LAST UPDATED: June 1, 2022
Mivation Inc. (“Mivation”), licenses and permits you to use the Racing Snail® Production Management, Performance Management and Compensation Software (“RacingSnail System”), the Leaderboard Legends™ Competition, Recognition, Gamification, Broadcasts, and Records Software (“Leaderboard Legends System”). The RacingSnail System and the Leaderboard Legends System are hereinafter collectively referred to as the “System” under the terms and conditions set forth below.
1. THE SYSTEM
The System is provided with the understanding that neither Mivation, nor its business partners, shareholders, officers, directors, employees, agents, representatives, consultants or agents are engaged in rendering legal, financial, insurance or other professional services or advice. Your use of the System is subject to the additional disclaimers and caveats that may appear throughout the System.
Mivation and its agents assume no responsibility for any consequence relating directly or indirectly to any action or inaction that you take or fail to take based on the information, services or other material on this System or the results displayed or provided. While Mivation strives to keep the information, functions, features, calculations and algorithms on this System accurate, complete and up to date, Mivation and its shareholders, officers, directors, programmers, contributors, or suppliers cannot guarantee, and will not be responsible for any damage or loss related to, the availability, accuracy, completeness or timeliness of the information or the System. It is possible that the System could become unavailable at any time without notice or include inaccuracies or errors, and that unauthorized additions, deletions and alterations could be made to the System. You agree to notify Mivation of these problems if you discover them.
4. ACCOUNT, PASSWORD, AND SECURITY
You are solely responsible for maintaining the security of your username and password. You may not disclose your username or password to any third party (other than third parties authorized by you to use your account in accordance with this Agreement) and are solely responsible for any use of, or action taken under, your password. If your password is compromised, you must immediately change your password.
From time-to-time Mivation authorized personal may log into the System under your username and password in order to maintain or improve service, including to assist you with technical or billing issues. You hereby acknowledge and consent to such access.
Mivation accepts payment via a valid credit or debit card for recurring monthly or recurring annual subscriptions. Monthly subscription fees are charged monthly on the day of the original purchase date for service starting the following month. Annual subscriptions are charged annually on the day of the original purchase date for service starting the following year.
Unless timely terminated by you, you agree that recurring fees will be processed in accordance with this Agreement and you authorize Mivation to automatically bill your credit or debit card in accordance with this Agreement for the then-current subscription fees. The prices for renewals may be different than those paid for a prior subscription. Mivation shall not be responsible for any expenses you may incur as a result of overdrawing a bank account or exceeding a credit limit as a result of an automatic charge pursuant to this Agreement.
You agree to notify Mivation promptly of any changes to your credit card account number, its expiration date and/or your billing address, and you agree to notify Mivation promptly if your credit card expires or is canceled for any reason. In the event the credit card information is deemed invalid and another automatic payment option for all recurring charges is not set up prior to the charge date, access to the System may be deactivated.
If your account is suspended for non-payment, it will only be reactivated upon payment, in full of all overdue fees. Your subscription will not be activated or reactivated without prior payment.
Mivation does not issue refunds once an order is received. You must notify us of your intent to cancel at least 10 days before the end of your subscription period. Upon cancellation by you, the right to use the System will stop at the end of your paid subscription period. You may not have access to data that you stored on the System after cancellation of your account. You are responsible for backing up your data that you enter into the System.
7. TERMINATION OR SUSPENSION BY MIVATION
Mivation may terminate or suspend the System or your access to the System at any time and for any reason without notice. Upon such termination or suspension, your right to use the System will stop immediately. You may not have access to data that you stored on the System after suspension or termination of the System or your account. You are responsible for backing up your data that you enter into the System.
If your account is canceled in its entirety without cause by Mivation, you will receive a refund on a pro-rata basis the amount of your payment corresponding to the portion of your service remaining right before termination of the System or your account.
The System allows you to enter certain data for the purpose of obtaining various reports and information created by the System using various proprietary calculations and algorithms. You are solely responsible for the data you enter into the System and its accuracy. Mivation is not responsible for, nor does Mivation guarantee, the integrity, quality, accuracy, truth, ownership or lawfulness of the data or any part thereof. You represent and warrant that:
9. DATA ENTRY AND TRANSMISSION
All information provided to Mivation is transmitted using SSL (Secure Socket Layer) encryption. SSL is a proven coding system that lets your browser automatically encrypt or scramble data before you send it to us. Mivation also protects account information by placing it in a secure location that is only accessible by appropriate Mivation personnel.
