Last Updated: December 10, 2020
This End User License Agreement (the “License Agreement”) sets forth the terms on which Arccos Golf LLC ("Arccos Golf", "we", "us" or "our") licenses each of its mobile device applications, as each may be updated by us from time to time (the “App”), running on a mobile device (a “Device”). The term “you” (and “yours”) means you, individually, or (if you are acting on behalf of your company or another organization) the entity you represent.
THIS LICENSE AGREEMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
THIS LICENSE AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
BY DOWNLOADING OR USING THE APP, BY ACQUIRING A SUBSCRIPTION (AS DEFINED HEREIN), OR BY CLICKING TO ACCEPT OR AGREE TO THIS LICENSE AGREEMENT WHEN THIS OPTION IS MADE AVAILABLE TO YOU, YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY THIS LICENSE AGREEMENT. ACCEPTANCE OF THIS LICENSE AGREEMENT CREATES A BINDING, LEGAL AGREEMENT BETWEEN YOU AND ARCCOS GOLF. YOUR USE OF THE APP IS ENTIRELY CONDITIONED ON AND SUBJECT TO YOUR COMPLIANCE WITH THIS LICENSE AGREEMENT AND THE OTHER DOCUMENTS INCORPORATED HEREIN. IF YOU DO NOT AGREE WITH THIS LICENSE AGREEMENT, DO NOT DOWNLOAD OR USE THE APP AND IF YOU ALREADY HAVE DOWNLOADED AND INSTALLED THE APP, IMMEDIATELY DELETE IT FROM EACH DEVICE ON WHICH YOU HAVE INSTALLED IT.
2. LICENSE GRANT
2.1 License. Subject to your agreement to and continued compliance with this License Agreement, Arccos Golf grants you a personal, revocable, limited, non-exclusive, non-transferable license (the “License”) to install the App on your Devices and to use the App for the duration of this License Agreement. Any use of the App in any other manner, including, without limitation, resale, transfer, modification or distribution of the App or text, pictures, music, barcodes, video, data, hyperlinks, displays, and other content associated with the App (“Content”) is prohibited. Notwithstanding the foregoing, Arccos Golf authorizes you to download, transmit and republish, for your personal (non-commercial) use, screenshots from the App showing your Golf Data (defined below), and images created by the social sharing function of the App, so long as you do not obscure or remove any trademarks on such images.
2.2 Updates. Arccos Golf may update the App to add, remove or modify functionalities or features or provide new versions, with or without prior notice (each an “Update”). This License Agreement shall apply to the App as it may be modified with an Update. Updates will be installed automatically if you enable auto-updating through your Device. Otherwise, the App will only be updated if you so choose at the time.
4.1 Age Restriction. Only individuals 13 years of age or older may obtain a Subscription and use the App. If you are at least 13 years old but younger than 18 years old, then you must review this License Agreement with a parent or legal guardian to ensure the parent or legal guardian acknowledges and agrees to this License Agreement. If your parent or legal guardian does not acknowledge and agree to this License Agreement, then you must immediately uninstall the App and discontinue its use.
4.2 Legal Compliance. You represent and warrant that you are (a) not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) not listed on any U.S. Government list of prohibited or restricted parties.
5. PERSONAL INFORMATION.
5.2 Information on Your Device. You are solely responsible for the confidentiality and security of User Information stored on your Device by the App. You agree to immediately notify Arccos Golf of any suspected unauthorized transactions associated with the App or any other breach of security related to the App or your Device. Arccos Golf shall not be responsible for any losses financial or otherwise, arising from the loss or theft of User Information due to unauthorized or fraudulent transactions related to the App. You are solely responsible for taking precautionary steps to protect your User Information stored on the Device, including but not limited to password-protecting your Device.
6. OWNERSHIP RIGHTS.
6.1 Ownership. The App is protected by international copyright laws, treaties and other laws. Arccos Golf, and its licensors, own and retain all right, title and interest in and to the App, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights. This License Agreement does not transfer to you any title to or in the App and you do not acquire any rights to the App, except for the License which is subject to your compliance with this License Agreement.
