RACK PERFORMANCE - STANDARD TERMS AND CONDITIONS

Last Update: December 8, 2016

PLEASE READ THESE RACK PERFORMANCE STANDARD TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SERVICES. USE OF THE SERVICES IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH BELOW. USE OF THE SERVICES DURING A TRIAL PERIOD WILL BE GOVERNED BY THIS AGREEMENT.

This Rack Performance Standard Terms and Conditions agreement (“Agreement”) is by and between Rack Performance, LLC, a Kansas limited liability company, (“Rack Performance”) and any person, entity, organization, or institution purchasing access to the Services (“Customer”). Each of Rack Performance and Customer will be referred to in this Agreement individually as a “party” and together as the “parties.”

Customer may not use the Services if Customer is a direct competitor of Rack Performance. Additionally, Customer may not access the Services for the purpose of monitoring the Services’ availability, performance, functionality, or for any other benchmarking or competitive purpose.

Rack Performance reserves the right to change, modify, add, or remove portions of this Agreement. Rack Performance will post notice of modifications to this Agreement on this page and will also attempt to notify Customer through Customer’s Rack Performance account and the email address that was provided during registration of any changes to this Agreement. Changes will become effective immediately but will not apply retroactively. Customer should immediately discontinue use of the Services if Customer does not agree to the modified Agreement.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT.

  1. DEFINITIONS.
    1. “Authorized End User” means any individual who is: (a) a Student Athlete; or (b) Staff.
    2. “Order Form” means a written sales or purchase order for the Services in a form acceptable to Rack Performance and referencing this Agreement.
    3. “Services” means the subscription services for access to and use of the Rack Performance online workout manager, roster manager, any other product or service provided by Rack Performance, and the associated user documentation and supplemental materials.
    4. “Staff” means any individual who is a teacher, coach, staff, or employee employed by Customer.
    5. “Student Athlete” means an individual who is a student athlete of Customer.
    6. “Terms of Use” means the terms of use agreement located at https://rackperformance.com/ which is hereby incorporated into and made a part of this Agreement by this reference as if fully set forth herein.
  2. SCOPE. Customer will order and Rack Performance agrees to provide the Services to Customer and its Authorized End Users in accordance with the terms and conditions of this Agreement and as set forth in an Order Form. The Services are licensed, not sold, on a subscription basis.
  3. ORDERING. Customer will procure licenses to the Services using an Order Form that references this Agreement and which will be binding upon Rack Performance and Customer upon Rack Performance’s acceptance of such Order Form. Rack Performance specifically disclaims terms and conditions contained in any purchase order, statement of work, or similar document issued by Customer that is not executed by Rack Performance and any such other document will have no legal effect. In the event of a conflict between the terms and conditions of this Agreement and those of an Order Form, the terms and conditions of this Agreement will control; provided, however, that to the extent any Order Form includes terms and conditions not addressed in this Agreement or not in conflict with the terms and conditions of this Agreement, then such terms and conditions will supplement and be a part of this Agreement. Notwithstanding the foregoing, an Order Form may not be used to amend any term or condition of this Agreement.
  4. THE SERVICES.
    1. Authorized End Users.
      1. The terms and conditions related to Customer’s and an Authorized End User’s use of the Services are provided in the Terms of Use. Access to the Services are provided on a subscription basis, the term of which will be set forth in an Order Form, to Customer and Customer’s Authorized End Users.
      2. Each Authorized End User account is valid for one Authorized End User only and may not be shared by or among multiple Authorized End Users. Customer may reassign Authorized User accounts for Staff to other Staff within Customer’s organization by notifying Rack Performance in writing. Use of and access to the Services is limited solely to Staff and Student Athletes. Customer is solely responsible for its Authorized End Users’ compliance with the terms of this Agreement.
    2. System Requirements. Rack Performance does not guarantee that the Services will be compatible or operate with any computer, Internet provider’s service plan, mobile carrier’s service plan, or any other piece of hardware, software, equipment, or device used to access or use the Services. Customer and its Authorized End Users are responsible for providing, maintaining, and ensuring the compatibility of all hardware, software, and other system requirements necessary to access and use the Services. Customer and its Authorized End Users are responsible for all third party charges and fees, including to any Internet service provider and mobile carrier, in connection with Customer’s and the Authorized End User’s access and use of the Services and for complying with any contracts, terms of service agreements, and restrictions associated with such third party services.
