(a) This is an Agreement between MyRace Websites Pty Ltd ACN 631 006 383 (MyRace, we, our, us and other similar term) and you (you, your and other similar terms).
(b) MyRace provides a platform whereby you can set up your own Race Profile to promote your racing endeavours.
(a) By using the Website or subscribing to our Services, you agree to:
(i) comply with and be bound by the terms and conditions of this Agreement.
(ii) pay the amounts in relation to the hosting of your Race Profile.
(b) These terms are binding on any use of the Website and apply from the time you first access the Website.
(c) It is your obligation to ensure that you have read, understood and agree to the most recent terms available on the Website.
(d) We may amend this Agreement at any time by posting with 14 days’ notice the new terms and conditions on the Website.
(e) Any terms of this Agreement at the time you conclude the purchase of a Race Profile Subscription is the version which will apply to that transaction.
Please email us at firstname.lastname@example.org if you have any questions relating to these terms and conditions.
Unless the terms and conditions of the Agreement explicitly state otherwise, expressions used in the Agreement have the following meanings:
Account means the End User account to use the Service.
Agreement means the legally binding contract arising between the parties set out herein.
Confidential Information means information that is by its nature confidential, including but not limited to information relating to the:
(a) personnel, policies, practices, clientele or business strategies of the parties;
(b) Intellectual Property Rights of either party;
but does not include information:
(c) already rightfully known to the receiving party at the time of disclosure by the other party; or
(d) in the public domain (including information made publicly available via a mechanism in the Software) other than as a result of disclosure by a party in breach of its obligations of confidentiality under the Agreement.
End User means an individual who is granted access to create and modify a Race Profile.
GST means goods and service tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property Right means all present and future rights conferred by statute, common law or equity in or in relation to business names, circuit layouts, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.
Non-Excludable Condition means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded.
Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).
Privacy Law means:
(a) the Privacy Act 1988 (Cth); and
(b) any code registered under the Privacy Act 1988 (Cth) or Australian Privacy Principles.
Race Profile means the web pages we host for you on the Website.
Representative includes an employee, agent, officer, director, auditor, advisor, researcher, partner, consultant, contractor, sub-contractor or related entity of that person or of a related body corporate of that person.
Service means the service provided by way of MyRace’s Software which allows End Users to set up a Race Profile hosted and presented via the internet by us.
Software means the cloud-based online Race Profile hosting platform owned and designed by MyRace.
Submitted Materials means any material including documents, information or data provided by you to MyRace in connection with your Race Profile.
Subscription means a license purchased for the End User to access and use the Service.
Subscription Fee means any amount payable by you to MyRace in connection with this Agreement as stipulated by MyRace from time to time and set out on the Website at the time of signing up to or renewing your Subscription to the Service.
Subscription Period means the period of time an End User may access the Service and have their Race Profile hosted via the Software as selected by you when you subscribe to the Service.
Unforeseen Event means an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, a ransomware attack or other malicious code.
This Agreement will commence on the day you subscribe to the Service and will continue:
(a) for the Subscription Period; or
(b) until the date of termination of this Agreement in accordance with clause 14.
(a) If this Agreement is not terminated at least 14 days prior to the expiry of the then current Subscription Period, this Agreement will automatically renew for a period equal to the current Subscription Period.
(b) You may cancel your Subscription at any time via your account page. The cancelation will come into effect at the end of the then current Subscription Period.
(a) You will pay MyRace the Subscription Fee for use of the Service at the beginning of each Subscription Period.
(b) All Subscription Fees are inclusive of GST.
MyRace may amend the Subscription Fee at any time by providing 28 days’ notice by publishing the new Subscription Fee on the Website.
You are solely responsible for providing evidence of being GST exempt, which in our sole discretion we deem acceptable, before any Software is provided on a GST exempt basis.
During the term of the Agreement, you must:
(a) use the Services in accordance with the Agreement solely for promoting your own racing and sporting endeavours;
(b) not resell or make available the Services to any third party, or otherwise commercially exploit the Services;
(c) not make derogatory comments about third-party advertisers whose material is presented via the Software;
(d) not to publish or otherwise communicate any review of, or information about, the Services (which is not publicly available) to any third party without the prior written consent of MyRace, except as specifically provided for in an agreement with MyRace, including this Agreement;
(e) strictly comply with clause 7 (Submitted Material);
(f) keep your username and password secure and protect your account from unauthorised access, use or damage;
(g) keep your own backups of any Submitted Material;
(h) maintain accurate and up to date contact details on your account page; and
(i) actively monitor your Subscription, including, where you desire it, cancelling your account at least 14 days prior to the end of the Subscription Period.
