This OPERATION 36 GOLF PROFESSIONALS END USER LICENSE AGREEMENT comprises a binding license agreement (the “Agreement”) by and between you (“Licensee”), as a professional golf instructor, facility manager or other licensee of Golf Genius Software, Inc. and Golf Genius Software, Inc. (“OP-36”).
WHEREAS, OP-36 offers services related to golf instruction programs, including, without limitation, golf instruction programs based on OP-36’s proprietary Operation 36 golf programs, and OP-36 also offers services for the operation of certain aspects of golf facilities related to the offering of golf programs, including, without limitation, certain software-as-a-service presented as an online platform to aid coaches in organizing and delivering high quality golf instruction programs, (hereinafter the “Services”); and
WHEREAS, Licensee is interested in obtaining access to the Services via the operation36.golf and related websites, including their webpages, interactive features and applications and their respective contents and any other associated interactive content, whether accessed by computer, mobile device or other technology (collectively the “Site”), which is owned and operated by Op-36;
NOW THEREFORE, for and in consideration of the premises and mutual covenants set forth herein and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, OP-36 and Licensee agree as follows:
1. License Grant. Subject to the terms and conditions of this Agreement, OP-36 grants to Licensee a non-exclusive, limited, non-transferable, non-sublicensable license to use the Services and related materials for purposes of enabling Licensee to operate and manage its golf programs, and aspects of its facility related to its golf programs, through the Services.
3. Limitations and Minimum Program Standards. The Services are made available to Licensee for use only as expressly set forth in this Agreement. Licensee will not, and will not allow any third party to: (i) attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Services by any means, or disclose any of the foregoing; (ii) provide, rent, lease, lend, or use the Services for timesharing, subscription, or service bureau purposes; or (iii) sublicense, transfer or assign any of the rights or licenses granted under this Agreement. Licensee shall not: (i) use the Services for storage, possession, or transmission of any information, the possession, creation or transmission of which violates any state, local or federal law; or (ii) transmit or use Licensee-generated content in any manner that infringes upon or misappropriates the intellectual property or privacy rights of any third party. With respect to OP-36’s proprietary Operation 36 golf programs (the “OP-36 Programs”), Licensee shall use the OP-36 Programs in accordance with their intended purpose and minimum program offering requirements. Schedule A, attached hereto and incorporated by reference herein, contains the current version of the minimum program offering requirements for the OP-36 Programs. The license granted in Paragraph 1, above, is conditioned on Licensee’s compliance with all terms and conditions of this Agreement, including, without limitation, adherence to (i) the limitations specified in this Paragraph 3 and (ii) the minimum program offering requirements for the OP-36 Programs. The license granted in Paragraph 1, above, shall immediately terminate if, in the sole judgment of OP-36, breached any of the terms and conditions of this Agreement, including, without limitation, failure to adhere to (i) the limitations specified in this Paragraph 3 and/or (ii) the minimum program offering requirements for the OP-36 Programs.
4. Reservation of Rights. The Services, and all content provided on or via the Services, is either owned or used under license by OP-36, and is protected by U.S. and international copyright, trademark and other intellectual property laws (“OP-36-IP”). Any rights not expressly granted to Licensee in this Agreement are reserved by OP-36 and its licensors. OP-36-IP may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without the prior written permission of OP-36 and/or its licensors. Licensee must abide by all copyright notices, information, or restrictions contained in or attached to any OP-36-IP. OP-36-IP shall also include any customizations or modifications of the Services, including, without limitation, any customizations or modifications incorporating information, data and other content, in any form or medium, that is submitted, posted or otherwise transmitted by or on behalf of Licensee through the Services. All trademarks and service marks adopted by OP-36, to identify the Services, or any component thereof, including, without limitation, the mark “Operation 36” and variations thereof, belong exclusively to OP-36. Licensee shall have no rights in such marks except as specified in writing between the parties.
5. Payment. In exchange for the license granted herein, Licensee shall pay OP-36 the amounts quoted in Licensee’s current subscription invoice. Except as otherwise set forth in any subscription invoice, all fees are due in advance. Licensee is responsible for any taxes, including personal property taxes or sales taxes, resulting from Licensee’s use of the Services.
