SERVICE AGREEMENT TERMS AND CONDITIONS
1 TERMS OF THIS AGREEMENT
(a) After acceptance by you and AXCIS Information Network, Inc. ("AXCIS"), this Agreement shall become effective on the date that your on-line, TrackMaster® service is activated and shall remain in full force and effect until terminated as provided for herein. Service can take the form of a subscription or a pay-as-you-go-account ("PAYGO"), you select the form of service from the TrackMaster® registration page. You shall indicate your acceptance of the terms and conditions contained herein by clicking the acceptance button on the registration page. AXCIS shall indicate its acceptance of the terms and conditions contained herein by activating your account. The TrackMaster® on-line service is located at trackmaster.com
(b) Either party may terminate this Agreement at any time upon 10-days prior written notice to the other party or as may otherwise be provided for herein and on-line. Regardless of any termination action hereunder, all payments are non-refundable, except as provide for in Section 3(b). Except for any amount then due and payable to AXCIS and the destruction of all data acquired hereunder (and any reports derived therefrom) then in your custody and/or control, the terminating party shall have no other liability to the other party as a result of any termination hereunder.
(c) Notwithstanding the provisions of Paragraph (b) above, AXCIS may, at its option, terminate this Agreement without prior notice if you are in material breach of this Agreement, including, without limitation, a violation of any clause of Section 6 below. A termination under this Paragraph (c) shall not effect any other rights or remedies available to AXCIS, at law or in equity.
(d) Upon termination of this Agreement, for any reason, you shall no longer have access to your account created hereunder.
(e) This Agreement may be modified by AXCIS upon notice to you. If AXCIS sends you notice, via e-mail, posting on-line, or otherwise, of a modification, your continued use of the TrackMaster® services will constitute your acceptance of any such modification. No such notice will be given less than 30 days prior to its effective date.
2 CHARGES AND PAYMENT
(a) You agree to pay all fees and charges for your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is incurred, this would include, but not be limited to, overages and pay-per-use. You agree to pay AXCIS in accordance with the payment option selected by you. You agree to pay all costs (including reasonable attorney's fees and disbursements) incurred by AXCIS in collecting overdue fees from you, and to pay a late charge on any overdue fees at a rate equal to the lesser of 1.5% per month or the maximum rate allowed under applicable law. You shall bear the sole responsibility for the payment of any taxes imposed on your use of the TrackMaster® service by the national and/or local jurisdictions of and within the country of your use.
(b) You may pay for your account by automatic credit card payments or by check or money order. If you choose check or money order, you must contact the AXCIS sales department in the United States at (800) 334-3800 to establish an account. If you select automatic credit card payments you hereby authorize AXCIS to use the credit card information furnished by you hereunder for the purpose of fulfilling your payment obligations under the terms of this Agreement. You warrant to AXCIS that (i) the credit card information provided to AXCIS hereunder is valid in all material respects and lawfully authorized for use, and (ii) such card belongs to you or has been authorized for use by you by the valid cardholder. You are responsible to keep your credit card information current with AXCIS.
(c) Payment for a subscription account is due in advance. Payment for a PAYGO account requires a credit card or, if you have elected to pay by check or money order, you must remit to AXCIS a minimum of $30 to be placed on account. Absent a notice as provided for under the provisions of Subsection 1(b) above, this Agreement will automatically renew under the existing terms and conditions set forth in this Agreement and for the TrackMaster® service options you have chosen, and your credit card will be billed accordingly, or, if you have elected to pay by check or money order, you must send payment to AXCIS in advance or lose your account privileges.
(d) Except as may be provided for in Section 3(b) below, all payments made hereunder are non-refundable. The pricing schedule may be obtained when you register for TrackMaster® the first time and on the home page for each TrackMaster® product, or by contacting the AXCIS sales department in the United States at (800) 334-3800. TrackMaster® reserves the right to modify the pricing on any of its products at any time without notice to you.
3 IMPROVEMENTS, MODIFICATIONS OR DISCONTINUANCE
(a) In order to improve the quality of the TrackMaster® on-line service, AXCIS reserves the right to change its protocols of operation, customer identification procedures and system programming languages as well as other enhancements to the TrackMaster® on-line service. Whenever possible, no such action will be taken without having given you written notice 30 days prior to the effective date thereof.
(b) AXCIS reserves the right at any time and from time to time to modify or discontinue the TrackMaster® on-line service (or any part thereof) with or without notice. You agree that AXCIS shall not be liable to you or to any third party for any modification, suspension or discontinuance of the TrackMaster® on-line service. Notwithstanding anything contained herein to the contrary, a termination under this clause will result in a prorated payment obligation for the month of termination, if applicable.
