User Agreement
This User Agreement (this “Agreement”) is a contract between you and Axcis Information Network, Inc. (“TrackMaster”) and applies to your access to the www.dropbox.com account maintained by TrackMaster (“TrackMaster Files”) and possession and use of TrackMaster’s data contained in the TrackMaster Files (the “TrackMaster Data”). YOU AGREE AND ACKNOLWEDGE THAT THIS AGREEMENT IS PERSONAL TO YOU AND IN NO EVENT SHALL YOU PROVIDE ANY THIRD PARTY OR PERSON WITH ACCESS TO THE TRACKMASTER FILES, THE TRACKMASTER DATA OR ANY PORTIONS OF DERIVATIVES OF THE TRACKMASTER DATA.
As a predicate to your access to the TrackMaster Files and use of the TrackMaster Data you acknowledge that you have read, understood and agree to all terms of this Agreement as well as the Terms of Use and Privacy Policy maintained by TrackMaster, which are expressly incorporated herein. If you do not agree to the terms of this Agreement, the provisions of the TrackMaster Terms of Use and the TrackMaster Privacy Policy, then you must immediately cease any access to the TrackMaster Files and delete and purge all instances of the TrackMaster Data (including, without limitation, any subsets thereof and/or any derivatives thereof). In the event of a conflict between the provisions of this Agreement and the TrackMaster Terms of Use, the provisions of this Agreement shall prevail.
We may amend this Agreement or the Terms of Service at any time. Any revised versions will be effective at the time of receipt by you or posting to TrackMaster’s website.
In this Agreement, "you" or "your" means any person or entity accessing the TrackMaster Files. Unless otherwise stated, “we,” or “our” refer collectively to TrackMaster.
The TrackMaster Files
The TrackMaster Files are contained in a www.dropbox.com data repository where you can access a particular set of data relating to Harness racing (“TrackMaster Data”). Following your successful registration with TrackMaster (including, without limitation, your agreement to this Agreement), you will be provided with personalized access information necessary to access the TrackMaster Files. In no event shall you transfer, share or otherwise make such access information available to any other person or third party.
You acknowledge and agree that (i) the TrackMaster Files and the TrackMaster Data may only be used for your own, internal, non-commercial testing purposes and (ii) you will not use the TrackMaster Files or the TrackMaster Data for any other purpose. You expressly agree that in no event shall you:
- Publicly display the TrackMaster Data or any analyses or derivatives thereof;
- Disseminate the display the TrackMaster Data or any analyses or derivatives thereof; or
- Provide any third party or person with access to the TrackMaster Files or the TrackMaster Data at any time without the advance written consent of TrackMaster in each such instance.
We make no promises or claims related to the availability or uptime of the TrackMaster Files or the TrackMaster Data. You further acknowledge and agree that TrackMaster does not commit to maintain availability of the TrackMaster Files and/or TrackMaster Data, and TrackMaster reserves the right to deny or cease your access to the TrackMaster Files and/or the TrackMaster Data at any time.
Limitations. You agree that: (i) TrackMaster has no obligation to maintain the TrackMaster Data within the TrackMaster Files and that TrackMaster may delete, truncate or add to the TrackMaster Data at any time without notice; and (ii) the TrackMaster Data may not be accessed for the purpose of monitoring performance, or functionality, or for any other benchmarking or competitive purposes. You further agree that you will not rely on any of the TrackMaster Data for wagering and/or handicapping purposes at any time.
“AS IS” WITH NO WARRANTY. THE TRACKMASTER FILES AND TRACKMASTER DATA ARE PROVIDED ARE PROVIDED (AND YOU HEREBY AGREED TO ACCEPT THEM) "AS IS" AND "WITH ALL FAULTS, DEFECTS AND ERRORS" AND TRACKMASTER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE TRACKMASTER DATA (INCLUDING ANY WARRANTIES OF ACCURACY OR TIMELINESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT).
