Last Updated: December 21, 2017
THIS USER AGREEMENT (this “Agreement”) is between you and Smarty Co. (“SMARTY CO.” or “We”) and governs your use of SMARTY CO.’s software, documentation, and related services, including the services made available on SMARTY CO.’s websites at http://virtualracingschool.com and http://virtualracingschool.appspot.com (all of which are referred to herein as the “Software”).
BY REGISTERING FOR, ACCESSING, INSTALLING OR USING THE SOFTWARE, INCLUDING ANY UPDATED OR CUSTOMIZED VERSIONS OF THE SOFTWARE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT REGISTER FOR, ACCESS, INSTALL OR USE THE SOFTWARE.
The Software is intended for use by private individuals only, not for use by or on behalf of businesses or organizations. If you are or if you represent a business or organization and wish to register for, access, install or use the Software in any way, you must contact SMARTY CO. directly at email@example.com to discuss separate pricing and licensing terms.
You must be over 13 years of age to use the Software, and children under the age of 13 may not use the Software in any way. If you are over 13 years of age but are not yet of legal age to form a binding contract (in many jurisdictions, this age is 18), then your parent or guardian must read this Agreement and agree to the terms on your behalf before you may use the Software. If you are a parent or guardian and you consent to your child’s use of the Software, then you agree to be bound by the terms of this Agreement with respect of your child’s use of the Software.
- Description of Software. The Software consists of an add-on software application (the “Application”) intended to be run in conjunction with certain racing simulation computer programs (“Racing Sims”), and a suite of associated software and services (the “Associated Software”) designed to provide you with in-depth analysis and feedback on your driving performance. The Application runs in the background while you are using the Racing Sim, gathering data on your driving performance (“Race Data”). This Race Data is then uploaded to SMARTY CO.’s servers, where it is analyzed and used to provide you with detailed feedback regarding your driving performance via the Associated Software.
- License. SMARTY CO. gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Software to utilize the Software to better understand and improve your driving performance within Racing Sims. You may not use the Software for any other purpose, including, without limitation, in a commercial capacity, without the express written consent of SMARTY CO. You acknowledge and agree that SMARTY CO. (or SMARTY CO.’s licensors) own all legal right, title and interest in and to the Software, including any intellectual property rights which subsist in the Software (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
Other users of the Service may also be able to create, transmit, publish or display their own Content and Race Data through use of the Services. Such Content and Race Data is collectively referred to hereafter as “User Content.”
Any User Content publicly posted or privately transmitted to or via the Software is the sole responsibility of the user transmitting it. This means that the individual user, and not SMARTY CO., is entirely responsible for all User Content uploaded, posted, emailed, transmitted or otherwise made available by using the Software, as well as for his or her conduct generally while using the Software. We do not control or actively monitor User Content and, as such, do not guarantee the accuracy, integrity or quality of such content. You acknowledge that by using the Software, you may be exposed to materials that are offensive, indecent or objectionable.
Under no circumstances will SMARTY CO. be liable in any way for any Race Data or Content, including, but not limited to, for any errors or omissions in any Race Data or Content or any defects or errors in any printing or manufacturing, or for any loss or damage of any kind incurred as a result of the viewing or use of any Race Data or Content posted, transmitted or otherwise made available via the Software.