4 NO WARRANTY
AXCIS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AS TO ANY MATTER WHATSOEVER INCLUDING BUT NOT LIMITED TO THE ACCURACY OF ANY INFORMATION, DATA, PRODUCT, PROGRAM, SOFTWARE, OR SERVICE FURNISHED HEREUNDER. YOU UTILIZE THE TRACKMASTER® ON-LINE SERVICE ON AN "AS IS" BASIS.
5 LIMITATION OF LIABILITY
(a) IN NO EVENT SHALL AXCIS BE LIABLE TO YOU OR TO ANY THIRD PARTIES FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF ANTICIPATED PROFITS OR OTHER ECONOMIC LOSS IN CONNECTION WITH OR ARISING OUT OF THE AVAILABILITY, THE EXISTENCE, THE FURNISHING, FUNCTIONING, OR USE OF ANY OF THE PRODUCTS, INFORMATION, DATA OR SERVICES PROVIDED BY AXCIS TO YOU OR MADE AVAILABLE TO YOU BY AXCIS.
(b) You understand that with multiple processing of complex data, and with reliance upon information acquired from multiple sources, errors and omissions can and do occur despite reasonable efforts to avoid them, and AXCIS expressly shall not have any responsibility or liability for any losses or any special, indirect or consequential damages resulting to you or any third party from errors or omissions in the TrackMaster® on-line service (including, but not limited to errors or omissions in the data supplied thereby). AXCIS SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOSSES, DAMAGE, DELAY IN PERFORMANCE OR NONPERFORMANCE CAUSED BY EQUIPMENT MALFUNCTION OR BREAKDOWN, SERVICE PROVIDER FAILURES, INFORMATION UNAVAILABILITY, STRIKES OR OTHER LABOR DISPUTES, OR RIOTS, FIRE, INSURRECTION, WAR, FAILURE OF CARRIERS, THE ELEMENTS, ACCIDENTS, ACTS OF GOD, OR ANY OTHER CAUSES BEYOND AXCIS’ REASONABLE CONTROL WHETHER OR NOT SIMILAR TO THE FOREGOING.
(c) You agree to extend the limitation of liability contained in paragraphs (a) and (b) of this Section 5 to Equibase Company LLC, The American Quarter Horse Association, The United States Trotting Association, and Standardbred Canada. Each such entity shall be a third party beneficiary of this agreement.
(d) AXCIS is a wholly owned subsidiary of Equibase Company LLC.
(e) THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS SECTION DOES NOT EXCLUDE LIABILITY FOR PERSONAL INJURY TO A PERSON OR DEATH TO THE EXTENT THAT SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
6 CUSTOMER'S RESPONSIBILITIES, WARRANTIES, ACKNOWLEDGEMENTS AND INDEMNIFICATION
(a) AXCIS shall provide you with the ability to select a unique user I.D. and password if you use the TrackMaster® on-line service through the World Wide Web. You shall maintain your user I.D. and password in strict confidence. You shall be solely responsible for the maintenance of the confidentiality of your user I.D. and password. Sharing of a user I.D. and Password is a violation of this Agreement.
(b) You agree to immediately notify AXCIS if you become aware of any loss or theft or unauthorized use of your user I.D. or password. Only the authorized person agreeing to the terms and conditions of this Agreement may use the user I.D. and password assigned or selected hereunder
(c) You understand and agree that all information acquired hereunder is for your own private, personal use only. You agree that you will not share, transfer sublicense, create derivate works, or otherwise distribute or transfer or provide access to information acquired hereunder to any third party without having first obtained the written permission of AXCIS. These restrictions shall survive any termination of this Agreement.
(d) You acknowledge that AXCIS is not responsible for notifying you of any upgrades, fixes or enhancements to any software or for any compromise or loss of data transmitted across computer networks or telecommunications facilities, including, but not limited to, the Internet.
(e) The security of any data inputted by you may be maintained through the use of data encryption, data security protocols, passwords and other methods which AXCIS may employ, or which AXCIS may suggest or require that you employ. You agree that AXCIS has no responsibility for the deletion or failure to store any data transmitted by you or anyone else.
(f) AXCIS shall not be obligated to delete or return data inputted by you upon termination of this Agreement.
(g) You acknowledge and agree that the TrackMaster® on-line service contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that content contained in sponsor advertisements or information presented to you through the TrackMaster® on-line service or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. You agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the TrackMaster® on-line service, in whole or in part. You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the TrackMaster® on-line service, use of the TrackMaster® on-line service, or access to the TrackMaster® on-line service.