Indemnification. In the event of claim, suit or demand (including legal fees) made or incurred by any third party due to or arising out of (i) your breach of this Agreement, (ii) your violation of any law or the rights of a third party or (iii) your use of the TrackMaster Files or the TrackMaster Data you agree to indemnify, defend and hold TrackMaster, including its officers, directors and employees, harmless against any and all claims including, without limitation, claims for direct, consequential, special and punitive damages and for court costs and reasonable attorney’s fees.
LIMITATION OF LIABILITY. IN NO EVENT WILL WE BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE TRACKMASTER FILES, THE TRACKMASTER DATA, OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). OUR LIABILITY TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE AMOUNT OF DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED $500.00.
YOU RECOGNIZE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS IN THIS AGREEMENT ARE MATERIALLY BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
Rights and Licenses
TrackMaster Ownership. We own and reserve all right, title, and interest in and to the TrackMaster Files, and all TrackMaster Data. No rights are granted to you hereunder other than as expressly set forth herein.
License to TrackMaster Files and TrackMaster Data. Subject to your continued compliance with the terms of this Agreement at all times, and solely during the term of this Agreement, TrackMaster grants you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use the TrackMaster Files and TrackMaster Data solely for your own, personal use in accordance with the limitations set forth herein.
License Restrictions. You will not, and will not permit any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to access the TrackMaster Files; (ii) modify, translate, or create derivative works based on the TrackMaster Data for any purpose other than your own internal non-commercial purposes, subject in all cases to the other limitations in this Agreement and the Term of Use; (iii) use the TrackMaster Files and TrackMaster Data for any purpose not compliance with any applicable laws and regulations.
To the extent that you are accessing the TrackMaster Files on behalf of a third party (corporation, company or other legal entity or other person), you warrant and represent that you are competent and authorized to enter into this Agreement on behalf of the legal entity or person for whom you purport to sign. You agree to indemnify and hold TrackMaster harmless against any claim, suit or demand, including necessary expenses of investigation and reasonable attorneys’ fees, in which it may be asserted that you were not competent and/or so authorized to execute this Agreement.
Confidentiality
Definition. TrackMaster’s “Confidential Information” includes the TrackMaster Files, TrackMaster Data and www.dropbox.com log-in credentials supplied by TrackMaster to you, and all non-public information regarding the operation of TrackMaster’s services.
Confidentiality Obligations. You agree to hold TrackMaster’s Confidential Information in confidence and not to use it other than as necessary to use the TrackMaster Files as contemplated in this Agreement. You agree to cease use of and, as applicable, return all Confidential Information at TrackMaster’s request. These confidentiality obligations shall not apply to information which (a) has entered the public domain except where such entry is the result of your breach of this Agreement; (b) prior to disclosure hereunder was already in your possession; or (c) subsequent to disclosure hereunder is obtained by you on a non-confidential basis from a third party who has the right to disclose such information to you.
Term and Termination
This Agreement shall begin on the date you first access the TrackMaster Files and will continue until the expiration of your access to the TrackMaster Files or until earlier terminated by either party. Either you or TrackMaster may terminate the Agreement at any time and for any reason upon thirty (30) days’ notice. Either party may terminate the agreement effective immediately in the event of a breach of the agreement by the other party. TrackMaster may terminate this Agreement by sending notice to the email address you used when registering for TrackMaster Files access. In the event you wish to terminate this Agreement, you shall send a written letter specifying your desire to terminate this Agreement to:
General Counsel
TrackMaster Company LLC
821 Corporate Drive
Lexington, KY 40503
Upon a termination of this Agreement (a) all licenses granted to you shall cease and (b) you will ensure that you have deleted and purged all TrackMaster Data, portions and derivatives thereof, from your systems, files, servers and other repositories.
Miscellaneous
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Kentucky without regard to the conflicts of laws provisions therein, and the parties agree to be subject to the exclusive jurisdiction of the courts in the County of Fayette, Kentucky in the event a suit is commenced in connection with this Agreement. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. This Agreement contains the entire Agreement between the parties relating to the subject matter hereof. By your access and use of the TrackMaster Files and the TrackMaster Data you acknowledge that you have read, understood and agree to all terms of this Agreement.