Entry of any user or third-party highly sensitive personal information into the System is strictly prohibited. Examples of highly-sensitive information include, but are not limited to, the following: Social security numbers (or in Canada, social insurance numbers) and tax identification numbers; Driver’s license numbers; Financial / card account numbers; Passwords / PINs; Dates of birth; Digital or electronic signatures; Mother’s maiden names; Biometrics (e.g., voiceprints); Medical information; Health Policy information, including an individual’s health insurance policy number or subscriber identification number. Accounts and/or data found in violation of this restriction are subject to deactivation or removal.
10. DATA LICENSE
You hereby grant Mivation a worldwide, transferable, nonexclusive, royalty-free license and right to use, modify, store, create derivative works of, and copy any data you provide to Mivation or enter into the System, in all media existing now or created in the future, as Mivation deems appropriate in its sole discretion. Mivation may sublicense the rights granted to it in this section to a third-party subcontractor where Mivation deems it necessary or advisable to facilitate Mivation’s services. Mivation reserves the right to excerpt data, compile data, aggregate data and make minor modifications to the data for technical or marketing reasons.
11. DIGITAL MILLENNIUM COPYRIGHT ACT
If you are a copyright owner or an agent thereof, and you believe that any content hosted on the System infringes your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) to:
1312 N Monroe St
Spokane WA 99201
Your notice must contain:
Please note that under Section 512(f) of the DMCA, any person who knowingly misrepresents that material or activity is infringing may be subject to liability.
12. PROPRIETARY MATERIALS AND RIGHTS
This System contains proprietary materials, such as programming code, algorithms, calculations, mathematical formulas, text, photographs, video, graphics, music, sounds or other materials, as well as trademarks, service marks, and trade dress of Mivation (hereinafter, the “Proprietary Materials”). All Proprietary Materials on this System (as well as the organization and layout of the System and its output) are owned and copyrighted, licensed by, and used with permission by Mivation, its affiliates or its business partners. No reproduction, distribution, or transmission of the copyrighted materials of this System is permitted without the prior written permission of Mivation.
All Proprietary Materials contained on the System are protected by law from unauthorized use. Mivation owns a copyright in the certain Proprietary Materials embodied in the System, as well as the entire contents of the System, including public domain content, which are protected as a collective work under the U.S. copyright laws. Mivation owns a copyright in the selection, coordination, arrangement and enhancement of all System content. These rights are valid and protected in all forms, media and technologies existing now or hereafter developed.
RACING SNAIL®, the RACING SNAIL logo, LEADERBOARD LEGENDS™, the LEADERBOARD LEGENDS logo and other trademarks, logos, product and service names used in association with the System (the “Marks”) are trademarks and service marks owned by or licensed to Mivation. You agree not to display or use in any manner the Marks without the prior express written permission of Mivation,
If you elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to Mivation in connection with or related to the System (including any related technology), Mivation will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner it chooses and without any compensation to you. You agree that Mivation has no obligation to keep any suggestions or ideas confidential and you hereby release any and all claims or liability against Mivation relating to the same.
13. PROHIBITED USES AND COPYRIGHT INFRINGEMENT
The System is offered through a secure website only. You may not attempt to access the System through fraudulent or deceptive means or the use of account information and passwords not authorized by Mivation. You may not attempt to circumvent the username and password requirements or any other security measures in effect on the System. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, or create derivative works from the System or sell any information, results, products or services obtained through or from the use of the System. If and when requested by Mivation, you agree to provide true, accurate and complete information. You agree not to impersonate or falsely represent your affiliation with any person or entity. Except with the express permission of Mivation, you agree not to access or attempt to access password protected, secure or non-public areas of the System. Unauthorized individuals attempting to access prohibited areas of this System may be subject to prosecution.
