Updated November 1, 2022
Terms of Service
Terms of Service
Effective November 1, 2022
Welcome to foreUP!
These Terms of Service, together with your License Agreement (including the Proposal/Pricing section) and other Addenda, form the legally-binding “Agreement” between you, our client (“Client,” “you,” or “your”), and Golf Compete, Inc. d/b/a foreUP (together with our subsidiaries, successors and assigns, “foreUP,” “we,” “us” or “our”). Please read these Terms of Service carefully.
1. DEFINITIONS. The definitions below will help you better understand the Agreement. Bolded terms not defined below will have the meanings set forth elsewhere in the Agreement.
“Addendum” or “Addenda” mean(s) any document(s) which provide(s) new or supplemental terms to the Agreement, including any schedules, exhibits or amendments thereto.
“Affiliate” or “Affiliates” mean(s), for a party, any other entity that controls, is controlled by, or under common control with, the party. The term “control,” as used in this definition, means the direct or indirect power to direct the affairs of the other entity through at least 50% of the shares, voting rights, participation, or economic interest in this entity.
“Approved Location” or “Approved Locations” mean(s) those of Client’s business locations authorized to receive Services, as identified in the License Agreement or elsewhere in the Agreement.
“Authorized User” means an individual (either an employee or an authorized third-party agent of Client) with rights to access Client’s account associated with use of the Services at the Approved Locations.
“Billing Start Date” means the date on which Client’s payment of Fees for Services will begin. Unless otherwise stated in the License Agreement, the Billing Start Date will be the Effective Date.
“Claim” or “Claims” mean(s) a claim, action, complaint, or legal regulatory body, administrative or judicial proceeding filed against a party.
“Confidential Information” means non-public or proprietary information about a disclosing party’s business related to technical, commercial, financial, employee, or planning information that is disclosed by the disclosing party to the other party in connection with the Agreement, and (a) is identified in writing as confidential at the time of disclosure, whether in printed, textual, graphic, or electronic form; or (b) is not identified as confidential at the time of disclosure, but is by its nature confidential or the receiving party knows, or ought reasonably to know, is confidential. All information provided by foreUP to Client with respect to the Services, and the terms and conditions of the Agreement (including the pricing that foreUP has offered to Client) will be considered Confidential Information of foreUP without any marking or further designation. Client Data will also be considered Confidential Information of Client without any marking or further designation. “Confidential Information” does not include information that (i) has become public knowledge through no fault of the receiving party; (ii) was known to the receiving party, free of any confidentiality obligations, before its disclosure by the disclosing party; (iii) becomes known to the receiving party, free of any confidentiality obligations, from a source other than the disclosing party; or (iv) is independently developed by the receiving party without use of Confidential Information.
“Client” means the golf course, business entity, non-profit or municipality identified in the License Agreement as the “Client,” or is otherwise identified in the Agreement as foreUP’s client.
“Client Content” means any material, such as audio, video, text or images, that is loaded or imported into the Site or Services by or on behalf of Client.
“Client Data” means any information that is loaded or imported by or on behalf of Client into the Site or Services from Client’s internal data stores or other third-party data providers or is collected in connection with Client’s use of the Site or Services. Client Data includes, without limitation, Client Content and End User Data.
“Documentation” means the applicable technical specification and usage documentation for foreUP’s products and services as such materials may be made available through www.foreupgolf.com or another source.
“End User” or “End Users” mean(s) the individual(s) who access(es) the Site and interact(s) with foreUP’s Services. End Users may include Client’s customers, members, patrons, viewers or guests.
“End User Data” means data and information about or relating to a particular End User. End User Data may include an End User’s personal data and his/her tokenized cardholder information.
“Fees” mean the fees associated with the Services, in addition to all other costs and charges permitted by the Agreement. Fees may be charged on a one-time or recurring basis. Specific Fees for Services are described in the Proposal/Pricing section of the License Agreement.
“foreUP Partner” means an entity that is appointed by foreUP to process orders, resell foreUP’s products and services, or provide technical equipment or hardware.