7. INDEMNIFICATION. You agree to indemnify and hold harmless Arccos Golf and its subsidiaries and affiliates, and its and their licensors, service providers, contractors, employees, agents, officers, and directors, successors, and assigns (each an “Arccos Party” and collectively the “Arccos Parties”), from all claims or causes of action, liabilities, damages, costs, fines, penalties, and expenses (including attorneys’ fees) occurring from or related to the use or misuse of the App and/or the Dashboard, violation of this License Agreement, or violations of any rights of a third party, or any allegation thereof. Arccos Golf reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate in asserting any available defenses.
8.1 Generally. In order for you to use the App, for your Golf Data to be uploaded from the App to the Website, and for you to be granted access to certain data or services, you will be required to acquire a Subscription from Arccos Golf. A Subscription may be available at no charge by special offer. Subscription fees, along with any required taxes, shall be paid on a periodic basis as indicated when you purchase the Subscription. All Subscription fees are payable in advance. If you change the frequency of renewal for your Subscription, the adjusted rate will take effect at the next billing date. If you upgrade your Subscription or add new categories of service to your account, such changes may result in a new Subscription renewal date. You agree to pay the Subscription fees and other charges you incur in connection with your Subscription, whether on a one-time or periodic basis. Arccos Golf reserves the right to increase Subscription fees or to institute new fees at any time upon reasonable advance notice. Such changes, if any, will be effective on your next Subscription renewal date.
8.2 Trial Periods. If you are provided a free trial period for your Subscription, then then the free trial period will last for the period of time specified when you enrolled. Free trials may be provided as part of the purchase of an Arccos Golf sensor product or a third-party product that incorporates an Arccos Golf sensor product. Free trials may not be combined with certain other offers, as specified. If you begin your Subscription with a free trial, we will begin billing your Payment Method for the periodic Subscription fees at the end of the free trial period of your Subscription, unless you cancel your Subscription prior to the end of the free trial period. Your Payment Method will be authorized as soon as you register for a free trial. In some instances, your available balance or credit limit may be reduced to reflect the authorization; however, no charges will be made against the Payment Method unless you do not cancel prior to the end of your free trial period.
8.3 Renewal and Cancellation. Your Subscription and your obligation to pay the associated fee will auto-renew until your Subscription is terminated. You may cancel your Subscription at any time by contacting Arccos Golf prior to the end of your then-current Subscription term. When you request cancellation of your Subscription, your Subscription will terminate immediately and you will lose access to all Golf Data and other data collected using the App and stored on the Device(s) on which the App is installed and on the Website.
9. TERM AND TERMINATION.
9.1 Term. This License Agreement and the License will commence on the date you agree to this License Agreement and continue until terminated as provided herein.
9.2 Termination by Arccos Golf. You agree that we may terminate the License and this License Agreement (a) immediately if you breach this License Agreement or we are required to terminate this License Agreement by law, or (b) for convenience with five (5) days’ notice; provided, however, that if you have a Subscription, any notice of termination for convenience will not be effective until the end of your then-current Subscription term. These remedies are in addition to any other remedies we may have at law or in equity.
9.3 Termination by You. You may cancel or elect to not renew your Subscription at any time by contacting Arccos Golf at firstname.lastname@example.org. If, after terminating your Subscription or, if you do not have a Subscription, at any time, you wish to terminate the License and this License Agreement, you can do so by stopping your use of the App and deleting all copies of the App from your Devices.
9.4 Effect of Termination. Once the License terminates, your right to use the App ends immediately and you must remove the App from each of your Devices. You are not entitled to any refund or other compensation for the termination of this License Agreement and the License in accordance with its terms. Sections 6, 7, 9, 10, 11 and 12 will survive the termination of this License Agreement for any reason.
9.5 Injunctive Relief. A breach, whether threatened or actual, of this License Agreement will cause us irreparable injury. Such injury may not be quantifiable in monetary damages, and we would not have an adequate remedy at law. Therefore, we are entitled, in addition to all other available remedies, to seek and be awarded an injunction or other appropriate equitable relief for any threatened or actual breach of this License Agreement.