You may not without the prior written permission of Mivation (a) use any computer code, data mining software, “robot,” “bot,” “spider,” “scraper” or other automatic device, or program, algorithm or methodology having similar processes or functionality, or any manual process, to decompile, reverse engineer, monitor or copy any of the System, algorithms, formulas, data or content found on the System or accessed through the System; (b) attempt to unlock or bypass any initialization system or encryption technique within the System; (c) write or develop any other software program by using or which is based upon any Proprietary Materials; or (d) provide, disclose, divulge, or make the System available to, or permit use of the System by any third party, or any party for any unlicensed use. Your access and use of the software within the System is restricted to machine-readable, executable, object-code or bytecode form only
14. NO UNLAWFUL OR PROHIBITED USE
As a condition of your use of this System, you warrant to Mivation that you will not use this System for any purpose that is unlawful or prohibited by these terms, conditions and notices. If you violate any of these terms, your permission to use the System automatically terminates.
Mivation has the right to monitor your access to the System, your data, and your communications with Mivation and others through the System. Mivation reserves the right to remove any data that it determines, in its sole discretion, violates this Agreement. In order to cooperate with governmental requests, to protect the System, and to ensure the integrity and operation of the Systems, Mivation may access and disclose to others any information its considers necessary or appropriate, including, but not limited to, user contact details, IP addresses and traffic information, usage history and posted content.
15. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
16. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT MIVATION, ITS SHAREHOLDERS, OFFICERS, DIRECTORS, AFFILIATES, EMPLOYEES, CONTRACTORS AND AGENTS (“MIVATION PARTIES”), SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MIVATION PARTIESHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SYSTEM; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY TRANSACTIONS ENTERED INTO OR RESULTS PROVIDED BY THE SYSTEM;(iii) ANY OTHER MATTER RELATING TO THE SYSTEM OR THE SERVICES, INCLUDING SYSTEM CONTENT OR CALCULATIONS OR FORMULAE OR ALGORITHMS OR INFORMATION CONTAINED WITHIN THE SYSTEM OR (iv) MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO RECORDS, PROGRAMS OR SERVICES. YOU HEREBY ACKNOWLEDGE THAT THIS PARAGRAPH SHALL APPLY TO FUNCTIONS AND PROCESSES AND INFORMATION AVAILABLE THROUGH THE SYSTEM.
You agree to indemnify, defend and hold harmless Mivation, its contributors, affiliates and suppliers from any liability, loss, claim and expense (including reasonable attorneys’ fees) related to your breach of this Agreement or your use of the System.
18. THIRD PARTY SERVICES AND SITES
19. CHANGES TO SYSTEM AND THIS AGREEMENT
Mivation, its contributors, affiliates and/or its suppliers may make improvements or changes in the information, services, products, and other materials on the System, in whole or in part, at any time without notice. The System may become unavailable at any time, with or without notice. Mivation may discontinue offering or supporting the System altogether at any time, with or without notice. Mivation may modify this Agreement at any time, and such modifications shall be effective immediately upon posting of the modified Agreement on Mivation website or other portal. Accordingly, you agree to review this Agreement periodically, and your continued access or use of this System shall be deemed your acceptance of the modified Agreement.
All notices required or permitted under this Agreement shall be in writing and shall be sent by Postal Service Certified Mail with a copy via e-mail to the address set forth below:
1312 N Monroe St
Spokane WA 99201
This Agreement and the resolution of any dispute related to this Agreement or the System shall be governed by and construed in accordance with the laws of Delaware, without giving effect to any principles of conflicts of law. Failure by Mivation or its affiliates to insist upon strict enforcement of any provision of this Agreement shall not be construed as a waiver of any provision or right. You agree that regardless of any statute or law to the contrary, any claim or cause of action by you arising out of or related to use of the System or your rights under this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. Any legal action or proceeding between Mivation, and/or its contributors or affiliates and you related to this Agreement shall be brought exclusively in a federal or state court of competent jurisdiction sitting in the State of Washington, County of Spokane. No waiver of any breach of any provision of the Agreement will constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision of the Agreement is, for any reason, held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions will remain in full force and effect. If any provision of the Agreement is, for any reason, determined by a court of competent jurisdiction to be excessively broad or unreasonable as to scope or subject, the provision will be enforced to the extent necessary to be reasonable under the circumstances and consistent with applicable law while reflecting as closely as possible the intent of the parties as expressed herein. The headings, subheadings, and other captions in the Agreement are for convenience and reference only and will not be used in interpreting, construing, or enforcing any of the terms of the Agreement. You and Mivation are independent contractors under the Agreement, and nothing herein will be construed to create a partnership, joint venture, franchise or agency or fiduciary relationship between you and Mivation.