    3. Customer’s Data and Information. Customer is solely responsible for the accuracy and completeness of Customer’s and Customer’s Authorized End Users’ data and information located on the Services. Rack Performance makes no representation or warranty of any kind, either express or implied, regarding the quality, accuracy or validity of the data and information available from or on the Services. Use of data and information obtained from or on the Services is at Customer’s risk, and Rack Performance will not be liable to Customer, any Authorized End User, or to any third party for any liabilities, damages, losses, penalties, costs, or expenses suffered by Customer, any Authorized End User, or any third party arising from any inaccuracy, incompleteness, or invalidity of any such data and information or, absent Rack Performance’s gross negligence or intentional act or omission, any modification, corruption, loss, or breach of security with respect to any such data and information.
    4. Services Availability. The quality and availability of the Services may be affected by factors outside of Rack Performance’s control because the Services are provided over the Internet. Rack Performance’s Services availability commitment is to provide Customer and Authorized End Users the ability to access the Services 99.9% of the time. These commitments do not constitute a warranty or guarantee and the Services are subject to the limitation of warranties as provided in this Agreement.
    5. Changes to the Services. Rack Performance and its service partners reserve the right at any time and without liability or prior notice to Customer to add, change, or terminate any of the specifications, features, content, or functions of the Services (with the exception of Customer’s and Customer’s Authorized End Users’ data and information located on the Services).
    6. Audit. Rack Performance may conduct audits to ensure that Customer and Customer’s Authorized End Users are in compliance with this Agreement. Audits may be conducted through remote monitoring of Customer’s and Customer’s Authorized End Users’ use of and access to the Services. If an audit reveals that Customer’s or Customer’s Authorized End Users’ use of the Services during the period being audited exceeds the scope of Customer’s licensed use pursuant to this Agreement or an applicable Order Form, then Rack Performance may invoice Customer for all such excess use based on Rack Performance’s then-current rates at the time the audit is completed. If Customer’s excess use exceeds 10% of the licensed use, Customer will also pay Rack Performance’s reasonable costs of conducting the audit.
    7. Privacy.
      1. Rack Performance collects, stores, and uses data collected from Customer and Authorized End Users in accordance with the Rack Performance Privacy Notice, viewable at https://rackperformance.com/. The terms and conditions of the Privacy Notice are hereby incorporated into this Agreement by this reference.
      2. As between Rack Performance and Customer, any personal information that Rack Performance collects from Customer or an Authorized End User that includes any information that is directly related to a student that is maintained by a school, school district, or Rack Performance, as part of the provision of the Services (“Student Data”) belongs to the school, school district, or student (as the case may be) and Rack Performance claims no right, title, or interest in any Student Data that is made available to Rack Performance. Student Data may include “educational records” as defined by the Family Educational Rights and Privacy Act.
      3. As between Rack Performance and Customer, Customer is solely responsible for obtaining verifiable parental consent to allow Student Athletes under the age of 13 to access and use the Services. Customer will provide proof of such parental consent reasonably acceptable to Rack Performance upon Rack Performance’s written request. STUDENT ATHLETES UNDER THE AGE OF 13 ARE PROHIBITED FROM USING THE SERVICES WITHOUT CUSTOMER OBTAINING SUCH VERIFIABLE PARENTAL CONSENT. CUSTOMER AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS RACK PERFORMANCE FROM ANY AND ALL LIABILITIES, DAMAGES, LOSSES, PENALTIES, COSTS, AND EXPENSES RELATED TO CUSTOMER’S BREACH OR ALLEGED BREACH OF THIS SECTION.     
  5. TRIAL AND BETA SERVICES.
    1. Trial. Rack Performance may allow its clients to register for a trial, free of charge, to enable such clients to access, download, view, or otherwise use the Services (“Trial”). If Customer registers for a Trial, Rack Performance will make the Services available to Customer until the earlier of (a) the end of the Trial period, or (b) the start date of any subscription to the Services purchased by Customer. Additional terms and conditions for a Trial may appear on the Trial registration website. Any such additional Trial terms and conditions will be incorporated into this Agreement by this reference and will be legally binding. Any data or information entered into the Services and any customizations to the Services by or for Customer during the Trial will be permanently lost unless Customer purchases a subscription to the same Services as those covered by the Trial. Customer may not transfer any data, information, or customizations made during a Trial to the Services that would be a downgrade from that covered by the Trial.