“foreUP Technology” means technology owned by foreUP or licensed to foreUP by a third party (including reports, software tools, algorithms, software (in source and object forms), user interface designs, architecture, toolkits, plug-ins, objects and Documentation, network designs, processes, know-how, methodologies, trade secrets and any related Intellectual Property Rights throughout the world) and feedback made to foreUP that is incorporated into any of the foregoing (which are hereby irrevocably assigned to foreUP), as well as any of the modifications, or extensions of the above, whenever or wherever developed.
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“License Agreement” means the document describing the Services to be provided by foreUP and the Fees for Services to be paid by Client (as listed in the Proposal/Pricing section), as well as any supplemental terms and conditions.
“Merchant Agreement” means the Merchant Application and Agreement and Payment Terms and Conditions which govern Payment Services provided by foreUP (as a payment facilitator) to Client (as the merchant).
“Payment Services” mean foreUP’s payment and billing-related services as may be made available through the Services.
“Professional Services” means any consulting, training, marketing, implementation or technical services provided to Client by foreUP or an authorized foreUP subcontractor, as set out in the License Agreement or a separate Statement of Work.
“Sensitive Personal Data” means an individual’s financial information, sexual preferences, medical or health information protected under any health data protection laws, biometric data (for purposes of uniquely identifying an individual), personal information of children protected under any child protection laws (such as the personal information defined under the US Children’s Online Privacy Protection Act (“COPPA”)) and any additional types of information included within this term or any similar term (such as “sensitive personal information” or “special categories of personal information”) as used in applicable data protection or privacy laws.
“Services” mean the specific foreUP products and services provided to Client, as set out in the License Agreement.
“Site” or “Sites” mean(s) the customized website or websites that foreUP designs, builds and licenses to Client for use in connection with the Services. In certain instances, Client will already have or choose to develop their own website and integrate the Services with such Client-owned-and-managed website.
“Team” includes all foreUP employees, officers, directors, owners, agents and representatives.
“Term” means the Initial Term and any Renewal Term(s), as further described in the License Agreement.
2. PAYMENT OF FEES. This section applies only if your License Agreement is directly with us. If your License Agreement or sales order is with a foreUP Partner, then the payment terms will be as agreed between you and the applicable foreUP Partner.
2.1 Payments. You agree to pay all Fees described by the Agreement, including all Fees for Services. The License Agreement will set forth your chosen method of payment, invoice frequency and other payment terms. Unless otherwise noted in the License Agreement, all invoices will be due within 30 days from the invoice date. By default, upon the commencement of Services, you will be prompted to enter payment information via a secure automated electronic payment system. Upon entering your payment information (either ACH or credit card), the system will automatically generate invoices in accordance with the payment frequency referenced in the License Agreement. If you opt-out from using the automated electronic payment system in favor of submitting manual paper checks, then you will be required to pay for the next full year (a 12-month period) in advance. These payment methods and the process described herein will supersede any verbal statements to the contrary. We reserve the right to charge you interest at a monthly rate equal to the lesser of 1.5% per month or the maximum rate permitted by applicable law on any overdue Fees from the due date until the date the overdue amount (plus applicable interest) is paid in full. In addition, we reserve the right to charge you a $100 late fee if payment is not made within 30 days from invoice receipt. Except as permitted by the Agreement, all Fees paid are non-refundable. Fees paid are based on Services provided and not actual usage. Any Fees that remain unpaid as of the date of termination or expiration of the Agreement will become immediately due and payable.