MyRace reserves the right to limit or suspend you or an End User’s access to the Services if you or the End User is in breach of clause 6.1.
(a) You must not submit or cause to be submitted to MyRace whether in text or graphic format, any content:
(i) in breach of any advertising code or regulation operating in Australia;
(ii) promoting the use of alcohol, tobacco or illegal substances;
(iii) which includes nudity, sex, pornography, or adult-oriented content;
(iv) which includes explicative or inappropriate language;
(v) which is misleading or deceptive or likely to mislead or deceive;
(vi) you do not own or have the right to use;
(vii) any confidential information of any third party without the express consent of the third party;
(viii) which is illegal, unlawful, improper, harmful, threatening, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful, or otherwise objectionable;
(ix) promoting illegal activity, racism, hate, pyramid schemes;
(x) that infringes the Intellectual Property Right of a third party; or
(xi) any other content deemed inappropriate by MyRace in its sole discretion.
(b) You grant MyRace a non-exclusive, royalty free license to use any material submitted by you to your Race Profile.
This clause will survive the termination of this Agreement.
(a) All title, ownership rights and Intellectual Property Rights, including copyright in relation to the Service and the Software is owned or used under licence by MyRace.
(b) Without MyRace’s express prior written consent, you must not and will not permit any person to:
(i) directly or indirectly alter, replicate, copy, recreate, create derivative work from, decompile, reverse engineer, reverse assemble, reverse compile, enhance, interfered with or with part of the Services and/or the Software or otherwise obtain, modify or use any source or object code, architecture, or algorithms contained in the Software or any documentation associated with the Service or the Software;
(ii) interact with any MyRace trade mark (whether registered or not) that could cause any adverse effect to MyRace’s ownership and/or rights to the Intellectual Property;
(iii) copy or reproduce, or create an adaptation or translation of, all or part of the Software in any way, except to the extent that reproduction occurs automatically through the ordinary use of the Software;
(iv) incorporate all or part of the Software in any other webpage, site, application or other digital or non-digital format;
(v) (subject to other rights explicitly granted under this Agreement) sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party, whether for profit or without charge, any portion of the Software on any medium;
(vi) do anything that will infringe the Intellectual Property Rights of any third party; or
(vii) attempt to do any of the above.
Nothing in this Agreement will transfer ownership of the Submitted Material to MyRace.
If you become aware of any infringement or threatened infringement of any Intellectual Property Rights, you must give notice to MyRace including full particulars of the infringement. MyRace may, in its absolute discretion, institute and prosecute an action against the infringer.
You must execute all documents and do all things reasonably necessary to aid and co-operate in the prosecution of any actions brought by MyRace under this clause.
The operation of this clause survives the termination of this Agreement.
(a) You acknowledge and agree MyRace requires the Software to be hosted by a third party.
(b) MyRace reserves the right to nominate a different server at any time in its sole discretion.
You acknowledge and agree that the Software will only be accessible using the Internet (or other connection to third party servers) and will not be available “locally”.
You acknowledge and agree that the Software is operated from servers owned and controlled by a third party. As such, certain functions are out of MyRace’s control, including hardware maintenance, network administration, data storage, backups and disaster recovery.
MyRace reserve the right to upgrade, maintain, tune, backup, amend, add to or remove items from, redesign, improve or otherwise alter the Services (including offering new Services) at its sole and absolute discretion.
(a) MyRace reserves the right to, and will, include third party advertising on any page presented via the Software, including on pages which present your Race Profile.
(b) Third-party advertisers will change from time to time at MyRace’s sole discretion.
(c) It is your sole responsibility to ensure any sponsorship or similar agreements you have with third parties do not put you in breach as a result of the advertising MyRace presents.
From time to time, without notice, access to all or part of the Services may be disrupted or limited. During such an interruption, MyRace will use reasonable endeavours to restore access to the Services as soon as practicable.
(a) reserves the right to make some or all of the Services inaccessible from time to time as required for upgrades, maintenance and updates.
(b) will use reasonable endeavours to provide you with advance notice, via our Website, of any inaccessible period but you accept that this may not always be possible.
(c) is not liable for any harm or damage you may suffer during either intentional or unintentional interruptions.
