TERMS AND CONDITIONS OF KARTING MANAGER
SOFTWARE RENTAL AGREEMENT
The following Terms and Conditions of Software Rental Agreement (“Software Rental Agreement”, “SRA”, or “Agreement”) govern the purchase and use of products, content, and services (“Services”, “System”) provided by MII Consulting (d.b.a. KartingManager) located at ul. Panewnicka 230e, 40-772 Katowice, Poland (“KartingManager”, “Us”, “We” or “Our”).
By accepting this document, You Our customer (“You”, “Your”, or “User”) are agreeing to these terms. You agree that You are executing Software Rental Agreement on behalf of Your entire organization, and represent and warrant that You have the right to do so. All other users from Your organization will be subject to the terms of the Agreement.
This document is effective between You and Us as of the date You accept the Agreement (the “Effective Date”).
Our Services are diverse and sometimes additional terms may be required for new Services that We introduce. If additional terms are required, those terms will be presented to You for approval in a separate agreement (“Supplemental Services Agreement”) which upon mutual acceptance will become a part of this Agreement.
Description of Services
KartingManager provides a complete software solutions for all types of karting centers (“System”). Kartingmanager also provides hardware for karting as well as business consulting for new and existing karting tracks.
Use of Services, Your Responsibilities
User Account Creation.
In order to access and use the Services, You will need to enter into the Agreement with Us and implement the Local IT Infrastructure required by the System. You can either build it on Your own in conformity with Our instructions and with Our full support and help, or let Us build it and just cover the costs of this extra service pursuant to the cost estimate upon Your prior consent.
Your employees, contractors, or other parties will also have access to the System (“Users”). You will be responsible for all Users who you will allow to use the System as well as their compliance with this Agreement, applicable laws and regulations.
User Identification & Passwords.
You are responsible for maintaining the confidentiality of Your’s and Your Users’ identifications and passwords, which allow access to the System.
User Account Notifications.
Some Account notifications will be sent electronically, to the e-mail address provided in Your Registration Information. These communications are considered part of the Services and You may not be able to opt-out from receiving them.
User Account Information.
By submitting information, data, passwords, usernames, PINs, other log-in information, materials and other content through the System about Your karting venue (“Account Information”), You are expressly authorizing KartingManager to store, access and use the Account Information to provide You with the System and full access to its Services. You are responsible for the accuracy, quality, integrity and legality of Your Account Information (and of the means through which it was acquired by You or Your Users).
You are responsible for Your Users’ compliance with the acceptable use of Our Services as defined herein.
Suspension of Services.
We may suspend the provision of Services in the event You violate Our Terms and Conditions policies, fail to pay amounts due or breach the Agreement in a different way. We may also temporarily suspend your access to the System in the event that We deem it necessary to prevent harm to Your data or the System. Any suspension will only be for the scope and duration necessary to limit harm to You, KartingManager, the System, or third parties.
Operation of Purchased Services and Service Availability.
We will (a) make the System available to You pursuant to the Agreement, (b) use all commercially reasonable efforts to make the System available 24 hours a day, 7 days a week except for (i) planned downtime for routine maintenance, (ii) any unavailability caused by circumstances beyond Our reasonable control (“Force Majeure”), including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), equipment failures, denial of service attacks, periodic updating, or any service provider failures or delays. The minimum acceptable level of uptime of the System shall be 99% (“Service Level”). Any unavailability above that level will be compensated proportionally to one hour, so that every one hour of unavailability of the System reduces Your Monthly Fee by 1/720.
We will provide Our standard level of technical support for the System free of charge, 24 hours a day, 7 days a week.
We will maintain administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of Your Account Information and Your Clients, in accordance with applicable industry standards. We may access Account Information or other data as necessary to identify or resolve technical problems or to provide Users with support.
Fees and Payment for Purchased Services
Services. Subscription Fee.
KartingManager offers access to the System for a fee. To enable and use the System, You are required to pay the fees associated with the Services: (a) the Implementation fee and (b) monthly flat subscription fee (“Subscription Fee”).
The implementation fee amounts to 500 EUR (say: five hundred) net rate. This price includes Our full support and help in remote implementation of the System, as well as the cost of Server Rental. Any additional, unforeseen costs of the implementation shall be covered by You pursuant to the cost estimate upon prior agreement between us (“Extra Costs”). If You wish Us to do so, we are able and willing to visit Your venue and perform the physical implementation of the System, as well as build the Local IT Infrastructure and set everything up. However, the cost of travel, accommodation and our labour will be added to the Extra Costs mentioned above.
Subscription Fee depends on variety of factors related to Your needs and other factors, therefore it is subject to mutual consent between us reached during the Agreement negotiation process.
There are no extra subscriptions or usage limitations. We charge only one fee for the access to full functionality of the System. We do not charge for any Updates or possible additional features introduced to the System in the future. We do not charge for membership cards. What is more, we provide 5000 free of charge e-mail messages to send to Your Clients every month.
Invoicing and Payments.