    2. Beta Services.
      1. From time to time, Rack Performance may make products and services that are not generally available to clients (“Beta Services”) at no charge. Customer may accept or decline Beta Services at its sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, or by a similar description. Beta Services are for evaluation purposes and not for production use. If Customer registers for Beta Services, Rack Performance will make the Beta Services available to Customer until the earlier of (a) the end of the Beta Services period, or (b) the date that a version of the Beta Services becomes generally available as Services. Rack Performance may discontinue Beta Services at any time and at its sole discretion. Additionally, Rack Performance may never make Beta Services available or make Beta Services generally available as Services.
      2. Rack Performance will have no liability for any harm or damage arising out of or in connection with Beta Services. If Customer elects to access or use Beta Services, Customer will be responsible for the management, internal control, and implementation of the Beta Services.
      3. BETA SERVICES ARE TO BE UTILIZED ONLY ON THE SOFTWARE AND METHODS AS PROVIDED AND APPROVED BY RACK PERFORMANCE. THE BETA SERVICES MAY CONTAIN DEFECTS, FAIL TO COMPLY WITH APPLICABLE SPECIFICATIONS, AND MAY PRODUCE UNINTENDED OR ERRONEOUS RESULTS. CUSTOMER ACCEPTS THE BETA SERVICES “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. CUSTOMER IS RESPONSIBLE FOR ESTABLISHING BACK-UP AND OTHER PROCEDURES AND CONTROLS APPROPRIATE TO MAINTAIN THE INTEGRITY AND CONTINUITY OF CUSTOMER’S OPERATIONS WHILE USING THE BETA SERVICES. RACK PERFORMANCE IS UNDER NO OBLIGATION TO MAKE ANY CHANGES OR MODIFICATIONS TO THE BETA SERVICES SUGGESTED BY CUSTOMER. RACK PERFORMANCE RESERVES THE RIGHT, WITH OR WITHOUT PRIOR NOTICE, TO DISCONTINUE WORK ON THE BETA SERVICES OR TO REVISE THE BETA SERVICES SO THE BETA SERVICES PROVIDE DIFFERENT FEATURES, FEATURES IN DIFFERENT COMBINATIONS, AND DIFFERENT ENVIRONMENT CONFIGURATIONS. CUSTOMER UNDERSTANDS AND AGREES THAT THE BETA SERVICES ARE NOT A FULLY TESTED PRODUCT AND CUSTOMER’S USE OF THE BETA SERVICES IS AT CUSTOMER’S SOLE RISK.  
  6. FEES.
    1. Fees and Expenses. The fees payable by Customer to Rack Performance (“Fees”) are set forth in each Order Form and are payable as provided in this Agreement and the Order Form. All Fees are nonrefundable and non-cancellable except as expressly provided in this Agreement and are exclusive of taxes and any shipping or freight. All Fees will be payable in the currency set forth in the Order Form. Rack Performance’s acceptance of payment of Fees from a third party will not provide such third party any rights to the Services or under this Agreement and such acceptance will be for Customer’s convenience only.
    2. Taxes. Customer agrees to pay all taxes or levies of whatever nature arising out of or in connection with this Agreement, including the sale, delivery, or use of the Services, or any other activities hereunder, excluding taxes based on Rack Performance’s net income. Customer will reimburse and indemnify Rack Performance in full for any of the foregoing taxes or levies that are paid by Rack Performance for which Customer is responsible hereunder. If Customer is required by law to withhold or deduct any amount from the Fees, Customer will increase the Fees paid to Rack Performance such that Rack Performance receives the full amount of Fees specified under the applicable Order Form. If Customer asserts that any transaction under this Agreement is tax exempt, Customer will provide Rack Performance a tax exemption certificate acceptable to the applicable taxing authority.
    3. Payment Timeframe. Customer will provide Rack Performance with valid and updated credit card information or with a valid purchase order or alternative document reasonably acceptable to Rack Performance. If Customer provides credit card information to Rack Performance, Customer authorizes Rack Performance to charge such credit card for all Services identified in an applicable Order Form for the initial subscription term and any renewal subscription term. Such charges shall be made in advance, either monthly or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Rack Performance will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in an applicable Order Form, invoiced charges are due 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information and for notifying Rack Performance of any changes to such information.

