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General Terms
Welcome to GolfSmash LLC, a suite of optional online golf course management services.
BY USING THE SERVICE(S), YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE SERVICE TERMS THAT APPLY FOR THE SERVICE(S) FOR WHICH YOU PURCHASE.
As used in this Agreement, “Provider” and "GolfSmash" means the GolfSmash Contracting Party or any of its affiliates, and “Customer” means you or the business you represent. If there is any conflict between these General Terms and the applicable Service Terms, the Service Terms will govern.
Agreement
1. Definitions
1.1 Except to the extent expressly provided otherwise, in this Agreement:
"Account" means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts;
"Agreement" means this agreement including any Schedules, and any amendments to this Agreement from time to time;
"Business Day" means any weekday other than a bank or public holiday in the United States;
"Business Hours" means the hours of 09:00 to 17:00 EST on a Business Day;
"Fees" means the amounts as agreed in writing by the parties
"Customer Confidential Information" means:
(a) any information disclosed by or on behalf of the Customer to the Provider at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
(i) was marked as "confidential"; or
(ii) should have been reasonably understood by the Provider to be confidential;
(b) the Customer Data
"Customer Data" means all data uploaded to or stored on the Platform by the Customer;
"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
"Effective Date" means the date from which the licensing fees will take effect;
“Execution Date” means the date the agreement is executed by both parties and the terms of the agreement take effect
“Fiscal Year” 12 month period beginning on the Effective Date.
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"Hosted Services" means Course Access, as specified in the Hosted Services Specification, which will be made available by the Provider to the Customer as a service via the internet in accordance with this Agreement;
"Hosted Services Defect" means a defect, error or bug in the Platform having a material adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Customer or any person authorized by the Customer to use the Platform or Hosted Services;
(b) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorized by the Customer;
(c) a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or
(d) an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification;
"Hosted Services Specification" means the specification for the Platform and Hosted Services set out in Part 2 of Schedule 1 (Hosted Services particulars) and in the Documentation;
"Intellectual Property Right" means any patent, copyright, Trademark, domain name, moral right, trade secret right, or any other intellectual property right arising under any Laws and all ancillary and related rights, including all rights of registration and renewal and causes of action for violation, misappropriation or infringement of any of the foregoing.;
"Maintenance Services" means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;
"Mobile App" means the mobile application known as GolfSmash that is made available by the Provider through the Google Play Store, the Apple App Store, or other such online market sources;
"Permitted Purpose" means providing the services as specified within this agreement;
"Personal Data" has the meaning given to it in the Data Protection Act 1998;
"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Service, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
"Purchaser" means any person with an account on the GolfSmash web platform who has the ability to book and purchase tee times.
"Schedule" means any schedule attached to main body of this Agreement;
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;
"Supported Web Browser" means the current release from time to time of Microsoft Internet Explorer, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported;
"Term" means the term of this Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2;
"Update" means a hotfix, patch or minor version update to any Platform software; and
"Upgrade" means a major version upgrade of any Platform software.
2. Credit
2.1 This document was created by SEQ Legal (http://www.seqlegal.com).
3. Term
3.1 This Agreement shall come into force upon the Execution Date.
3.2 This Agreement shall continue in force for one full year from Execution Date, subject to termination in accordance with Clause 18 or a Modification of Agreement in accordance with Clause 3.3. If the agreement is not modified or terminated by either parties, the agreement will automatically renew each month subject to termination in accordance with Clause 18.
3.3 We may amend any of the terms and conditions contained in this Agreement (including the Service Terms) at any time and at our sole discretion. Any changes will be effective upon email notification sent to Course Access account holders. You should refer regularly to Course Access to understand the current Agreement. YOUR CONTINUED USE OF A SERVICE AFTER GOLFSMASH'S EMAIL NOTIFICATION OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS AGREEMENT, YOU MUST TERMINATE THIS AGREEMENT AS DEFINED IN CLAUSE 18.
4. Hosted Services
4.1 The Provider shall create an Account for the Customer and shall provide to the Customer login details for that Account on or promptly following the Execution Date of the agreement.
4.2 The Provider hereby grants to the Customer a worldwide, non-exclusive license to use the Hosted Services by means of a Supported Web Browser for the internal business purposes of the Customer in accordance with the Documentation during the Term.