10. DISCLAIMER OF WARRANTIES. THE APP IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. NEITHER ARCCOS GOLF NOR ANY PERSON OR ENTITY ASSOCIATED WITH ARCCOS GOLF MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE APP. WITHOUT LIMITING THE FOREGOING, NEITHER ARCCOS GOLF NOR ANYONE ASSOCIATED WITH ARCCOS GOLF REPRESENTS OR WARRANTS THAT THE APP WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT APP IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE APP WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. The foregoing does not affect any warranties that cannot be excluded or limited under applicable law.
11. LIABILITY LIMITS.
11.1 Disclaimer of Damages. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, IN NO EVENT SHALL ANY ARCCOS PARTY BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOSS, THEFT OR CORRUPTION OF USER INFORMATION, THE INABILITY TO USE THE APP OR THE DASHBOARD, OR ANY PRODUCT FAILURE OR MALFUNCTION. THE FOREGOING DISCLAIMER SHALL APPLY EVEN IF AN ARCCOS PARTY OR ANY AUTHORIZED REPRESENTATIVE OF ANY ARCCOS PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES OR INJURY CAUSED BY ERROR, OMISSION, INTERRUPTION, DEFECT, FAILURE OF PERFORMANCE, UNAUTHORIZED USE, DELAY IN OPERATION OR TRANSMISSION, LINE FAILURE, COMPUTER VIRUS, WORM, TROJAN HORSE OR OTHER HARMFUL COMPUTER CODE.
11.2 Maximum Liability. To the fullest extent provided by law, in no event will the collective liability of the Arccos Parties to any party (regardless of the form of action, whether in contract, tort, or otherwise) related to the App, a Subscription or the Dashboard, exceed the greater of $100 or the amount you have paid to Arccos Golf in connection with the App or a Subscription in the then most-recent twelve (12) months.
11.3 Exclusions. The terms of this Section do not apply to limit liability resulting from (a) our gross negligence or willful misconduct, to the extent such liability may not be limited or disclaimed; (b) death or bodily injury caused by the App; or (c) any other liability to the extent it cannot be excluded or limited under applicable law.
12.1 Governing Law and Jurisdiction. All matters relating to this License Agreement and the App, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims) (collectively “Claims”), shall be governed by and construed in accordance with the internal laws of the State of Delaware, USA, without giving effect to any choice or conflict of law provision or rule. Subject to Section 12.2, all Claims shall be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware, USA, in each case with jurisdiction over Wilmington, Delaware, although we retain the right to bring any Claim in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
12.3 Limitation on Time to File Claims. Any Claim must be commenced within one (1) year after the cause of action accrues. Otherwise, such Claim is permanently barred.
12.4 Waiver and Severability. No waiver by Arccos Golf of any term or condition set out in this License Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Arccos Golf to assert a right or provision under this License Agreement shall not constitute a waiver of such right or provision. If any provision of this License Agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of this License Agreement will continue in full force and effect.
12.6 Third Party Beneficiaries. You agrees that other Arccos Parties are third party beneficiaries to this License Agreement and may rely upon Sections 7 (Indemnification), 10 (Disclaimer of Warranties) and 11 (Liability Limits).
12.7 Force Majeure. Arccos Golf shall not be liable for any breach of this License Agreement to the extent arising from any factor outside our reasonable control.
12.8 Amendments. Arccos Golf may change or modify this License Agreement or any other Arccos Golf terms, conditions, or policies related to use of the App (including those identified in this License Agreement) at any time and at its sole discretion by posting revisions on the Website and within the App. Any such change will be effective upon your next Subscription renewal date. Continued use of the App on and after such Subscription renewal date will constitute your acknowledgement and agreement to such changes or modifications. Only a specific, written waiver signed by an authorized representative of Arccos Golf shall have any legal effect as a waiver by Arccos Golf of any of the terms of this License Agreement.