2.2 Tee Time Trade Option (As Applicable). If “Trade Option Trade Option” is selected as a method of payment, then you expressly authorize us to collect Fees for Services directly through an exchange of tee times at the Approved Location(s). The Trade Option will be based on our right to collect all fees related to tee times (including, without limitation, greens fees, cart fees and related tee time bookings fees) up to the total number of “Tee Times Per Day” as set forth in the License Agreement (collectively, “Tee Time Trade Fees”). We reserve the right to manage and account for Tee Time Trade Fees in our sole discretion, including, without limitation, permitting tee times to be filled with up to four players (including cart fees) and/or discounting the greens fees associated with tee times. Our right to receive Tee Time Trade Fees will apply at each of the Approved Locations commencing on the Billing Start Date. Our right to receive Tee Time Trade Fees will apply to the first tee times of the day and will not accumulate or roll over to the next day if no tee time are sold in a given day. You will be required to activate the online bookings portal for tee times, either on the Site or through your own website (as applicable), within 30 days from the Effective Date of the Agreement or on the Approved Location’s opening date, whichever happens first. If you fail to make the online bookings portal for tee times available within 30 days from the Effective Date or disable online bookings at any time during the Term of the Agreement, then you will be required to pay an additional $1,000 each month until such time as the online bookings portal has been launched at the Approved Locations or the online bookings feature has been re-enabled.
2.3 Failure to Pay. If you fail to pay any amount due under the Agreement (and you have not disputed the invoice as described in Section 2.4 below), then we will send you a notice reminding you that payment remains outstanding. If you fail to pay within 15 days following the date of this reminder notice, then we reserve the right to suspend or restrict your access to the Site or use of Services until payment is made in full. If your failure to pay Fees continues for more than 30 days following your receipt of the reminder notice, then we shall have the right to declare you in default of the Agreement.
2.4 Payment Disputes. If you believe, in good faith, that we have incorrectly billed you for Services, then you must contact us in writing within 30 days of the invoice date with sufficient detail for us to identify the alleged error and be able to properly investigate it. Unless you notify us of a payment dispute, you will be responsible for paying our reasonable collection costs (including our reasonable attorneys’ fees, as applicable). You will be required to pay the undisputed portion of any invoice when due.
2.5 Fee Increases. We reserve the right to increase Fees for Services no more than once annually beginning 12 months from the Effective Date and continuing on the same anniversary date each year thereafter. We will cap any fee increase year over year at 4.0% or the increase in the Consumer Price Index for all Urban Consumers (CPI-U), whichever is greater, and will provide you with a 60-day notice prior to any such increase taking effect.
2.6 Taxes. The Fees described in the Proposal/Pricing section of the License Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property or similar taxes, if any. You agree to pay all such taxes (excluding U.S. taxes based on our net income). If you believe you are not subject to the payment of taxes, you must provide us with a tax-exemption certificate prior to entering into a License Agreement. If we are providing you with Payment Services, we will be obligated to comply with valid tax liens or levies associated with your account. If we are required to pay any taxes on your behalf, then you agree to reimburse us for such amounts within 30 days from your receipt of a special tax-related invoice.
3.1 Delivery of Services. If we are building a Site on your behalf, then Site delivery occurs when you accept final Site design and the Site goes live. All other Services will be considered delivered within three (3) business days following the Effective Date unless a later delivery date is specified in the License Agreement.
3.2 Grant of Licensed Rights. Subject to the terms and conditions of the Agreement (including your payment of all Fees), we grant you, during the Term, a limited term, non-exclusive, non-transferrable license to: (a) permit your Authorized Users and End Users to access the Site (as applicable) and use the Services through our approved interfaces and proprietary foreUP Technology; and (b) access the Site (as applicable) and use Services in the lawful operation of your business at the Approved Location(s) specified in the License Agreement. These licensed rights do not constitute a sale and do not convey to you or any third party any right of ownership in or to the Site (as applicable), Services, foreUP Technology, or any of the Intellectual Property Rights therein. All rights not specifically granted under the Agreement are expressly reserved to us.