- Restrictions on Use. Except as otherwise specifically permitted in this Agreement, you may not (and you may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by SMARTY CO., in writing; or (b) attempt to disable or circumvent any security mechanisms used by the Software or any applications running on the Software.In addition, you agree not to do or attempt any of the following in connection with the Software:
- upload, post, email, transmit or otherwise make available any User Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
- harm minors in any way;
- impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content transmitted through the Software;
- upload, post, email, transmit or otherwise make available any User Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- upload, post, email, transmit or otherwise make available any User Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, except in those areas specifically designated for such purpose, upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- use the Software to solicit users directly for commercial purposes without prior written authorization from SMARTY CO.;
- disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other users of the Software are able to type, or otherwise act in a manner that negatively affects other users’ ability to utilize the Software;
- interfere with or disrupt the Software or servers or networks connected to the Software, or disobey any requirements, procedures, policies or regulations of networks connected to the Software;
- intentionally or unintentionally violate any applicable local, state, national or international law;
- access the Software from territories where its contents are illegal is prohibited (those who choose to access the Software from other locations do so at their own initiative and are responsible for compliance with all local rules including, without limitation, rules about the internet, data, email, or privacy);
- provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
- “stalk” or otherwise harass another user;
- access the Software in a way meant to avoid incurring fees;
- use any robot, spider, scraper, or other automated means to access the Software for any purpose without the express written permission of SMARTY CO. or bypass robot exclusion files or other measures SMARTY CO. may use to prevent or restrict access to the Software; or
- collect or store personal data about other users, in connection with the prohibited conduct and activities set forth in paragraphs above or otherwise.
- Confidentiality. You agree that, unless otherwise specifically provided herein or agreed by SMARTY CO. in writing, the Software provided to you by SMARTY CO. constitutes confidential proprietary information of SMARTY CO. You shall not permit other individuals to use the Software or to view the related documentation without the permission of SMARTY CO. You agree not to transfer, copy, disclose, provide or otherwise make available confidential information in any form to any third party without the prior written consent of SMARTY CO. You agree to implement reasonable security measures to protect such confidential information, and without limitation to the foregoing, you shall use best efforts to maintain the security of the Software provided to you by SMARTY CO. You will use your best efforts to cooperate with and assist SMARTY CO. in identifying and preventing any unauthorized use, copying, or disclosure of the Software.
- Third Party Materials and Agreements. You may be able to access or use third party software, resources, content, communications or information (“Third Party Materials”) via the Software. You acknowledge sole responsibility for and assume all risk arising from your access to, reliance upon or use of any such Third Party Materials and SMARTY CO. disclaims any liability that you may incur arising from access to, reliance upon or use of such Third Party Materials via the Software. You acknowledge and agree that SMARTY CO.: (a) is not responsible for the availability or accuracy of such Third Party Materials; (b) has no liability to you or any third party for any harm, injuries or losses suffered as a result of your access to, reliance upon or use of such Third Party Materials; and (c) does not make any promises to remove Third Party Materials from being accessed through the Software.
- Pricing. The Software is currently provided to you without charge up to certain usage limits and/or with respect to certain functions, and usage over these limits and/or beyond these functions may require purchase of additional resources and the payment of fees. Please see SMARTY CO.’s Pricing Terms at http://virtualracingschool.com/pricing/ for details regarding pricing for the Software.
- Feedback. We would like to get your feedback on the Software so we can keep improving it. You agree to answer questions regarding the Software posed by us from time to time and you shall, regardless of whether or not formally requested to do, provide to SMARTY CO. reasonable suggestions, comments and feedback regarding the Software, including but not limited to usability, bug reports and test results, with respect to the Software testing (collectively, “Feedback”). The Software may generate a log of its status in text form. If requested by SMARTY CO. you agree to send this log to SMARTY CO. for debugging or support purposes. In some cases the Software may upload such logs directly to our servers, where they may be stored and analyzed for debugging or support purposes. With respect to any Feedback to SMARTY CO., you grant SMARTY CO. a worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up license and right: (i) to make, use, copy, modify, sell, distribute, sub-license, and create derivative works of, such Feedback as part of any SMARTY CO. product, technology, service, specification or other documentation (individually and collectively, “SMARTY CO. Products”); (ii) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of such Feedback (and derivative works thereof) as part of any SMARTY CO. Product; (iii) solely with respect to your copyright and trade secret rights, to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties; and (iv) to sublicense to third parties any claims of any patents owned or licensable by you that are necessarily infringed by a third party product, technology or service that uses, interfaces, interoperates or communicates with such Feedback or portion thereof incorporated into a SMARTY CO. Product, technology or service. Further, you warrant that your Feedback is not subject to any license terms that would purport to require SMARTY CO. to comply with any additional obligations with respect to any SMARTY CO. Products that incorporate any Feedback.