(h) You agree to abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with the use of the TrackMaster® on-line service. In addition, and without limitation, you agree not to use the TrackMaster® on-line service to: (i) use information from the TrackMaster® on-line service in connection with sending unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (ii) harvest, collect, gather or assemble information or data regarding other users, including email addresses, without their consent; (iii) transmit through the TrackMaster® on-line service unlawful, harassing, libelous, abusive, tortious, defamatory, threatening, harmful, invasive or another's privacy, vulgar, obscene or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; (iv) interfere with or disrupt servers or networks connected to the TrackMaster® on-line service or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the TrackMaster® on-line service, other accounts, computer systems or networks connected to the TrackMaster® on-line service, through password mining or any other means; or (vi) harass or interfere with another user's use and enjoyment of the TrackMaster® on-line service.
7 PROPRIETARY DATA
All the TrackMaster® on-line service systems, programs, records, statistics, data, documentation, and any other like-kind material utilized or developed by AXCIS in connection with the TrackMaster® on-line service, shall be and remain the sole property of AXCIS (save for Customer-inputted data). All rights, title to, and interest in, including copyrights and renewals thereof, all systems, programming, records, statistics, data, documentation, operators' manuals, components, and accessories comprising the system furnishing the services hereunder and provided by AXCIS shall remain the property of AXCIS or its licensor at all times (save for Customer-inputted data).
You agree, at your own expense, to indemnify, defend and hold harmless AXCIS, the entities identified in Subsection 5(c) and their respective owners, partners and affiliates, agents, directors, officers, employees, representatives, successors, and assigns (collectively, for the purposes of this Section 8 only, “AXCIS”) from and against any and all claims, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees, arising out of or in connection with the Service, or any links on the Service, including, but not limited to: (i) your use of the TrackMaster® service (“Service”); (ii) any use of the Service via your computer; (iii) someone else using your username and password to access the Service; (iv) a violation of this Agreement by you or anyone using your computer (or your user account, where applicable); (v) any deletions, additions, insertions or alterations to, or any unauthorized use of, the Service by you or someone using your computer (or account, where applicable); (vi) any misrepresentation by you in connection with your web site registration or any breach of a representation or warranty made by you contained herein; or (vii) any breach of any covenant or agreement to be performed by you hereunder. You agree to pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys' fees and costs awarded against or otherwise incurred by or in connection with or arising from any such claim, suit, action, or proceeding attributable to any such claim. AXCIS reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with AXCIS in asserting any available defense. You acknowledge and agree to pay AXCIS' reasonable attorneys’ fees incurred in connection with any and all lawsuits brought against you by AXCIS under this Agreement and any other terms and conditions of service on this site, including without limitation, lawsuits arising from your failure to indemnify AXCIS pursuant to this Agreement.
(a) AXCIS will provide technical support, by telephone, free of charge for as long as your account is maintained.
(b) If you purchase any software and/or equipment from AXCIS to enable you to access the TrackMaster® on-line service, AXCIS is under no obligation to re-purchase such equipment from you upon termination of this Agreement.
(c) Any assignment of this Agreement by you without the prior written consent of AXCIS shall be null and void. AXCIS may assign this Agreement to an affiliate having the capacity and expertise to provide the services required by this Agreement, upon prior written notice to you.
(d) No waiver of any breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or other provisions of this Agreement, and no waiver shall be effective unless made in writing.
(e) This Agreement represents the entire agreement between the parties hereto and supersedes all prior representations or understandings whether written or oral. This Agreement may not be amended, altered, or modified except by a writing signed by the parties hereto or as otherwise provided for herein.
(f) This Agreement shall be binding upon the parties, their successors, legal representatives, and permitted assigns.
(g) THE LAWS OF THE STATE OF CALIFORNIA, USA, APPLICABLE TO AGREEMENTS EXECUTED AND PERFORMED WHOLLY WITHIN CALIFORNIA, SHALL GOVERN THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT. IT IS EXPRESSLY AGREED TO BY AND BETWEEN THE PARTIES HERETO AND ANY OTHER PERSON OR PERSONS SEEKING TO UTILIZE THE SERVICES PROVIDED FOR HEREUNDER, THAT ANY LAWSUIT BROUGHT AGAINST AXCIS SHALL BE COMMENCED AND ADJUDICATED ONLY IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OR IN CALIFORNIA STATE COURTS LOCATED IN SANTA CLARA COUNTY.
(h) All notices (whether written or otherwise) required or permitted under this Agreement shall be posted on-line or shall be in hard-copy writing and shall be delivered by mail, postage prepaid, properly addressed to the appropriate party.