    4. Late Fees. Any invoiced amounts not paid when due will accrue interest at the lower of 1.5% per month for each month (or fraction thereof) that payment is not received by Rack Performance, or the maximum percentage allowed by applicable law. In the event that payment that is properly owed under this Agreement is not made when due, Customer will be in material default under the terms of this Agreement and Rack Performance may invoke any or all available remedies, including the right to suspend its performance under this Agreement. Customer will reimburse Rack Performance for all costs and expenses incurred by Rack Performance arising from Rack Performance’s collection of amounts due under this Agreement, including, without limitation, reasonable attorneys’ fees.

  7. WARRANTIES.
    1. Representations and Warranties. Customer represents and warrants that: (a) if applicable, it is properly organized, validly existing, and in good standing under the laws of the state in which it is organized; (b) it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; (c) it has properly authorized execution of this Agreement; and (d) it will comply with all applicable laws and performance of its obligations hereunder.
    2. Disclaimers. RACK PERFORMANCE MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING THE SERVICES OR BETA SERVICES, EXPRESSED OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED HEREIN. THE SERVICES AND BETA SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND RACK PERFORMANCE EXPRESSLY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, UPTIME, OR SKILL AND CARE. RACK PERFORMANCE DOES NOT WARRANT THAT THE FUNCTIONS OR INFORMATION CONTAINED IN THE SERVICES OR BETA SERVICES WILL MEET ANY REQUIREMENTS OR NEEDS CUSTOMER MAY HAVE, OR THAT THE SERVICES OR BETA SERVICES WILL OPERATE ERROR FREE OR WITHOUT INTERRUPTION, OR THAT ANY DEFECTS OR ERRORS IN THE SERVICES OR BETA SERVICES WILL BE CORRECTED, OR THAT THE SERVICES OR BETA SERVICES ARE COMPATIBLE WITH ANY PARTICULAR COMPUTER SYSTEM OR SOFTWARE. RACK PERFORMANCE MAKES NO GUARANTEE OF ACCESS TO OR OF ACCURACY OF THE CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES OR BETA SERVICES.
  8. INDEMNIFICATION.
    1. Rack Performance Indemnification. Rack Performance will hold harmless, indemnify, and defend Customer from and against any and all claims (including any and all liabilities, damages, losses, costs, and expenses and reasonable attorneys’ fees arising therefrom) (“Claims”) to the extent arising out of any action or proceeding brought by a third party against Customer alleging: (a) that the Services infringe a copyright or patent, or misappropriates a trade secret of a third party; or (b) an act or omission by Rack Performance which is a breach by Rack Performance of any of its obligations under this Agreement;
    2. Intellectual Property Infringement.
      1. Rack Performance will have no liability to Customer with respect to any Claim that is based upon, arises out of, or would not have occurred but for: (a) Rack Performance following the designs, specifications, or written instructions provided by Customer; (b) Customer’s or an Authorized End User’s use of the Services in a manner not contemplated by the terms of this Agreement or Terms of Use; or (c) Customer’s or an Authorized End User’s modification of the Services or use of the Services in conjunction with hardware, software, systems, or methods not provided by Rack Performance.
      2. If Rack Performance reasonably believes that the Services infringe a copyright or patent, or misappropriate a trade secret of a third party, then Rack Performance, within its sole and absolute discretion, will either: (a) acquire the right for Customer to continue to use the Services in accordance with the terms of this Agreement; (b) replace or modify the Services so that it becomes non-infringing; or (c) terminate this Agreement and refund to Customer an equitable portion of the Fees paid to Rack Performance.
    3. Customer Indemnification. Customer will hold harmless, indemnify, and defend Rack Performance and its officers, directors, agents, and employees (collectively, “Rack Performance Indemnified Parties”) from and against any and all Claims to the extent arising out of any action or proceeding brought by a third party against any one or more of the Rack Performance Indemnified Parties alleging an act or omission by Customer which is a breach by Customer of any of its obligations under this Agreement.
