such Data Pack at the scheduled time), a partial refund may be issued to the Student, commensurate with the Data Pack Fee for that specific Data Pack. If a Coach does not accept a Student’s request for a Coaching Session, or otherwise fails or is unable to provide the Coaching Session, the Student’s credit/debit card will not be charged. Failure on the part of a Student to claim or use a Data Pack that he or she has signed up for will result in the forfeiture of the charged Data Packs Fees. Failure on the part of a Student to claim a Coaching Session may result in cancellation fees up to the amount of the Coaching Fee.
Students will receive an email summary within a commercially reasonable time after the Coaching Services are completed. If for some reason there is a discrepancy concerning Coaching Services provided or Coaching Fees, please contact us at info@virtualracingschool.com or at http://virtualracingschool.com/contactus.html. The Company may require you to submit additional information in order to make a determination as to whether or not to provide a refund. All decisions regarding Coaching Fees will be final and at the Company’s sole discretion. In addition to the foregoing, the Company is not responsible if your Account is accessed or used by a third party without your permission.
Paying for Coaching Services may require use of a third party online payment processor. If you are directed to the Company’s third party payment processor, you may be subject to terms and conditions governing use of that third party’s service and that third party’s personal information collection practices. Please review such terms and conditions and privacy policy before using the services. You agree to pay the applicable fees and any taxes and other fees that may accrue in relation to use of the Coaching Platform via your Account, if any.
Except as expressly provided in this Agreement, Coaching Fees are non-refundable, and you agree all purchases of Coaching Services are final.
Whenever you purchase a Data Pack, you receive a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Data Pack solely to better understand and improve your driving performance within Racing Sims. You may not use the Data Pack for any other purpose, including, without limitation, in a commercial capacity or disclosing the Data Pack to a third party, without the express consent of the Company and the Coach. Purchase of a Data Pack does not confer ownership.

4. NO RESPONSIBILITY FOR COACHING SERVICES

The Company acts as a technology service that facilitates provision of Coaching Services between Students and Coaches and does not take responsibility for the actual provision of, or otherwise exercise control or supervision over, Coaching Services or the contents thereof.
You are responsible for determining and confirming the identity and suitability of the Users interacted with as a result of your use of the Coaching Platform. We are not your agent or the agent of any User. We will not be responsible for any damage or harm resulting from your interactions with Coaches or Students. By using the Coaching Platform, you agree (i) any legal remedy or liability that you seek to obtain for actions or omissions of Coaches, Students or other third parties will be limited to a claim against the particular Coach, Student or the third parties who caused you harm; and (ii) not to attempt to impose liability on, or seek any legal remedy from the Company with respect to such actions or omissions. In addition, the Company is not responsible for the use or exchange of any information or files between Users. Furthermore, the Company does not control, nor is it responsible for, the truth, accuracy, completeness, safety, timeliness, quality, legality or applicability of anything said or written by or between Users. THE COMPANY ASSUMES NO RESPONSIBILITY FOR VERIFYING THE IDENTITY, QUALIFICATIONS, CREDENTIALS, BIOGRAPHIC INFORMATION, LICENSURE, AND/OR ANY OTHER INFORMATION REGARDING ANY OF THE USERS, ALTHOUGH IT MAY CHOOSE TO TAKE ACTION TO DO SO INDEPENDENTLY, IN ITS SOLE DISCRETION AND SOLELY FOR ITS OWN BENEFIT.
The Company is not liable for potential settlements between Users in connection with use of the Coaching Platform, nor is it liable for potential settlements with tax bodies appropriate for the Users, arising from cooperation between the Users in connection with the same. Except to the limited extent that damages or losses directly relate to Coaching Fees actually held by the Company in connection with a User’s use of the Coaching Platform, the Company is not liable for any damages and losses incurred by the Users arising from cooperation or interactions between the Users.
Notwithstanding anything to the contrary, if you ever believe that another User has violated the law or is defrauding, threatening or endangering anyone, please notify us immediately at info@virtualracingschool.com.

5. DISCLAIMER OF WARRANTY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE COACHING PLATFORM IS AT YOUR SOLE RISK AND THAT THE COACHING PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”
THE COMPANY, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE COACHING PLATFORM, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE COACHING PLATFORM WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE COACHING PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) DATA PROVIDED THROUGH THE COACHING PLATFORM WILL BE ACCURATE.
YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY DOES NOT HAVE AN OBLIGATION TO CONDUCT CRIMINAL BACKGROUND CHECKS ON OR TO INTERVIEW OR SCREEN ANY USER OF THE COACHING PLATFORM, INCLUDING, BUT NOT LIMITED TO, COACHES, BUT MAY CONDUCT SUCH CRIMINAL BACKGROUND CHECKS OR SCREENING OR INTERVIEWS IN ITS SOLE DISCRETION AND SOLELY FOR ITS OWN BENEFIT. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH COACHES AND OTHER USERS OF THE COACHING PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE COACHING PLATFORM, INCLUDING, WITHOUT LIMITATION, ANY INTERACTION WITH COACHES OR USERS VIA THE COACHING PLATFORM OR OTHERWISE. YOU UNDERSTAND THAT THE COMPANY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF COACHES, USERS AND OTHER USERS OF THE COACHING PLATFORM. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF COACHES, USERS OR OTHER USERS OF THE COACHING PLATFORM OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE COACHING PLATFORM. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE COACHING PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE COACHING PLATFORM. NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT THE COMPANY’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.

6. LIMITATION OF LIABILITY

SUBJECT TO SECTION 5 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE COMPANY, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
THE LIMITATIONS ON THE COMPANY’S LIABILITY TO YOU IN THIS SECTION SHALL APPLY WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
SOME STATES AND JURISDICTIONS MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) EXCEED THE TOTAL AMOUNT YOU HAVE PAID TO THE COMPANY FOR THE COACHING PLATFORM IN THE PAST 12 MONTHS OR THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00), WHICHEVER IS GREATER.

7. INDEMNIFICATION

You agree to hold harmless and indemnify the Company, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners from and against any third party claim arising from or in any way related to (a) your breach of the Terms, (b) your use of the Coaching Platform, or (c) your violation of applicable laws, rules or regulations in connection with the Coaching Platform, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature.

YOU ACKNOWLEDGE AND AGREE THAT, BY REGISTERING FOR, ACCESSING, INSTALLING OR USING THE COACHING PLATFORM OR SEARCHING FOR A COACH VIA THE SITE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT REGISTER FOR, ACCESS, INSTALL OR USE THE COACHING PLATFORM IN ANY WAY.