- Technical Support. Technical support is provided for the Software via email to firstname.lastname@example.org, and service-impacting issues shall be addressed as quickly as possible by SMARTY CO.
- No Warranty. THE SOFTWARE IS BEING DELIVERED TO YOU “AS IS” AND SMARTY CO. MAKES NO WARRANTY AS TO ITS USE, RELIABILITY OR PERFORMANCE. SMARTY CO. DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. SMARTY CO. MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO NONINFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU AGREE THAT SMARTY CO. IS UNDER NO OBLIGATION TO RELEASE FUTURE VERSIONS OF THE SOFTWARE AND SMARTY CO. HAS THE RIGHT TO UNILATERALLY ABANDON DEVELOPMENT OF THE SOFTWARE OR ANY SUBSIDIARY FEATURE AT ANY TIME AND WITHOUT OBLIGATION OR LIABILITY TO YOU. YOU ASSUME ALL RISK ASSOCIATED WITH THE QUALITY, PERFORMANCE, INSTALLATION AND USE OF THE SOFTWARE INCLUDING, BUT NOT LIMITED TO, THE RISKS OF PROGRAM ERRORS, DAMAGE TO EQUIPMENT, LOSS OF DATA OR SOFTWARE PROGRAMS, OR UNAVAILABILITY OR INTERRUPTION OF OPERATIONS. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF USE OF THE SOFTWARE AND ASSUME ALL RISKS ASSOCIATED WITH ITS USE.
NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT SMARTY CO.’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
- Indemnification. YOU AGREE TO INDEMNIFY AND HOLD SMARTY CO. AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS AND EMPLOYEES, HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS’ FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR USE OF THE SOFTWARE, OR THE INFRINGEMENT BY YOU, OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY.
- Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL SMARTY CO. BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES THAT RESULT FROM (I) YOUR USE OF OR YOUR INABILITY TO USE THE SOFTWARE, (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, DATA, INFORMATION OR SERVICES, (III) ERRORS, MISTAKES, OR INACCURACIES CONTAINED IN THE SOFTWARE, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY KIND WHATSOEVER ARISING FROM OR RELATING TO YOUR USE OF THE SOFTWARE, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR ANY OTHER FILES OR DATA THAT MAY BE HARMFUL TO COMPUTER OR COMMUNICATION EQUIPMENT OR DATA THAT MAY HAVE BEEN TRANSMITTED TO OR THROUGH THE SOFTWARE, OR (VI) ANY OTHER LOSS OR DAMAGE OF ANY KIND ARISING FROM OR RELATING TO YOUR USE OF THE SOFTWARE, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE. THESE LIMITATIONS SHALL APPLY EVEN IF SMARTY CO. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SMARTY CO.’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), SHALL NOT EXCEED ONE HUNDRED DOLLARS OR THE AMOUNT THAT YOU HAVE PAID FOR THE SOFTWARE IN THE PAST TWELVE (12) MONTHS, WHICHEVER IS GREATER. THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENSION PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
- Term and Termination. Either SMARTY CO. or you may terminate this Agreement at any time by providing the other party written notice thereof. This Agreement shall terminate automatically, without notice, if you fail to comply with the terms of this Agreement. Upon any termination of this Agreement, you must discontinue use of the Software. You are not entitled to receive any refunds if you choose to terminate this Agreement. All provisions in this Agreement which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, warrant disclaimers, and limitations of liability.
- Governing Law. This Agreement will be governed by the laws of the United States and the State of Delaware, excluding the application of its conflicts of law rules. You consent to the personal and exclusive jurisdiction and venue of the state and federal courts located in the State of Delaware.
- Severability; No Waiver. If any of the provisions of this Agreement are held to be invalid under any applicable statute or rule of law, they are, to that extent, deemed omitted. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.
- Contact Information. If you have any questions about this Agreement, please contact us at email@example.com.