4.3 The license granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:
(a) the Hosted Services may only be used by the officers, employees, agents and subcontractors of the Customer;
4.4 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the license granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Hosted Services;
(b) the Customer must not permit any unauthorized person to access or use the Hosted Services;
(c) the Customer must not use the Hosted Services to provide services to third parties;
(d) the Customer must not republish or redistribute any content or material from the Hosted Services; and
(e) the Customer must not make any alteration to the Platform, except as permitted by the Documentation.
4.5 The Customer shall use reasonable endeavors, including reasonable security measures relating to Account access details, to ensure that no unauthorized person may gain access to the Hosted Services using an Account.
4.6 The Provider shall use reasonable endeavors to maintain the availability of the Hosted Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Hosted Services, but does not guarantee 100% availability.
4.7 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Customer's computer systems or networks;
(d) any breach by the Customer of this Agreement; or
(e) scheduled maintenance carried out in accordance with this Agreement.
4.8 The Customer must comply with Schedule 2 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an Account comply with Schedule 2 (Acceptable Use Policy).
4.9 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
4.10 The Customer must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
4.11 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
4.12 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
5. Maintenance Services
5.1 The Provider shall provide the Maintenance Services to the Customer during the Term via a communication means determined by the Provider which may include, but not be limited to, email, notifications via the Golfsmash platform, and U.S. postal service.
5.2 The Provider shall where practicable give to the Customer prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services, without prejudice to the Provider's other notice obligations under this main body of this Agreement.
5.3 The Provider shall give to the Customer notice of the application of an Upgrade to the Platform.
5.4 The Provider shall give to the Customer written notice of the application of any security Update to the Platform and prior written notice of the application of any non-security Update to the Platform.
5.5 The Provider shall provide the Maintenance Services with reasonable skill and care.
5.6 The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 5 days' written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.
6. Support Services
6.1 The Provider shall provide the Support Services to the Customer during the Term.
6.2 The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this main body of this Agreement.
6.3 The Provider shall provide the Support Services with reasonable skill and care.
6.4 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
6.5 The Provider shall respond promptly to all requests for Support Services made by the Customer through the helpdesk.
6.6 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 5 days' written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
7. Customer Data
7.1 The Customer hereby grants to the Provider a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement.
7.2 The Customer warrants to the Provider that the Customer Data will not:
(a) breach the provisions of any law, statute or regulation;
(b) infringe the Intellectual Property Rights or other legal rights of any person; or
(c) give rise to any cause of action against the Provider,
in each case in any jurisdiction and under any applicable law.
7.3 The Provider shall create a back-up copy of the Customer Data regularly, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 7 days.
8. Mobile App
8.1 The parties acknowledge and agree that the use of the Mobile App, the parties' respective rights and obligations in relation to the Mobile App and any liabilities of either party arising out of the use of the Mobile App shall be subject to the terms and conditions, and accordingly this Agreement shall govern any such use, rights, obligations or liabilities.
9. No assignment of Intellectual Property Rights
9.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
10. Fees
10.1 The Customer shall pay the Fees to the Provider in accordance with this Agreement.
10.2 If the Fees are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer's written consent before performing Services that result in any estimate of time-based Fees given to the Customer being exceeded or any budget for time-based Fees agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Fees in respect of Services performed in breach of this Clause 10.2.
10.3 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated inclusive of any applicable value added taxes.
11. Payments
11.1 The Provider shall issue a receipt via email to the Customer at the time Fees are applied to Customer’s credit card. This will occur in 2 separate situations:
1. A Annual Licensing Fee will be charged to the customer in 12 installments on the first day of each month as specified in Part 2 of Schedule 1. A receipt will be sent at the time of charge to the Customer’s credit card.
2. For each tee-time purchased, the Purchaser will be charged a booking Fee as specified in Part 2 of Schedule 1. A receipt indicating the booking Fee paid by Purchase as well as the outstanding balance will be sent at the time of purchase to the Purchaser and Provider via email.
11.2 The Customer must pay the Fees by debit card or credit card (using such payment details as are notified by the Provider to the Customer from time to time).
11.3 If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may:
(a) charge the Customer interest on the overdue amount at the rate of 8% per annum (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month)
12. Provider's confidentiality obligations
12.1 The Provider must:
(a) keep the Customer Confidential Information strictly confidential;
(b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent;
(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Customer Confidential Information
12.2 Notwithstanding Clause 12.1, the Provider may disclose the Customer Confidential Information to the Provider's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
12.3 This Clause 12 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
(a) is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the Provider; or
(c) is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.