3.3 License Restrictions. Except to the extent expressly permitted by the Agreement, you agree, as a condition of the license grant, that you are restricted from and must not:
(a) use the Site (as applicable) or Services (i) in violation of applicable law or regulation (including, where applicable, the ADA, COPPA, CAN-SPAM, TCPA, or the Do-Not-Call Implementation Act), or in connection with such unlawful material (such as material that violates any obscenity, defamation, harassment, privacy, publicity or intellectual property laws); or (ii) in a manner that would cause a material risk to the security or operation of the Site, Services or foreUP Technology, or to any of our other customers;
(b) copy, distribute, republish, download, display, sell, rent, lease, host or sub-license the Site (as applicable) or Services;
(c) intentionally try to bypass a security mechanism of the Site (as applicable) or Services, or intentionally transmit material which contains viruses, Trojan horses, worms or some other harmful computer program;
(d) attempt to interact with the operating system, networks or software underlying the Site or Services, or any foreUP Technology, or modify, create derivative works of, adapt, translate, reverse-engineer, decompile, or otherwise attempt to discover the underlying technology of the Site or Services, the source code, data representations, or underlying algorithms, processes and methods associated with any foreUP Technology;
(e) remove, obscure, or alter any proprietary notices associated with the Site (as applicable), Services or foreUP Technology;
(f) use any software components, modules, functionalities, features or other services that may be delivered with the Site (as applicable) or Services, but which are not licensed to you and identified in the License Agreement;
(g) send unsolicited advertising, marketing or promotional materials, whether by email or text, without the recipient’s legally valid consent; or
(h) violate the Agreement.
We reserve the right to immediately suspend or discontinue your access to the Site (as applicable) or use of the Services if we have reason to believe you are, or may be, acting in violation of these license restrictions.
3.4 Site Design & Build (As Applicable). The following terms and conditions apply if we are designing and building a Site on your behalf:
(a) You do not own the Site. You own the URL/domain name and the Client Content loaded or imported to the Site, but we own the Site itself (including the Site’s design). You and your Authorized Users and End Users have rights to access the Site subject to the terms of the Agreement.
(b) We will permit two (2) rounds of Site design changes included with your payment of Fees. After the second round of Site design changes, we reserve the right to charge you a Site design fee of $250 for each additional round.
(c) In order to effectively deliver the Site, you must actively participate in the Site’s design. To these ends, you will be required to designate a primary point of contact for all Site-related matters.
(d) You will be responsible for responding to our requests for Site-related information (including, without limitation, requests for Client Content) within 24 hours. We will not be responsible for Site launch delays outside of our control, including, without limitation, delays caused by your failure to promptly communicate or provided requested information.
(e) You will be required to provide a written sign-off prior to Site launch. Subsequent Site design changes post launch will be subject to our standard hourly rates, as may be revised from time to time.
(f) You must secure a URL/domain name prior to Site launch. Upon your written request (email is sufficient), we can secure a URL/domain name on your behalf but will charge you the cost of the URL/domain name registration plus a $35 administrative fee.
(g) You are also responsible for securing an SSL certificate as associated with the Site through an approved provider. The SSL certificate must remain valid and in good standing while the Site is active.
(h) Although foreUP will design, build and maintain the Site, you acknowledge that we are not a full-service website design or remediation shop. While we will use commercially reasonable efforts to meet then-current WCAG 2.0 AA standards for website accessibility by those with disabilities, we cannot and do not guarantee Site compliance with all federal or state laws and disclaim all liability related thereto. You may consult with an independent website design shop at your cost if you believe additional website accessibility changes may be needed to the Site.
3.5 Payment Services. If we are providing you with Payment Services, then you will be required to enter into a separate Merchant Agreement with us. All foreUP clients receiving Payment Services are required to undergo risk underwriting and be approved for receipt of Payment Services. By entering into the Agreement and receiving Payment Services, you expressly authorize us to run credit checks and complete risk underwriting through our normal procedures on your account.
3.6 Beta Services. We may, from time to time, offer services identified as beta, pilot, developer preview, evaluation or by a similar description (“Beta Services”). You are not required to use Beta Services; it will always be your choice. Beta Services are provided only for non-production, evaluation purposes. We may discontinue Beta Services at any time in our sole discretion and may never make Beta Services generally available.
3.7 Third-Party Services. We may, from time to time, make available certain features or functionalities that allow you to integrate the Site (as applicable) or Services in conjunction with products or services provided by third parties (collectively, “Third Party Services”). You are solely responsible for complying with any applicable terms and conditions for Third-Party Services. Any terms for Third-Party Services will be considered separate from the Agreement.