(i) If any provision of this Agreement or its application is held to be invalid, illegal, or unenforceable in any respect, the validity, legality, or enforceability of any of the other provisions and applications herein shall not in any way be affected or impaired and any provision held to be invalid, illegal or unenforceable shall be replace with an enforceable provision of like intent and effect.
REMOTE SUPPORT USER AGREEMENT
By utilizing the Axcis Information Network, Inc. (“TrackMaster”) remote support services (“Services”) and by downloading the remote access software provided by TrackMaster (“Software”) to your computer, you (on behalf of yourself and/or the legal entity you represent) and TrackMaster acknowledge and agree:
1) That you will grant remote access to your computer to TrackMaster’s or its affiliates’ or subcontractors’ support personnel for the purposes of providing remote technical support and that you are authorized to grant access to computer or other device to which the remote connection will be established.
2) That you are personally responsible for ensuring that a valid backup of any data and applications has been made prior to any activities undertaken via the TrackMaster remote support Software.
3) TrackMaster grants to you a nonexclusive and nontransferable license to use the Software in object code form solely for use on your computer in support with TrackMaster’s remote access services.
4) That because of complexity and variety of support cases and inevitable dependencies and reliance on third party technologies; all support is provided on a “commercially reasonable efforts” basis and TrackMaster may not be able to remedy some issues.
5) That you do not have private, confidential, secure or password sensitive applications, web pages, email, documents or the like open and running on your computer during remote support activities. Should you not comply with the provisions of the preceding sentence, you hereby waive any rights you may have to privacy or confidentiality.
6)That for reasons of providing good customer care we may help you with and offer solutions to issues that you may consider to be faults or problems but you acknowledge and agree that provision of any help for solving and/or circumventing the abovementioned issues shall not be deemed as an acknowledgement that any such issues would constitute errors or faults in our software or services.
7) You agree that except for the time-limited use of software for the purpose of solving your support problem, no other rights to software are granted to you.
8) That for the purposes of providing you with support and problem resolution services, (a) you may be asked to provide personally identifiable data (including emails and/or metadata thereof) to TrackMaster and/or (b) where necessary to resolve the support issue, data from your device that is identifiable to you may be collected and sent to TrackMaster for problem resolution analysis.
9) That all Services and Software are provided as-is and at your own risk. You acknowledge and understand that the support person providing you with Services is not familiar with interconnections, settings, or special applications on your device or all purposes to which your device is used for or for which the device is connected to. You acknowledge and agree that in no event will TrackMaster have any liability to you or any third party for damage to any computers, software applications, networks, peripherals or equipment which occurs as a result of or in connection with the performance of the Services or use of the Software.
10) That any suggestion given by TrackMaster to resolve the issue is only intended for the support issue at hand and is not intended or offered as a generic advice or as advice for any or all other purposes.
11) THE SERVICES AND SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS, AND YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, TRACKMASTER DISCLAIMS ALL EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TIMELINESS, ACCURACY AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, TRACKMASTER DOES NOT WARRANT THAT THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED, ERROR FREE, OR COMPLETELY SECURE.
12) SINCE USE OF THE SERVICES AND THE SOFTWARE IS AT YOUR OWN RISK, AT NO TIME shall TRACKMASTER have any responsibility or liability for any DIRECT, INDIRECT, consequential, incidental or special damages whether in contract, tort, negligence or otherwise to each other or to any third party relating to or arising under THIS AGREEMENT OR ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGE OR DESTRUCTION TO COMPUTERS, SOFTWARE APPLICATIONS (THIRD PARTY OR YOUR OWN), NETWORKS, PERIPHERALS OR EQUIPMENT, THEIR, MALFUNCTION, OR ANY LOSS OF ANTICIPATED PROFITS, OR OTHER economic loss.
13) This agreement shall become effective upon your initiating download of the Software and shall remain effective until terminated. Either party may terminate this agreement at any time upon written notice to the other party. Upon the termination of this agreement, you will delete the software from your system immediately.
14) This agreement shall be governed by and construed in accordance with the laws of the State of California, United States of America, as if performed wholly within the state and without giving effect to the principles of conflict of law. If any portion hereof is found to be void or unenforceable, the remaining provisions of this agreement shall remain in full force and effect. This agreement constitutes the entire agreement between the parties with respect to the use of the Software and provision of the Services.
15) You may not assign, sublicense, or transfer this agreement, the Software, or any rights or obligations hereunder without prior written consent of TrackMaster. Any such attempted assignment, sublicense, or transfer will be null and void