    4. Conditions to Indemnification.
      1. The parties’ indemnification obligations as provided above will be conditioned upon the party seeking indemnification: (a) giving prompt written notice to the indemnifying party of any claim, demand, or action for which indemnity is sought; (b) fully cooperating in the defense or settlement of any such claim, demand, or action; and (c) giving the indemnifying party sole control of the defense, investigation, and settlement of the claim, demand, or action for which indemnification is sought, including, without limitation, the employment and engagement of attorneys of its choice to handle and defend the same.
      2. In no event, however, will the indemnifying party admit liability on behalf of the indemnified party without the indemnified party’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed.
      3. Subject to the foregoing, the indemnified party, at its own expense, may participate, through its attorneys or otherwise, in the investigation, trial, and defense of any such claim, demand, or action and any appeal therefrom.
    5. Exclusive Remedy. This Section 8 sets forth Customer’s exclusive remedy with respect to any Claim for Rack Performance’s alleged violation of the intellectual property or other rights of third parties with respect to the Services. Rack Performance will have no liability to indemnify Customer under this Section 8 if Customer is in breach of any of its obligations under this Agreement.
  9. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL RACK PERFORMANCE BE LIABLE TO CUSTOMER FOR LOSS OF PROFITS OR OTHER ECONOMIC LOSS, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF BUSINESS, PROFITS, REVENUE, GOODWILL, USE, OR DATA), EVEN IF RACK PERFORMANCE HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION CAUSES OF ACTION ARISING OUT OF TERMINATION OF THIS AGREEMENT, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, PRODUCT LIABILITY AND ANY OTHER TORTS. UNLESS PROHIBITED BY LAW, THE MAXIMUM AGGREGATE CUMULATIVE AMOUNT OF MONEY DAMAGES FOR WHICH RACK PERFORMANCE MAY BE LIABLE UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNTS ACTUALLY PAID OR PAYABLE BY CUSTOMER TO RACK PERFORMANCE UNDER THIS AGREEMENT DURING THE 6 MONTHS PRECEDING A CLAIM.
  10. INTELLECTUAL PROPERTY.
    1. Intellectual Property Rights. Each party and their respective licensors will retain all of their right, title, and ownership in and to their intellectual property and related materials. Rack Performance may use proprietary documentation, software, techniques, tools, and processes in providing the Services and Beta Services under this Agreement. Rack Performance will retain title to and ownership of all such proprietary documentation, software, techniques, tools, and processes. No other right is hereby transferred or granted to either party, including any license by implication, estoppel or otherwise, under any patent, trade secret, trademark, or copyright.
    2. Suggestions. Customer hereby irrevocably assigns to Rack Performance all right, title and interest in and to any suggestions, enhancement requests, recommendations, or other feedback provided by Customer and Customer’s Authorized End Users relating to the Services.
  11. TERM AND TERMINATION.
    1. Term. This Agreement commences on the date Customer first accepts it and continues until (a) all subscriptions for Services hereunder have expired or have been terminated, or (b) it is terminated pursuant to this Section 11.
    2. Termination by Customer. Customer may terminate this Agreement effective 30 days after written notice to Rack Performance in the event that Rack Performance breaches any material provision of this Agreement and has not cured such breach within such 30 day period, or such longer period as reasonably necessary to cure such breach.
    3. Termination by Rack Performance. Rack Performance may terminate this Agreement effective 30 days after written notice to Customer.
    4. Termination by Either Party. Either party may immediately terminate this Agreement with no opportunity for the other party to cure if: (a) any distress or execution is levied on any of the other party’s property or assets; (b) the other party makes or offers to make any arrangement or composition with creditors; (c) any resolution or petition to wind up the other party’s business is passed or presented or if a receiver or administrative receiver of such party’s undertaking, property or assets is appointed or a petition presented for the appointment of an administrator or, if an individual, such party has a bankruptcy order made against him or her; or (d) the other party is subject to any proceedings, which are equivalent or substantially similar to any of the proceedings under sub-clause (a), (b) or (c) under any applicable jurisdiction.
    5. Rights and Obligations upon Termination or Expiration.
      1. Upon termination or expiration of the Term of this Agreement, all rights granted to Customer and the Authorized End Users hereunder will immediately cease, and Customer and its Authorized End Users will immediately discontinue all use of the Services.