12.4 The restrictions in this Clause 12 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognized stock exchange.
12.5 Notwithstanding Clause 12.1, Golfsmash is permitted to use Customer Data to help promote the Customer and/or Golfsmash.
12.6 Purchaser data collected via the Golfsmash website, booking engine, or mobile app is independent of the Customer Confidential Information or Customer Data though overlap may exist, and Golfsmash reserves the right to use such information at its sole discretion.
12.7 The provisions of this Clause 12 shall continue in force indefinitely following the termination of this Agreement.
13. Data protection
13.1 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement.
13.2 To the extent that the Provider processes Personal Data disclosed by the Customer, the Provider warrants that:
(a) it has in place appropriate security measures (both technical and organizational) against unlawful or unauthorized processing of that Personal Data and against loss or corruption of that Personal Data.
14. Warranties
14.1 The Provider warrants to the Customer that:
(a) the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
(b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under this Agreement; and
(c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.
14.2 The Provider warrants to the Customer that:
(a) the Platform and Hosted Services will conform in all material respects with the Hosted Services Specification;
(b) the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
(c) the Platform will incorporate security features reflecting the requirements of good industry practice.
14.3 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under law.
14.4 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
14.5 If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with this Agreement infringes any person's Intellectual Property Rights, the Provider may at its own cost and expense:
(a) modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
(b) procure for the Customer the right to use the Hosted Services in accordance with this Agreement.
14.6 The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
14.7 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
15. Acknowledgements and warranty limitations
15.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
15.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
15.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified by Provider; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
15.4 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
15.5 THE GOLFSMASH SITE AND THE SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SERVICES, ARE PROVIDED "AS-IS." AS A USER OF THE SERVICES, CUSTOMER USE THE GOLFSMASH SITE AND THE SERVICES AND COURSE ACCESS AT THEIR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES WAIVE AND DISCLAIM: (1) ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT, THE SERVICES OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; (2) IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; AND (3) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE. PROVIDER DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE GOLFSMASH SITE AND THE SERVICES WILL MEET CUSTOMER REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, AND PROVIDER WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY TRANSACTIONS.
16. Limitations and exclusions of liability
16.1 PROVIDER WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHER THEORY) OR OTHERWISE) TO CUSTOMER OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY OR RECOUPMENT OF ANY INVESTMENT MADE BY CUSTOMER OR THEIR AFFILIATES IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF GOLFSMASH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES. FURTHER, PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED WILL NOT EXCEED AT ANY TIME THE TOTAL AMOUNTS DURING THE PRIOR SIX MONTH PERIOD PAID BY YOU TO GOLFSMASH IN CONNECTION WITH THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM.
16.2 The limitations and exclusions of liability set out in this Clause 16 and elsewhere in this Agreement:
(a) are subject to Clause 16.1; and
(b) govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
16.3 Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.
16.4 Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.
16.5 Neither party shall be liable to the other party in respect of any loss of revenue or income.
16.6 Neither party shall be liable to the other party in respect of any loss of use or production.
16.7 Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.
16.8 Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software.
16.9 Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.
17. Force Majeure Event
17.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
17.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
17.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
18. Termination
18.1 Provider may terminate or suspend this Agreement or any Service immediately by notice to you for any reason at any time. Customer may terminate this Agreement or any Service by notice for any reason at any time. If Customer terminates this Agreement and wishes to use Golfsmash services in the future, a new agreement will be required in addition to a $1,500 reactivation fee.
19. Effects of termination
19.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): [Clauses 1, 4.11, 8, 11.3, 12, 16, 19, 22 and 23].
19.2 The termination of this Agreement shall not affect the accrued rights of either party.
19.3 Within [30 days] following the termination of this Agreement for any reason:
(a) the Customer must pay to the Provider any Fees in respect of Services provided to the Customer before the termination of this Agreement;
20. Notices
20.1 Any notice from one party to the other party under this Agreement must be given by one of the following methods:
(a) sent via email by Customer to Provider at support@golfsmash.com or from Provider to Customer at the email address of the Course Access account holder, in which case notice shall be deemed to be received upon date of email transmission.