4. PROFESSIONAL SERVICES. Unless expressly provided otherwise in the License Agreement or a separate Statement of Work:
4.1 License to Deliverables. Without limiting or modifying any license granted to you for the Site (as applicable) or Services, we grant you a non-exclusive, non-sublicensable and non-transferrable license to use the materials developed and provided in our performance of Professional Services (“Deliverables”) solely in connection with your access to the Site and use of Services at the Approved Locations during the Term. We retain all rights, title and interest (including Intellectual Property Rights) in and to the Deliverables. To the extent you participate in the creation or modification of any Deliverables or foreUP Technology, you irrevocably assign to us all rights, title and interest (including Intellectual Property Rights) in such Deliverables or foreUP Technology.
4.2 Employment Taxes and Obligations. We are responsible for all taxes and any employment obligations arising from our employment of personnel and contractors in the performance of Professional Services.
4.3 Warranty. We warrant that Professional Services will be performed in a professional and workmanlike manner. You must notify us in writing of any breach of this warranty within 30 days of performance of the Professional Services. To the extent permitted by law, your sole and exclusive remedy for breach of this warranty and foreUP’s sole liability under or in connection with this warranty will be re-performance of the relevant Professional Services.
4.4 Use of Subcontractors. You agree that we may use subcontractors in the performance of Professional Services. Where we subcontract any of our obligations concerning Professional Services, we will not be relieved of our obligations to you under the Agreement.
5.1 Changes to these Terms of Service. We shall have the right to modify these Terms of Service at any time to reflect changes in our policies, industry requirements or applicable law. We may post Minor Changes to www.foreupgolf.com without notifying you in advance. A “Minor Change” is any modification to the Terms of Service that does not reduce your legal rights under the Agreement. We will notify you at least 10 days in advance of any Material Change to the Terms of Service by emailing you at the contact address associated with your account. A “Material Change” is any modification in the Terms of Service that reduces your legal rights under the Agreement. If you object to a Material Change within 10 days of notification, then the Material Change will not apply to you and you will continue to be subject to the previous, unmodified version of the Terms of Service; provided, however, that the Material Change will automatically take effect at the start of your Renewal Term without further notice. The most current version of the Terms of Service can always be accessed at www.foreupgolf.com.
5.2 Changes to the Proposal/Pricing Section of the License Agreement. You can add or remove Services during the Term provided that we agree to such changes in writing. Our practice will be to document any changes to Services in an updated invoice which we will send to you for review. If you disagree with the addition or removal of Services (and any associated fees) as reflected in the updated invoice, please notify us immediately. If you pay the updated invoice, accept the benefits of added Services, or fail to object to the updated invoice within 14 days after you receive it, then you will be considered to have accepted the changes, which will be considered a valid modification of the then-current License Agreement in place.
5.4 Other Changes to the Agreement. Except as otherwise stated herein, no modification of the Agreement will be binding unless in writing and manually signed by an authorized representative of the parties.
5.5 Enhancements. Our goal is to continually improve our foreUP Technology and the Services we provide to you. We may, from time to time, update our foreUP Technology or Services to include enhancements, add new features or functionalities, or upgrade the Site (as applicable) (collectively, “Enhancements”). Whenever possible, we will provide you with advance notice of the release of any Enhancements. Unless we state otherwise, you will not be charged extra for your use of Enhancements.
6. TERM, TERMINATION & SUSPENSION
6.1 Term & Automatic Renewal. The Agreement will become active as of the Effective Date and will remain in effect until terminated in accordance with the Agreement. The Term (including the Initial Term and any Renewal Term(s)) is described in your License Agreement. If no Term is specified, then the Agreement will be considered month-to-month, terminable by either party with a 30-day written notice. Unless you provide us with written notice of your intent to terminate the Agreement at least 90 days prior to the expiration of the Initial Term or any Renewal Term, as applicable, the Agreement will continue to automatically renew for successive Renewal Terms until properly terminated in accordance with the Agreement.
6.2 Termination for Cause.
(a) By Either Party. Either party may terminate the Agreement for cause if the other party: (i) fails to cure any material breach of the Agreement, including a failure to pay Fees, within 30 days after written notice; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party and is not dismissed within 60 days.