(a) You acknowledge and agree that there may be technical or administrative errors in the information on the Software.
(c) MyRace reserve the right to do any of the following, at our absolute discretion, without notice:
(i) correct any errors in the Software; or
(ii) update the Software;
MyRace will take reasonable steps to ensure that the Software is secure from unauthorised access consistent with generally accepted industry standards.
MyRace provides support and maintenance in respect of the Services via email (email@example.com).
The inclusion of any third-party link does not imply any endorsement or recommendation of a linked website by MyRace. MyRace will not be responsible for any third-party advertising content displayed on the interface of the Software. Any link on the Software to a third-party website, or decision to accept any third party offer, is entirely at your own risk.
Subject to the obligations of MyRace in respect of the provision of the Services under this Agreement, MyRace makes no warranties or guarantees:
(a) the Software and/or Services will be accessible at all times, uninterrupted or error free;
(b) any of the Software is without bugs or viruses;
(c) any of the technical information is without error or inaccuracy;
(d) the Software is immune to unauthorised access or security breach; or
(e) in respect of the retention of, or continued accessibility of, any data.
Each party represents and warrants to the other:
(a) it has full power and authority to execute this Agreement and observe and perform all of its obligations;
(b) it is not aware of any thing, matter or circumstance which may prevent it from fulfilling its obligations under this Agreement; and
(c) it is not insolvent and no receiver, receiver and manager, provisional liquidator, liquidator or other officer of the court has been appointed in relation to all or any of its affairs or material assets.
We exclude all implied guarantees, conditions and warranties from this Agreement except any Non-Excludable Condition.
(a) To the maximum extent permitted by law, we exclude all liability for any negligence or other losses suffered or incurred directly or indirectly, including in connection with:
(i) computer virus, trojan and other malware;
(ii) security vulnerabilities in the Software or any breach of security that results in unauthorised access to, or corruption of data;
(iii) your breach of this Agreement; or
(iv) any act or omission by you or any End User you grant access to the Service.
(a) Where a Non-Excludable Condition is deemed to apply, to the fullest extent possible under the law, we limit our liability for any breach to:
(i) in the case of goods: the re-supply of the goods or payment of the cost of the re-supply of the goods; or the replacement or repair of the goods or payment of the cost of replacement or repair of the goods; and
(ii) in the case of services: the resupply of the services; or the payment of the cost of having the services resupplied.
You indemnify and will keep MyRace and its Representatives indemnified against all liability arising from claims for your or your End User’s:
(a) libel, slander, defamation, product disparagement or indecent, false, misleading or deceptive conduct;
(b) breach of clause 6 (Your Obligations);
(c) breach of clause 7 (Submitted Material);
(d) infringement of Intellectual Property Rights;
(e) piracy, counterfeiting, plagiarism, or unfair competition;
(f) invasion of the right of Privacy; and
(g) provision of incorrect, fraudulent or false information.
(a) Either party may terminate this Agreement by providing the other party 14 days’ notice.
(b) If this Agreement is terminated in accordance with this clause 14.1, this Agreement will terminate at the expiry of any then current Subscription Period.
MyRace may terminate this Agreement immediately by notice to you if you commit any breach of any of your obligations under this Agreement and:
(a) the breach is incapable of being remedied;
(b) if the breach is capable of being remedied, you have failed to remedy the breach within 14 days after the receipt of the notice; or
(c) you have been issued a notice of breach more than three times during a 12 month period.
On termination of this Agreement:
(a) your right to use the Service will end immediately;
(b) you will no longer have access to your account, Race Profile or Submitted Material;
(c) MyRace will no longer present your Race Profile via the Service; and
(d) we may at our sole discretion delete your account, Race Profile and any Submitted Material.
(a) Subject to clause 15.1(f), any dispute which arises between the parties in connection with this agreement (Dispute) must be dealt with in accordance with the requirements of this clause 15, before either party will be entitled to commence proceedings against the other party in respect of the Dispute.
(b) The party claiming that a Dispute has arisen (Complainant) must give the other party a written notice setting out a detailed explanation of the nature of the Dispute and what action the Complainant thinks will resolve the Dispute (Dispute Notice).
(c) Within 10 business days of the Dispute Notice being received by the other party, a nominated person with complete authority to resolve the Dispute must meet, act in good faith and use best endeavours to resolve the Dispute at that meeting, or such subsequent meetings as may be reasonably required.
