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eWinSpeed

User Agreement

This WinSpeed™ User License Agreement (the “Agreement”) contains the terms and conditions upon which American Racing Pigeon Union, Inc., an Oklahoma corporation (“AU”), grants to you (“Licensee”) a limited license to the WinSpeed Software as defined below. Please read this Agreement carefully, by clicking “I AGREE”, installing or otherwise using the WinSpeed Software, you acknowledge that you have read and accept the terms and conditions of this Agreement in its entirety. If you are entering into this Agreement on behalf of a racing pigeon club, the club must be a club which is authorized by AU and registered on AU’s website. You warrant and represent to AU that you are authorized to enter into this Agreement on such club’s behalf. The terms and conditions that follow cannot be altered, modified, or amended without the written consent of AU.
1. DEFINITIONS
a. AU’s Confidential Information - The WinSpeed Software and all of the software code (including, but not limited to, any third party software licensed with the WinSpeed Software), Documentation and any Trade Secret, concepts, ideas, improvements, processes, plans, designs, specifications, architecture, database tables and structures, data record layouts, models, methods, processes, algorithms, content, data bases, and all other AU information, whether patentable or not, that is provided, developed, conceived or in any way disclosed by AU to Licensee. b. Designated User - Either an individual Licensee or a current member of an authorized AU club Licensee. c. Documentation - “Documentation” means collectively: (i) all of the written, printed, electronic, or other format materials published or otherwise made available by AU to Licensee that relate to the technical aspects of the WinSpeed Software including its functional, operational, and/or performance capabilities; and, (ii) all user, operator, system administration, technical, support, and other manuals and all other written, printed, electronic, or other format materials published or otherwise made available by AU that describe the functional, operational, and/ or performance capabilities of the WinSpeed Software. Documentation shall not include source code or executable(s). d. Effective Date -The Effective Date shall be the date of Licensee’s order submission to AU, subject to Licensee's full payment of the required license fees. e. Permitted Purposes - The WinSpeed Software shall only be used by a Designated User for permitted purposes consisting of use by race secretaries [expand as appropriate] and in accordance with the instructions provided by AU for use of the WinSpeed Software as such instructions may change from time-to- time. For the avoidance of doubt, the following are not Permitted Purposes: [Fill in] 2 f. Sites - AU and WinSpeed web sites (https://www.pigeon.org/ and https://winspeed.pigeon.org/winspeed.php). g. WinSpeed Software -The WinSpeed [Version ____] software and any associated media, executables, object code, files, databases, printed and/or online Documentation, and other materials that are licensed to Licensee. h. WinSpeed Data - Data that is collected or transmitted through the use of the WinSpeed Software or stored by AU. i. AU’s Intellectual Property - Proprietary information and/or data including, but not limited to, Trade Secrets, copyrights, trademarks, inventions (whether patentable or not), concepts, ideas, methods, techniques, formulas, algorithms, logic designs, screen displays, schematics, source and object code, computer programs. j. Term - The initial term of this Agreement shall begin on the Effective Date and shall end when the specified duration after activation expires. AU and Licensee can extend the initial term of this Agreement by mutual written agreement. k. Territory - United States of America. l. Trade Secret - Trade Secret shall mean, without limitation, any scientific or technical data, information, design, process, procedure, formula, or improvement that is commercially valuable to AU and not generally known in the industry or field.
2. LICENSE
a. Subject to the terms of this Agreement and timely payment of the required license fees, AU hereby grants to Licensee, and Licensee accepts, a nonexclusive and nontransferable right and license to use the WinSpeed Software in the Territory, without a right to sublicense, during the Term for the Permitted Purposes, according to the terms set out herein. All other uses are prohibited. b. The WinSpeed Software may include third party software components. The third party software terms will govern Licensee’s use of the third party software, and if there is inconsistency, those terms will take precedence over the terms of this Agreement for the third party software. Licensee agrees that the owners of the Third Party software are intended third party beneficiaries to this Agreement in relation to Licensee’s use of third party software. c. Licensee agrees to accept full responsibility for all activities that occur in relation to its use of the WinSpeed Software. If any unauthorized person obtains access to the WinSpeed Software as a result of any act or omission by Licensee or its 3 member, Licensee shall use its best efforts to ascertain the source and manner of access and shall fully and promptly notify AU.
3. NEW VERSIONS AND SUPPORT
During the Term of this Agreement, Licensee may, at AU’s election, be allowed to access future versions of the WinSpeed Software, but AU has no obligation to make new versions available or to continue to make the current versions available in the future. Any and all such versions which may be made available by AU are subject to the terms and conditions of this Agreement. AU also has no obligation under this Agreement to provide ongoing support of any kind for the WinSpeed Software and/or Sites. 4. RESTRICTIONS a. Licensee agrees that it will not assign, sublicense, transfer, pledge, lease, rent, loan, or share its rights under this Agreement. b. Licensee agrees that it will not use the WinSpeed Software, WinSpeed Data, AU’s Confidential Information or AU’s Intellectual Property for any other purpose than the Permitted Purposes. c. Licensee agrees it will not (i) modify, augment, translate, reverse engineer, disassemble or decompile the WinSpeed Software; (ii) create or attempt to create any derivative works of the WinSpeed Software or Documentation; or, (iii) permit or assist others in performing any of the foregoing. d. Licensee agrees it will use the WinSpeed Data only for Permitted Purposes and will not modify, manipulate, scrape, data mine, merge into other files or formats, or otherwise use or transmit the WinSpeed Data. e. Apart from installation of the WinSpeed Software pursuant to the license granted by this Agreement, Licensee is prohibited from making copies of the WinSpeed Software, except that it is permitted to make a copy of any locally executed WinSpeed Software as part of a regularly scheduled incremental or full backup procedure. Licensee may make copies of the Documentation as is reasonably necessary to fulfill the aims of this Agreement. f. Licensee agrees to use reasonable security practices and to not use the WinSpeed Software or Sites in any manner which could damage, disable, corrupt, hijack, overburden, or impair the Sites or interfere with or monitor any other party's use and enjoyment of the Sites. g. Licensee may not utilize AU’s Intellectual Property in any manner inconsistent with this Agreement, including but not limited to using or displaying any AU trademarks in any manner without AU’s prior written consent.