(b) By Client. In addition to the termination rights described above in Section 6.2(a), you may terminate the Agreement for cause and without penalty if you can present us with evidence that the funding appropriations supporting your payment obligations under the Agreement have been eliminated during the Term.
(c) By foreUP. In addition to the termination rights described above in Section 6.2(a), we may terminate the Agreement for cause and without penalty if, after the Effective Date, we discover that providing the Site (as applicable) or Services, or some part thereof, is prohibited by law or has become impractical or unfeasible due to a legal or regulatory reason.
6.3 Suspension Rights. In addition to any of our other rights and remedies (including, without limitation, our termination rights), we reserve the right to suspend your access to the Site (as applicable) or use of Services: (a) if you fail to pay Fees; (b) if you are, or if we have reason to believe, you are violating the License Restrictions described in Section 3.3 above; (c) if you are in material breach of the Agreement; (d) if we deem the suspension necessary to protect the availability, integrity, resilience or security of the Site, the Services or our foreUP Technology; or (e) as required by law or by judicial authority.
6.4 Effect of Termination. Upon expiration or earlier termination of the Agreement, your licensed right to access the Site (as applicable) and use Services shall automatically terminate and we may delete your Client Data at the conclusion of the Retrieval Period (described below) unless otherwise prohibited by applicable law.
6.5 Retrieval Period & Retention. Unless we have mutually agreed on an alternate timetable, upon expiration or termination of the Agreement for any reason, you will have 30 days to retrieve your Client Data through our standard off-boarding procedures, as may be revised from time and time, and subject to your payment of our then-current off-boarding fees (“Retrieval Period”). We shall have no obligation to return your Client Data unless and until you have paid all Fees owed. Once the Retrieval Period ends, we may, but shall have no obligation to, keep a copy of your Client Data for archival purposes at our cost for up to 12 months, unless a longer retention period is required by applicable law.
6.6 Survival. The terms of this Section 6 and the terms of the following Sections will survive the expiration or termination of the Agreement: Sections 7 (Intellectual Property), 8 (Confidentiality), 9 (Representations, Warranties and Disclaimers), 10 (Indemnification), 11 (Limitations of Liability), 12 (Dispute Resolution), and 15 (General Terms).
7. INTELLECTUAL PROPERTY
(a) By Client. You own (or, where applicable, must ensure that you have a valid license to) the URL/domain name associated with the Site (as applicable) and your Client Data (including, without limitation, your Client Content), subject to our underlying Intellectual Property Rights in the foreUP Technology.
(b) By ForeUP. All rights in and to the Site (as applicable), Services and foreUP Technology, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain our sole and exclusive property. You will not permit any third party to take any action with respect to Site access or use of Services that is not expressly authorized under this Agreement.
7.2 Permitted Use. You grant us and our Affiliates a non-exclusive, worldwide, royalty-free license to use, copy, transmit, sub-license, index, store, and display your Client Data (including, without limitation, Client Content) to the extent necessary to perform our obligations (including, but not limited to, developing, modifying, improving, supporting, customizing, and operating the Site and providing our Services) or enforce our rights under this Agreement; or where required or authorized by law. We may use, copy, transmit, index and model Client Data for the purpose of developing, improving or customizing the Services, and publishing, displaying and distributing any anonymous information (i.e., information where neither you nor your End Users are capable of being identified which may be aggregated with other of our clients’ anonymous information) derived from Client Data.
7.3 Client Feedback. You may, but are not required to, provide us with feedback and suggestions about the Site (as applicable) or Services (collectively, “Feedback”). If you provide Feedback, then we and our Affiliates may use that Feedback without restriction and financial obligation to you. You agree that your submission of Feedback will be gratuitous, non-confidential, unrestricted and made without any right to receive compensation in return.