21. Subcontracting
21.1 The Provider may subcontract any of its obligations under this Agreement.
21.2 The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.
21.3 Notwithstanding any other provision of this Agreement, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.
22. General
22.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
22.2 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
22.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
22.4 Neither party may without the prior written consent of the other party assign, transfer, Fee, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
22.5 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
22.6 Subject to Clause 16.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
22.7 This Agreement shall be governed by and construed in accordance with United States law.
22.8 The courts of the United States shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
23. Interpretation
23.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
23.2 The Clause headings do not affect the interpretation of this Agreement.
23.3 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
Schedule 1 (Hosted Services Particulars)
1. Specification of Hosted Services
Hosted services refers to the application named “Course Access” as access through the url http://club.golfsmash.com or http://www.golfsmash.com/club/ClubHome or any other url that access the same endpoint as the previous urls.
This application includes:
Tee sheet management, online profile management, Food and Beverage management, accounting reports, Email marketing, employee management, and forums.
From time to time, additional features will be made available at no additional cost. If additional Fees apply, an amendment to this agreement will be required.
Schedule 2 (Acceptable Use Policy)
1. Introduction
1.1 This acceptable use policy (the "Policy") sets out the rules governing:
(a) the use of club.golfsmash.com, any successor website, and the services available on that website or any successor website] (the "Services"); and
(b) the transmission, storage and processing of content by you, or by any person on your behalf, using the Services ("Content").
1.2 References in this Policy to "you" are to any customer for the Services and any individual user of the Services (and "your" should be construed accordingly); and references in this Policy to "us" are to GolfSmash LLC (and "we" and "our" should be construed accordingly).
1.3 By using the Services, you agree to the rules set out in this Policy.
1.4 We will ask for your express agreement to the terms of this Policy before [you upload or submit any Content or otherwise use the Services].
1.5 You must be at least 18 years of age to use the Services; and by using the Services, you warrant and represent to us that you are at least 18 years of age.
2. General usage rules
2.1 You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
2.2 You must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
2.3 You must ensure that all Content complies with the provisions of this Policy.
3. Unlawful Content
3.1 Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
3.2 Content, and the use of Content by us in any manner licensed or otherwise authorized by you, must not:
(a) be libelous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(g) be in contempt of any court, or in breach of any court order;
(h) constitute a breach of racial or religious hatred or discrimination legislation;
(i) be blasphemous;
(j) constitute a breach of official secrets legislation; or
(k) constitute a breach of any contractual obligation owed to any person.
3.3 You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
4. Graphic material
4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question, and in particular for children over 12 years of age.
4.2 Content must not depict violence in an explicit, graphic or gratuitous manner.
4.3 Content must not be pornographic or sexually explicit.
5. Factual accuracy
5.1 Content must not be untrue, false, inaccurate or misleading.
5.2 Statements of fact contained in Content and relating to persons (legal or natural) must be true; and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion.
6. Negligent advice
6.1 Content must not consist of or contain any legal, financial, investment, taxation, accountancy, medical or other professional advice, and you must not use the Services to provide any legal, financial, investment, taxation, accountancy, medical or other professional advisory services.
6.2 Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.
7. Etiquette
7.1 Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behavior on the internet.
7.2 Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
7.3 Content must not be liable to cause annoyance, inconvenience or needless anxiety.
7.4 You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
7.5 You must not use the Services for the purpose of deliberately upsetting or offending others.
7.6 You must not unnecessarily flood the Services with material relating to a particular subject or subject area, whether alone or in conjunction with others.
7.7 You must ensure that Content does not duplicate other content available through the Services.
7.8 You must ensure that Content is appropriately categorized.
7.9 You should use appropriate and informative titles for all Content.
7.10 You must at all times be courteous and polite to other users of the Services.
8. Marketing and spam
8.1 You must not without our written permission use the Services for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service or commercial offering not related to the Customer’s golf facility as identified in Exhibit A.
8.2 Content must not constitute or contain spam, and you must not use the Services to store or transmit spam - which for these purposes shall include [all unlawful marketing communications and unsolicited commercial communications].
8.3 You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the Services or that you find using the Services.
8.4 You must not use the Services to promote or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, "get rich quick" schemes or similar letters, schemes or programs.
9. Gambling
9.1 You must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.
10. Monitoring
10.1 You acknowledge that we may actively monitor the Content and the use of the Services.
11. Data mining
11.1 You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.
12. Hyperlinks
12.1 You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.
13. Harmful software
13.1 The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
13.2 The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.