Our fees are billed in advance each month unless otherwise noted in the Agreement. Unless otherwise stated, all fees are quoted in EURO. Fees for the first month of a new Subscription will be prorated to reflect any partial month of service. Due to the necessity of purchase of relevant hardware, the first invoice (“Implementation Invoice”) shall be covered before the implementation.
All payment obligations are non-cancelable and all amounts paid are nonrefundable. If payment is to be made via credit card or electronic money transfer such payment shall be chargeable upon invoice date and no receipt will be provided. KartingManager reserves the right to invoice You directly in the event that reasonable efforts made to obtain a credit card or electronic money transfer payment authorization fail.
Payment terms are net seven (say: seven) days from the date of the invoice, without offsets or deductions of any kind and payment is due in EURO. Late payments will bear interest at the rate permitted by provisions of Polish Law, calculated from the date such amount was due until the date that payment is received by KartingManager.
Our fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You are responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Our income. You are responsible for paying all taxes associated with Your purchase of any Services. If KartingManager has the legal obligation to pay or collect taxes for which You are responsible, the appropriate amount shall be invoiced to and paid by You unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
If You believe Your bill is incorrect, You must contact KartingManager in writing within 15 (say: fifteen) days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
You agree that Your purchases are not contingent on the delivery of any future release of new features, functionality, or dependent on any oral, written or public comments made by KartingManager regarding such features, functionality, or services.
Changes to Pricing and Fees.
We reserve the right to modify Our prices and fees and to introduce new fees upon thirty (30) days prior notice to You. Any such changes will only become effective upon renewal of a Subscription term.
Free Trials and Demo Versions
We offer free trials and demo versions of Services as a way for You to conduct an evaluation. Trials and demos may be extended or terminated by Us for any reason at any time. If You are using Our Services as part of a free trial or demo, any data or information You enter into the System, and any customizations made to the System by or for You, during Your trial period can be permanently lost unless You purchase a Subscription to the same System Service as those covered by the trial or demo before the end of the trial or demo period.
Indemnification by Us.
We agree to defend You against any claim or suit made or brought against You by a third party alleging that Your use of a System in accordance with the Agreement infringes the intellectual property rights of that third party or violate any applicable law (“Claim Against You”), and will indemnify You from damages and reasonable attorney fees finally awarded against You or for amounts paid by You under a court-approved settlement of a Claim Against You, provided You: (i) promptly provide Us with written notice of any Claim Against You, (ii) give Us sole control over the defense and settlement of the Claim Against You provided that any settlement fully releases You from all liability, and (iii) provide Us with all necessary assistance to prepare and execute a defense, at Our Expense. If We receive notice of any infringement, We may (a) modify Our Services so that it no longer infringes (without substantively diminishing the features or functionality of the Services You have subscribed to) or, (b) Procure a license that enables You to continue to use the Services, or (c) terminate Your Subscriptions with 30 days notice and provide You a refund of any prepaid fees covering the remainder of the term of those terminated subscriptions.
Indemnification by You.
You agree to defend, indemnify and hold harmless KartingManager and its officers, directors, and employees, from and against all claim or suit made or brought against Us by a third party alleging that Your use of Our Services are in breach of the Agreement, or infringe the intellectual property rights of that third party, or violate any applicable law (“Claim Against Us”), and will indemnify Us from any damages and reasonable attorney fees finally awarded against Us or for amounts paid by Us under a court-approved settlement of a Claim Against Us, provided We: (i) promptly provide You with written notice of any Claim Against Us, (ii) give You sole control over the defense and settlement of the Claim Against Us provided that any settlement fully releases Us from all liability, and (iii) provide You with all necessary assistance to prepare and execute a defense, at Your expense.
Each party to this Agreement represents that it has voluntarily entered into this Agreement and has the legal authority to do so, and is not barred from entering this Agreement by any applicable laws.
The Services are provided “AS IS” and on an “AS AVAILABLE” basis and the entire risk as to satisfactory performance, accuracy, and results is with You. We do not warrant that the Services will be provided without interruption or be completely error free. We do warrant that We will use all commercially reasonable efforts to ensure that the Services are free of infection from any viruses or other code or computer programming routines that contain contaminating or destructive properties or that are intended to damage, surreptitiously intercept or expropriate any system, data or personal information.
KartingManager disclaims any warranties, express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, non-infringement and any warranties arising out of course of dealing or usage of trade.
KartingManager owns all worldwide right, title and interest in and to the System including the underlying software platform including all worldwide intellectual property rights therein, that KartingManager uses to provide the Services. The Agreement does not convey any proprietary interest in or to rights of entitlement to the use thereof except as expressly set forth therein. You acknowledge and agree that the fees paid to KartingManager apply only to the use of the Services by You.
Feedback, comments and suggestions may be provided regarding improvements to the Services (“Feedback”) and will be given entirely voluntary by You. KartingManager will be free to use, disclose, reproduce, license or otherwise distribute and exploit such Feedback as it sees fit, on a royalty-free irrevocable basis, entirely without obligation or restriction of any kind.
Logo and Trademark
Use of Your Logo and Trademarks by Us.
We agree that You may display Our company name, and logo or trademark on Your websites and in connection with routine marketing of Your karting venue.
Use of Our Logo and Trademarks by You.