8. CONFIDENTIALITY. The receiving party will treat Confidential Information with reasonable care and disclose only on a need-to-know basis or as permitted under this Agreement. The receiving party will only use Confidential Information for the purposes of performing its obligations or as permitted under this Agreement. However, a receiving party may disclose Confidential Information: (a) if approved by the other party in writing; (b) if required by law or regulation; (c) in the event of dispute between the parties, as necessary to establish the rights of either party; or (d) by us as necessary to provide the Services. In the case of (b) and (c), the disclosing party will provide reasonable advance notice to the other party and provide reasonable assistance to limit the scope of the disclosure unless prohibited by law or regulation. The receiving party is responsible for ensuring that its representatives and Affiliates fully comply with the obligations of the receiving party under this section.
9. REPRESENTATIONS, WARRANTIES & DISCLAIMERS
9.1 General Representations and Warranties. Each party represents and warrants that: (a) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (b) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (c) the Agreement is legally binding upon it and enforceable according to its terms; and (d) the execution, delivery and performance of the Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
9.2 Client Representations. You represent and warrant that: (a) you are solely responsible for your own Client Content, including without limitation, the accuracy, security, appropriateness and completeness of your Client Content; (b) you agree not to collect, process or store Sensitive Personal Data in connection with the Site (as applicable) or your receipt of Services; (c) you have the necessary rights and licenses, consents, permissions, waivers and releases to use and display your Client Content; (d) your Client Content (i) does not violate, misappropriate or infringe any of our rights or the rights of third parties, (ii) does not constitute defamation, invasion of privacy or publicity, or otherwise violates the rights of a third party, and (iii) is not designed for use in any illegal activity or to promote illegal activities, including, without limitation, use in a manner that might be libelous or defamatory or otherwise malicious, illegal, harmful to any person or entity or discriminatory based on race, sex, religion, nationality, disability, sexual orientation or age; or (e) your Client Content, to the best of your knowledge, does not contain any unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code.
9.3 foreUP Limited Warranty. We represent and warrant that: (a) we own the appropriate rights to license or sublicense the Site and Services; and (b) to the best of our knowledge, the Site and Services will be provided free of viruses, malware, spyware, ransomware or other harmful code. You must notify us of a claim under this limited warranty within 45 days of the date on which the condition giving rise to the claim first appeared. To the extent permitted by law, your sole and exclusive remedy, and our sole liability under or in connection with this warranty, will be the replacement of the Site or Services, or, if there has been a service level failure under an applicable Service Level Agreement, then your sole remedy will be as set forth in the Service Level Agreement.
9.4 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.3 ABOVE, THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. WE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT YOUR ACCESS TO THE SITE OR USE OF SERVICES WILL BE UNINTERRUPTED OR BUG, VIRUS OR ERROR-FREE. WE ALSO DO NOT WARRANT THAT WE WILL INDEPENDENTLY REVIEW YOUR CLIENT DATA (INCLUDING CLIENT CONTENT) FOR ACCURACY OR LEGALITY. FOREUP AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL LIABILITY FOR THIRD-PARTY SERVICES, BETA SERVICES, HARDWARE OR SITE COMPLIANCE WITH ACCESSIBILITY STANDARDS, INCLUDING, WITHOUT LIMITATION, SECTION 508 OF THE REHABILITATION ACT OF 1973, AS AMENDED (29 U.S.C. § 794d), AND ITS IMPLEMENTING REGULATIONS SET FORTH AT TITLE 36, CODE OF FEDERAL REGULATION, PART 1194, OR THE AMERICANS WITH DISABILITIES ACT.
If you are a California resident, you waive California Civil Code § 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
10.1 Indemnification by foreUP. We will indemnify you and your directors, officers, agents and employees from and against any losses or liabilities (including, without limitation, attorneys’ fees and costs) related to Claims to the extent caused by the infringement or alleged infringement of U.S. intellectual property rights of a third party due to your access to the Site (as applicable) or use of the Services, excluding infringement or alleged infringement that arises or results from: (a) your access to the Site or use of Services in a manner not permitted by the Agreement; (b) any modification to the Site or Services made by you; (c) use of the Site or Services in combination with any other service, platform, process or materials with which the Site or Services is not intended to be combined; (d) your continued use of the infringing or allegedly infringing Site or Service (or any part or component alleged to be infringing thereof) after you have been provided with modifications or other remedies to avoid the alleged infringement; or (e) Client Content.