      2. Rack Performance’s termination of this Agreement will be without prejudice to any other remedies that Rack Performance may lawfully have and Rack Performance may seek any other remedy it may have available for breach of this Agreement. If Rack Performance terminates this Agreement in accordance with Section 11.4, Customer will pay any unpaid Fees covering the remainder of the subscription period, if any, for the Services in accordance with the applicable Order Form. Termination or expiration of the term of this Agreement for any reason will not excuse Customer’s obligation to pay in full any and all Fees or other amounts due by Customer to Rack Performance.
    6. Survival. The terms and conditions in this Agreement that by their nature and context are intended to survive any termination or expiration of the Term of this Agreement will survive such termination or expiration of the Term of this Agreement for any reason and will be fully enforceable thereafter. Termination or expiration of the Term of this Agreement will not otherwise affect the party exercising such rights, remedies, and protections hereunder.
  12. CONFIDENTIALITY.
    1. Confidential Information Defined.
      1. “Confidential Information” includes, but is not limited to, any information or know-how (including, but not limited to, information relating to research, products, services, quantity, price, pricing, delivery, development, inventions, processes, engineering, marketing, techniques, customers, internal procedures, business and marketing plans or strategies, finances, employees and business opportunities) concerning a party and its affiliates and disclosed by such party (the “Disclosing Party”) to the other party (the “Receiving Party”) either directly or indirectly in any form whatsoever (including, but not limited to, in writing, in machine readable or other tangible form, orally or visually) that has been marked as “confidential” or “proprietary” or with a similar legend, whose confidential nature has been made known by Disclosing Party, orally or in writing, to the Receiving Party concurrently with the disclosure of such information, or that, due to its character and nature, a reasonable person under like circumstances would treat as confidential.
      2. Confidential Information will not include information that: (a) is or becomes publicly available other than through the Receiving Party or its Authorized Representatives; (b) is in the Receiving Party’s possession at the time of disclosure as shown by the Receiving Party’s files and records immediately prior to the time of disclosure; (c) is acquired by the Receiving Party from a third party, who provides the information without breaching any express or implied obligations or duties to the Disclosing Party; (d) is disclosed by the Receiving Party with the Disclosing Party’s prior written consent; (e) is independently developed by the Receiving Party without reference to Confidential Information; or (f) is disclosed in response to a valid order, or request of a court or other governmental body; provided, however, that the Receiving Party will first have given prompt notice to the Disclosing Party of any such order, inquiry or request so that the Disclosing Party may seek an appropriate protective order or reach a mutual written agreement with the Receiving Party, requiring that the information so disclosed be used only for the purposes for which the inquiry or request was made or the order was issued.
    2. Level of Care. The Receiving Party will maintain the confidentiality of, and agrees to use the same care to prevent disclosure of, the Confidential Information as it employs to avoid disclosure, publication or dissemination of its own information of a similar nature, but in no event less than a reasonable standard of care. The Receiving Party further agrees to use the Confidential Information only in connection with and in furtherance of the business transactions contemplated by this Agreement. The Receiving Party may disclose Confidential Information to its employees, directors, officers, affiliates, agents, subcontractors, attorneys, accountants or professional advisors, who have a need to have access to the Confidential Information in carrying out the business transactions contemplated by this Agreement (“Authorized Representatives”). The Receiving Party will inform its Authorized Representatives of the confidential nature of the Confidential Information and the applicability of this Agreement thereto and will obligate and direct its Authorized Representatives to maintain the confidentiality of the Confidential Information and otherwise to observe the terms of this Section 12.
    3. Ownership. All Confidential Information disclosed by the Disclosing Party will remain the property of the Disclosing Party, and except as otherwise provided in this Agreement, the Receiving Party does not acquire any license, right, title, or interest in such Confidential Information.
    4. Termination. Upon the termination or expiration of this Agreement, the Receiving Party, upon the written request of the Disclosing Party, will: (a) destroy all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the Disclosing Party’s Confidential Information; (b) permanently erase all of the Disclosing Party’s Confidential Information from its computer systems, provided that any copy that is maintained as an archive copy on a disaster recovery or information technology backup system may be retained so long as such Confidential Information is protected in accordance with this Section 12 for as long as the Confidential Information is retained; and (c) certify in writing to the Disclosing Party that it has complied with the requirements of this clause.