(d) If the Dispute is not resolved pursuant to clause 15.1(c) within 30 days of the Dispute Notice being received by the other party, the parties agree to attend a privately held mediation with a mediator appointed by the nominated senior executive or both parties and in the absence of agreement within 7 days of disagreement by such mediator as appointed by the President, or person in like office of the Resolution Institute.
(e) If the Dispute is not resolved within 30 days of the mediation anticipated in clause 15.1(d) then either party may commence proceedings against the other party in respect of the Dispute.
(f) Nothing in this clause 15 prevents a party from seeking urgent injunctive or similar relief from a court.
The Dispute resolution procedure set out in this clause 15 will not apply in any instance where we seek to enforce a debt in connection with this Agreement.
(a) A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
(b) A party will not be in breach of this confidentiality clause in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
(c) Notwithstanding any other provision of this clause, a party may disclose the terms of the Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
(d) Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of the Agreement, do not make public or disclose the other party’s Confidential Information.
A party must notify the disclosing party in writing, giving full details known to it immediately, when it becomes aware of any actual, suspected, likely or threatened:
(a) breach by any person of any obligation in relation to the Confidential Information; or
(b) theft, loss, damage, or unauthorised access use or disclosure of or to any Confidential Information.
The obligations under this clause 16 survive termination of the Agreement.
(a) You may only assign, encumber, declare a trust over or otherwise create an interest in your rights under this document with the consent of MyRace.
(b) MyRace may assign, encumber, declare a trust over or otherwise create an interest in our rights under this document without your consent, and may disclose to any potential holder of the right or interest any information relating to this document or any party to it.
Where this Agreement states that the consent or approval of MyRace is required, MyRace may: give or withhold that consent or approval in its absolute discretion; and give that consent or approval subject to conditions, unless this Agreement expressly states otherwise.
The laws of Queensland, Australia govern this Agreement. The parties submit to the non‑exclusive jurisdiction of courts exercising jurisdiction there.
Any communication under or in connection with this Agreement must be in writing and sent to:
(a) where the notice is addressed to you, the email address you specify on your account; or
(b) where the notice is sent to us, to our email address (firstname.lastname@example.org).
(a) This document contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.
(b) Any right that a person may have under this document is in addition to, and does not replace or limit, any other right that the person may have.
(c) Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change the intended effect of this document.
Nothing in this Agreement is intended to create or be construed as creating a relationship of agency, joint venture or partnership between any of the parties. No party may act as agent of or in any way bind another party to any obligation.
Neither party has entered into any contract under this Agreement in reliance on or as a result of any representation, promise, statement, conduct or inducement by the other otherwise than as set out in this Agreement.
If a party is affected by an Unforeseen Event, they must immediately notify the other party of the circumstances. The parties’ obligations under this Agreement are suspended for the duration of and to the extent they are affected by the Unforeseen Event. However, either party may end this Agreement if the Unforeseen Event continues for more than 30 days.
A right may only be waived in writing, signed by the party giving the waiver, and:
(a) no other conduct of a party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right;
(b) a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and
(c) the exercise of a right does not prevent any further exercise of that right or of any other right.
Unless the terms and conditions of the Agreement explicitly state otherwise, the Agreement will be interpreted as follows:
(a) a reference to a party includes that party’s permitted assigns, administrators, successors, executors, legal representatives and any novated party;
(b) any reference to a trustee includes any substituted or additional trustee;
(c) unless used for the usual grammatical purpose, inverted commas around a term indicate industry jargon that will be interpreted according to how that term would be understood by an individual with expertise in the relevant industry;
(d) “including”, “includes” or any derivation of those words does not limit the matter in question to the things specifically mentioned in the applicable context;
(e) where a term is defined, other grammatical forms of that term will be taken to have the same meaning;
(f) headings are for convenience and will not affect interpretation;
(g) words in the singular will be taken to include the plural and also the opposite;
(h) “$” means the Australian dollar;
(i) a reference to a document will be to that document as updated, varied or amended;
(j) a document referenced by the Agreement will not take precedence over the referencing document;
(k) when any kind of legislative instrument is referenced, the reference will be taken to be that instrument as updated or substituted for by the legislative body in any way;
(l) any referenced digital resource may be replaced with another digital resource that is a “copy” of the original resource;
(m) a reference to a party’s conduct includes omissions as well as acts; and
(n) if a party is described as having discretion in a matter, the discretion in that matter will be interpreted as sole and absolute.