6. Service Levels and Support. Subject to the terms and conditions of this Agreement, OP-36 shall use commercially reasonable efforts to make the Services available to Licensee and shall provide support services as follows: OP-36 will provide basic level of support to the users of the platform. Users will have access to online documentation on using the Site and/or Services, and can also email Support@Op36Golf.com, if Licensee is in need of additional assistance. OP-36 will use commercially reasonable efforts to respond within a reasonable amount of time.
8. Term and Termination. The Term of this Agreement shall be for the subscription period set forth in Licensee’s current subscription invoice. Without prejudice to any other rights, OP-36 may terminate this Agreement immediately, prior to the expiration of any subscription period, in the sole judgment of OP-36, Licensee has breached any of the terms and conditions of this Agreement. For the avoidance of doubt, the failure of Licensee to pay any fees when due shall constitute a breach of this Agreement permitting immediate termination by OP-36. Upon termination of this Agreement, Licensee (a) acknowledges and agrees that all licenses and rights to access to the Services shall terminate, and (b) will cease any and all use of the Services. The provisions of this Agreement that, by the very nature of those obligations, extend beyond the termination of this agreement shall survive and remain in full force and effect irrespective of any such termination.
9. Disclaimer of Warranties. THE SERVICES ARE PROVIDED “AS IS.” OP-36 DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10. Indemnification. Licensee shall indemnify, defend and hold harmless OP-36 and its directors, officers, employees, agents and affiliates from and against any and all third-party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys' fees) to the extent attributable to any breach of this Agreement by Licensee, including, without limitation, any failure by Licensee to .
11. LIMITATION OF LIABILITY. OP-36 SHALL NOT BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, REVENUE OR SAVINGS, LOSS OF GOODWILL, OR THE LOSS OF USE OF ANY DATA, EVEN IF OP-36 HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF. LICENSEE ACKNOWLEDGES THAT THE LIMITATIONS SET FORTH HEREIN REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND AGREED TO BY THE PARTIES, AND THAT OP-36 WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
12. Export Regulation. The Services may be subject to export laws and regulations of the United States and other jurisdictions. Licensee shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation.
13. Use of Data and Third-Party Links. Licensee agrees that OP-36 may collect and use technical data. including technical information, and related information from use of the Services. The Services may contain links or connections to, or use third party sites or services, which are not owned or controlled byOP-36. OP-36 assumes no responsibility for the content, privacy policies, or practices of any third-party sites or services. By using the Services, Licensee expressly relieves OP-36 from any and all liability arising from Licensee’s use of any such third-party site or service.
14. Force Majeure. In no event shall OP-36 be liable to Licensee, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond OP-36’S reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
15. Assignment. Licensee may not assign any of Licensee’s rights or delegate any of Licensee’s obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of OP-36. Any purported assignment or delegation in violation of this Paragraph 15 will be null and void. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.
16. Nature of Agreement. This Agreement constitutes the complete understanding of the parties as to the subject matter hereof. No modification or waiver of any provision shall be valid unless in writing and signed by both parties. If any provision of this Assignment shall be held to be void, invalid or unenforceable by a court of competent jurisdiction, or by any other legally constituted body having the jurisdiction to make such a determination, it shall not affect the validity or enforceability of any other provision of this Agreement.
17. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Deleware and the laws of the United States of America applicable to contracts made and to be fully performed therein, excluding Conflict of Law Principles. The parties irrevocably submit to the nonexclusive jurisdiction of the federal and state courts of the State of Delaware, U.S.A.; provided, however, that (i) nothing herein shall preclude OP-36 from instituting proceedings against Licensee, or anyone acting by, through or under Licensee, in any place which may have jurisdiction for the purpose of protecting and enforcing OP-36’s rights either hereunder or pursuant to any other agreements, documents, instruments or otherwise; and (ii) in no event may Licensee institute proceedings against OP-36 or anyone acting by, through or under OP-36 in any place other than in the State of Deleware, United States of America.