You agree that KartingManager may display Your company name, and logo or trademark on Our websites and in connection with routine marketing of the Services.
Definition of Confidential Information.
Each party understands that the other party may need to disclose certain non-public information relating to the disclosing party’s business that is marked as “confidential” at the time of disclosure or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure in connection with the use and/or performance of the Services (“Confidential Information”). Confidential Information does not include any information that the receiving party can show: (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the disclosing party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the disclosing party.
Protection of Confidential Information.
The receiving party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except as expressly permitted herein) or disclose to any third person any such Confidential Information. Neither party will disclose to third parties the other’s Confidential Information unless: (i) the other party has given its specific and express prior written approval, (ii) the disclosure is expressly allowed under this Agreement.
Notwithstanding any other provision, KartingManager may disclose Confidential Information it receives if compelled to do so by law, regulatory requirement or legal process. Unless prohibited by law or legal process, KartingManager will use its commercially reasonable efforts to give You prior notice of the request for such disclosure and a reasonable period of time to respond to such request.
KartingManager may collect anonymous usage data with respect to the use of the System to measure and analyze performance of the System. KartingManager will use this usage data and System Data for internal business purposes only, including improving, testing and providing the System and may only disclose such usage data or System Data in anonymous aggregate form (e.g. data aggregated from multiple customers’ use of the System, but without specifically identifying You or any other User or customer).
Limitation of Liability
Except for any indemnity obligations or breach of confidentiality obligations above, the maximum extent permitted by applicable law, neither party will be responsible or liable, whether in contract, warranty, tort (including negligence) or otherwise, for any indirect, special, incidental, consequential, exemplary, liquidated or punitive damages, including but not limited to loss of profit, arising in whole or in part from you access to or use of the System, even if KartingManager has been advised of the possibility of such damages. Notwithstanding anything to the contrary in this agreement, except for breach of confidentiality obligations above, KartingManager’s liability to You for any cause whatever and regardless of the form of the action, will at all times be limited to the amount of 1 month subscription fee.
Term & Termination
The Agreement commences on Effective Date and continues the subscriptions thereunder have expired or have been terminated.
The term of Subscription is specified in §4 of the Agreement.
The term of Subscription will automatically renew for a subsequent renewal term of the same length, unless either party notifies the other party of its intent not to renew on the same terms. In the case of Subscription where the Term amounts to or is greater than 24 months, notice of non-renewal must be given at least two months prior to the end of the then current Subscription Term.
Termination for cause.
We reserve the right to terminate the Agreement for cause (i) upon 30 days written notice to the You of a material breach and such breach remains uncured at the expiration of such period, or (ii) You become insolvent, enter into receivership, file a petition for bankruptcy, or any other proceeding related to the liquidation or assignment for the benefit of creditors.
Data Portability and Deletion.
Upon any termination by You, the System and/or Your Account (whichever is applicable) will no longer be accessible and all Account Information will be scheduled for deletion as soon as possible. Any cancellation request will be handled within 30 days of receipt of such request. Upon any termination or suspension, KartingManager will have no obligation to maintain any Account Information, data or any related information that was stored in Our database related to Your use of the System, delete any System Data, or forward any information to You (or to any third party).
Refund Upon Termination.
In no event will Termination relieve You of any obligation to pay fees owed to Us for the period prior to the effective date of Termination.
Any suspension or termination will not affect Your obligations or licenses to KartingManager under the Agreement (including, without limitation, ownership, confidentiality, indemnification, Data, and limitation of liability), which are intended to survive such suspension or termination.
Notices, Jurisdiction, Miscellaneous
KartingManager may modify or revise these Terms. In the event that KartingManager does so, KartingManager will notify You and provide You with the opportunity to accept the new terms, at which point Services will be provided under the new terms.
This Agreement, and Your relationship with KartingManager, shall be governed by the laws of the Republic of Poland without regard to its conflict or choice of law provisions. Any dispute with KartingManager, or its officers, directors, employees, agents or affiliates, arising under or in relation to these Terms shall be resolved exclusively through the courts with jurisdiction over KartingManager’s registered office.
These Terms constitute the complete and exclusive understanding of Agreement between Us regarding their subject matter and supersede all prior or contemporaneous Agreements or understandings, written or oral, relating to their subject matter.
You may not assign these Terms, in whole or in part, without KartingManager’s prior written consent, except in connection with a merger, acquisition, or sale of all or substantially all of Your assets, provided that You provide KartingManager with prior notice.
Relationship of the Parties.
Nothing expressed by the acceptance of this Agreement is intended to imply or create a partnership, association, joint venture, employee-employer, or franchiser-franchisee relationship.
If any portion of the Agreement is found to be void or unenforceable, the remaining provisions will remain in full force and effect.
Order of Precedence.
To the extent that conflicts occur between terms contained in the Agreement and those defined in a Terms and Conditions document the order of precedence shall be: the Agreement and then Terms and Conditions.
All other notices under the Agreement other than Termination or an indemnifiable claim may be made via email. Notice shall be deemed made upon personal delivery or the first business day after sending by email. All notices should be addressed to:
ul. Panewnicka 230e