    5. Remedies. The Receiving Party acknowledges that improper dissemination of Confidential Information may cause irreparable damage to the Disclosing Party and agrees that the Disclosing Party will have available to it, in addition to any other remedy provided by law, the right to apply for mandatory injunctive relief to enforce compliance by the Receiving Party with the provisions of this Agreement.
  13. MISCELLANEOUS.
    1. Governing Law. This Agreement will be governed by and construed, interpreted, and enforced in accordance with the laws of the State of Kansas, without reference to its conflicts or choice of law principles. The parties agrees that the sole and exclusive jurisdiction and venue for any and all disputes arising under this Agreement will be in any court located in or having jurisdiction over Johnson County, Kansas. The parties irrevocably submit and consent to the personal jurisdiction of such courts.
    2. Relationship of the Parties. The relationship between the parties will at all times be that of independent contractors and not one of agency, partnership, or joint venture.
    3. Publicity. Customer grants to Rack Performance the right to refer to Customer in Rack Performance’s customer listings, marketing brochure, and user profile as well as in press releases and on Rack Performance’s website.
    4. Expenditures. Customer acknowledges and agrees that any expenses Customer incurs in furtherance of this Agreement are voluntary in nature and are made with the knowledge that this Agreement may expire or be terminated as provided herein. Customer will not make any claim against Rack Performance or its service partners, and Rack Performance and its service partners will not be liable, for the recoupment of any expenditures or investment made by Customer.
    5. Entire Agreement and Modification. This Agreement, including the Order Form, the Rack Performance Privacy Notice, and the Terms of Use, constitute the entire understanding and agreement between the parties with respect to the subject matter of this Agreement and supersedes all previous agreements and communications between the parties concerning such subject matter. No modifications may be made to this Agreement except in writing, signed by both parties.
    6. Assignment. The terms of this Agreement are binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Customer may not assign or transfer Customer’s rights or obligations under or interest in this Agreement without Rack Performance’s prior written consent.
    7. Waiver. No failure to exercise or delay by a party in exercising any right, power, or remedy under this Agreement operates as a waiver of such right, power, or remedy. A single or partial exercise of any right, power, or remedy does not preclude any other or further exercise of that or any other right, power, or remedy. A waiver is not valid or binding on the party granting the waiver unless made in writing.
    8. No Third-Party Beneficiaries. With the exception of Rack Performance’s service partners, the terms and provisions of this Agreement are intended solely for the benefit of each party hereto, and neither party may confer third-party beneficiary rights upon any other person or entity.
    9. Severability. The provisions of this Agreement are severable and if any one or more such provisions is determined to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of any of the remaining provisions or portions thereof will not be affected or impaired thereby and will nevertheless be binding between the parties. In the event any provision of this Agreement is found to be invalid, illegal, or unenforceable, the parties will endeavor to modify that provision in a manner that gives effect to the intent of the parties in entering into the Agreement.
    10. Construction of Agreement. Each party acknowledges that it has had the opportunity to review this Agreement with legal counsel of its choice and agrees that in the event that this Agreement or any other documents delivered in connection with the transactions contemplated by this Agreement contain any ambiguity, such ambiguity will not be construed or interpreted against the drafting party. The titles and headings herein are for reference purposes only and will not in any manner limit the construction of this Agreement, which will be considered as a whole.
    11. Force Majeure. Rack Performance will not be liable or deemed to be in default for any delay or failure in performance under this Agreement (except for payment obligations) resulting, directly or indirectly, from acts of God, civil or military authority, acts of the public enemy, war, riots, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, the elements, strikes, labor disputes or any causes beyond its reasonable control.
    12. Compliance with Laws. The parties agree to comply with any and all laws and governmental requirements that apply to their respective performance under this Agreement. Customer may not use the Services or export Customer data or information in violation of United States export laws, regulations, or restrictions. If Customer accesses the Services from outside of the United States, Customer is responsible for compliance with all applicable laws.
    13. Notices. All notices, demands, or other communications given under this Agreement will be in writing and will be deemed to have been duly given if delivered personally, mailed via registered mail, postage prepaid, to the attention of the persons who agreed to this Agreement or transmitted via facsimile or other electronic means of communication (with satisfactory evidence of transmission).