Last Updated: 5th July, 2020
THIS USER AGREEMENT (this “Agreement”) is between you and Apex Racing UK Limited. and its affiliates (collectively, including Apex Racing Academy, “Apex Racing.” or “We”) and governs your use of Apex Racing’s software, documentation, and related services, including the services made available on Apex Racing’s websites at https://apexracingac.com and http://apexracingac.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 Apex Racing directly at [email protected] 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 provided by Smarty Co. (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, downloading your Racing Sim’s Setup, Replay, OLAP, BLAP & IBT files from the Apex Racing File Store Server and storing them in an organised and relevant folder in accordance with the racings sims folder structure (“Data Packs”). These Data Packs can also be views via our Associated Software on the Smarty Co. website http://virtualracingschool.com and http://virtualracingschool.appspot.com.
The associated software supplied by SMARTY CO. 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.
- Partners Apex Racing has partnered with Smarty Co. to provide additional services. These terms of service do not override any terms of service you agree to when registering on the Smarty Co. website.
- License. Apex Racing. 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 Apex Racing. You acknowledge and agree that Apex Racing (or Apex Racing’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).
- Ownership of Content. Race Data gathered through use of the associated software belongs to you, and SMARTY CO. acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) to any such Race Data except as provided herein. Aside from Race Data, all other forms of information, data, text, graphics, video, messages or other materials (“Content”) directly provided to you by Apex Racing through the Software, website of social media is the exclusive property of Apex Racing or Apex Racings licensors.
Under no circumstances will Apex Racing 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 Apex Racing, 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:
- access the Software in a way meant to avoid incurring fees; this includes but isn’t limited to allowing other users to login to your iRacing account to download setups through our software. Your Apex Racing Academy and iRacing account may be at risk if not adhered to.
- do not share iRacing setups obtained through our software in anyway, to any individual, for any reason or purpose. Your Apex Racing Academy and iRacing account may be at risk if not adhered to.
- 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 Apex Racing;
- 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, 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;
- use any robot, spider, scraper, or other automated means to access the Software for any purpose without the express written permission of Apex Racing or bypass robot exclusion files or other measures Apex Racing may use to prevent or restrict access to the Software;
- collect or store personal data about other users, in connection with the prohibited conduct and activities set forth in paragraphs above or otherwise; or
- provide or share any personal data or other information through the Services for which you lack authority to provide or share under applicable law in the manner in which it is shared by you.
- Confidentiality. You agree that, unless otherwise specifically provided herein or agreed by Apex Racing in writing, the Software provided to you by Apex Racing constitutes confidential proprietary information of Apex Racing. You shall not permit other individuals to use the Software or to view the related documentation without the permission of Apex Racing. 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 Apex Racing. 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 Apex Racing. You will use your best efforts to cooperate with and assist Apex Racing. 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 Apex Racing 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 Apex Racing: (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.
- Application exceptions are sent to our log server for the purpose of improving the software and identifying bugs.
- Which Apex Racing Academy setups you are loading into iRacing to help us tune the selection of cars we offer.
- Data is collected for the purposes of security, to ensure only authorised users are accessing Apex Racing Academy setups.
- Pricing. The Software is currently provided to you to certain usage limits and/or with respect to certain functions, and usage over these limits and/or beyond these functions may require the purchase of additional resources and the payment of fees. Please see Apex Racing’s Pricing Terms at https://apexracingac.com/#join for details regarding pricing for the Software. Please note that depending on your location and from whom you purchased access to the Software, pricing may vary and your payment may be processed by Apex Racing or one of its domestic or international affiliates.
- 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 Apex Racing 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 Apex Racing. you agree to send this log to Apex Racing 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 Apex Racing, you grant Apex Racing 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 Apex Racing. product, technology, service, specification or other documentation (individually and collectively, “Apex Racing. 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 Apex Racing. 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 Apex Racing. Product, technology or service. Further, you warrant that your Feedback is not subject to any license terms that would purport to require Apex Racing to comply with any additional obligations with respect to any Apex Racing Products that incorporate any Feedback.
- Technical Support. Technical support is provided for the Software via our community Discord Server here https://discord.gg/TCpeYyR. Service-impacting issues shall be addressed as quickly as possible by Apex Racing.
- No Warranty. THE SOFTWARE IS BEING DELIVERED TO YOU “AS IS” AND APEX RACING. MAKES NO WARRANTY AS TO ITS USE, RELIABILITY OR PERFORMANCE. APEX RACING. DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. APEX RACING MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO NONINFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU AGREE THAT APEX RACING IS UNDER NO OBLIGATION TO RELEASE FUTURE VERSIONS OF THE SOFTWARE AND APEX RACING 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 APEX RACING’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
- Indemnification. YOU AGREE TO INDEMNIFY AND HOLD APEX RACING 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 APEX RACING. 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 APEX RACING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, APEX RACING’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 Apex Racing 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.
- 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 protected]