5. PRIVACY POLICY AND PUBLICITY
4 AU shall be allowed to post or otherwise publish Licensee’s name and likeness, including images of Licensee’s members, representatives, agents, family members and guests at racing events for publicity and promotional purposes unless Licensee notifies AU in writing that it does not wish for its name or likewise to be used.
6. TERM AND TERMINATION
a. Subject to receipt by AU of full payment of the required amounts, this Agreement will commence upon the Effective Date and shall continue for the Term unless earlier terminated. b. This Agreement can be renewed for additional periods by mutual consent of the parties as evidenced by written notice (to include electronic communication of same), and payment by Licensee of the current required fees. c. AU may terminate this Agreement at any time. Without limiting the foregoing, AU shall have the right to immediately terminate in the event of any conduct by Licensee which AU, in its sole discretion, considers to be unacceptable, or in the event of any breach of this Agreement by Licensee or its members. The provisions of Sections 4, 5, 7, 8, 9, and 10 will survive termination of this Agreement for any reason.
7. WAIVER OF CLASS ACTION
To the fullest extent allowed by law, Licensee waives any rights to trial by jury and agrees not to bring or participate in a class action, private attorney general action or any other similar litigation.
8. GOVERNING LAW AND DISPUTE RESOLUTION
This agreement will be governed by and construed in accordance with the laws of the State of Oklahoma, U.S.A. without giving effect to any conflict of laws and provisions that would require the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed and shall not apply to this Agreement. This Agreement will be subject to the exclusive jurisdiction of the state and federal courts serving Oklahoma County, Oklahoma, U.S.A., and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.
9. INDEMNIFICATION/RELEASE
Licensee agree to indemnify, defend and hold harmless AU, and its officers, directors, employees, agents and representatives of any of them from any and all claims, losses, obligations, damages, liabilities, costs or debt and expenses (including attorney’s fees) arising out of (i) Licensee’s use or misuse of the WinSpeed Software, Sites or any other AU services; (ii) Licensee’s violation of these Terms; and (iii) Licensee’s breach of the representations, warranties, and covenants herein. AU reserves the right, at Licensee’s expense, to assume the 5 exclusive defense and control of any matter for which Licensee is required to indemnify AU, and Licensee agrees to cooperate with AU’s defense of such claims. Licensee agrees not to settle any matter without the prior written consent of AU. Each party will use reasonable efforts to notify the other of any such claim, action or proceeding upon becoming aware of it.
10. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
Licensee acknowledges that there are risks inherent in the use of the WinSpeed Software, Sites, and internet connectivity that may result in interruptions or errors, loss of privacy, confidentiality, information or property, as well as other losses, damages or adverse occurrences, regardless of the measures taken to avoid such occurrences. The Sites may be unavailable from time to time for any reason including, without limitation, routine maintenance. You understand and acknowledge that access to the Sites may be interrupted, suspended or terminated The WinSpeed Software, Sites, Documentation, and any other materials or services provided to Licensee by AU pursuant to this Agreement are provided on an “as-is” basis and with all faults. AU disclaims all warranties of any type or kind, whether express or implied. AU EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND INFRINGEMENT PURSUANT TO THE UNIFORM COMMERCIAL CODE AND ANY OTHER APPLICABLE LAW. In no event will AU be liable for any losses or damages incurred by Licensee, whether direct, indirect, incidental, special, exemplary or consequential, loss of information, the cost of recovering such lost information or any other pecuniary loss arising from the use of, or the inability to use, the WinSpeed Software, Sites. AU’s aggregate liability in respect of any and all claims will be limited to the license fees paid by Licensee to AU pursuant to this Agreement. The foregoing limitations apply regardless of the cause or circumstances giving rise to such loss, damage or liability, even if such loss, damage or liability is based on negligence or other torts or breach of contract. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
11. FORCE MAJEURE
AU shall not be responsible for any delays, failures or outages arising out of causes beyond its reasonable control. Such causes may include, but are not restricted to, acts of God or of the public enemy, fires, floods, epidemics, riots, quarantine restrictions, strikes, earthquakes, electrical outages, computer or communications failures, severe weather, and acts or omissions of subcontractors or third parties.
12. SEVERABILITY
6 If, after the date hereof, any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term of this Agreement, such provision shall be fully severable. In lieu thereof, there shall be added a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
13. NO WAIVER
Any failure by AU to enforce any provisions of this Agreement or to respond to a breach by Licensee or other parties shall not in any way waive its right to enforce subsequently any terms or conditions of this Agreement or to act with respect to similar breaches.