10.2 Indemnification by Client. You will indemnify us, our Team and our Affiliates, and each of their directors, officers, agents and employees, from and against all losses and liabilities (including, without limitation, attorneys’ fees and costs) related to Claims to the extent caused by: (a) your violation of any applicable law or regulation; (b) your breach of the Agreement, including, without limitation your misuse of the Site or Services in violation of the License Restrictions described in Section 3.3; (c) your Client Content; (d) your fault in any incident resulting in the loss or unauthorized access to client data; or (e) any other indemnifiable event described elsewhere in the Agreement.
10.3 Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (a) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (b) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (c) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim. Indemnifying Party is not permitted to enter into any settlement with respect to a Claim other than one for purely money paid by Indemnifying Party with a full release of liability with respect to Indemnified Party without Indemnified Party’s prior written consent, which will not be unreasonably withheld.
11. LIMITATIONS OF LIABILITY. EXCEPT FOR LIABILITY WHICH, BY LAW, CANNOT BE LIMITED (“EXCLUDED CLAIMS”), TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT:
11.1 IN NO EVENT SHALL WE OR ANY MEMBER OF OUR TEAM BE LIABLE OR RESPONSIBLE TO YOU FOR LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (WHERE SUCH DATA IS LOST IN THE COURSE OF TRANSMISSION FROM YOUR SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF OURS), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY OTHER TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR FOR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THIS AGREEMENT REGARDLESS OF WHETHER YOU OR YOUR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
11.2 OUR TOTAL AGGREGATE LIABILITY TO YOU, ANY AFFILIATE, OR ANY THIRD PARTY ARISING OUT OF THE AGREEMENT, THE SITE (AS APPLICABLE) OR ANY OF OUR SERVICES (INCLUDING, WITHOUT LIMITATION, PAYMENT SERVICES AND PROFESSIONAL SERVICES) SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU OVER A PERIOD OF ONE (1) MONTH CALCULATED FROM THE TIME PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO SUCH LIABILITY. MULTIPLE CLAIMS WILL NOT INCREASE THE MAXIMUM AGGREGATE LIMIT DESCRIBED HEREIN.
11.3 YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THE AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES CHARGED, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES AGREE THAT THE LIABILITY LIMITS SET FORTH HEREIN ARE A MATERIAL BASIS OF THE BARGAIN AND ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THE AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
11.4 TIME LIMITATION. YOU FURTHER AGREE THAT ANY CLAIM WHICH YOU MAY HAVE AGAINST US MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE, OTHERWISE THE CLAIM SHALL BE PERMANENTLY BARRED.
12. DISPUTE RESOLUTION. Each party agrees that be¬fore it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it shall provide written notice to the other party of the specific issue(s) in dispute and reference the relevant provisions of the Agreement which are allegedly being breached. Within 30 days after such notice, knowledgeable executives for the parties shall hold at least one meeting (in person or by video-or-tele-conference) for the purpose of attempting, in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures, or unless otherwise required by law or judicial decision. These dispute resolution procedures shall not apply to Claims that involve: (a) your non-payment of Fees; (b) a party’s indemnity obligations; (b) a party seeking a provisional remedy related to claims of misappropriation or ownership of Intellectual Property Rights, trade secrets or Confidential Information; or (c) equitable or injunctive relief.
13.1 Notices to Client. All notices provided by us to you under the Agreement will be delivered: (a) in writing by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address listed in the License Agreement; or (ii) by email to the email address for the primary contact listed in the License Agreement.
13.2 Notices to foreUP. All legal notices provided by you to us under the Agreement must be delivered: (a) in writing by Courier or U.S. mail to Golf Compete, Inc. d/b/a foreUP, Attn: Legal, 1064 N. County Blvd., Pleasant Grove, UT 84062; or (b) by email to email@example.com. All other notices provided by you to us under the Agreement must be delivered to firstname.lastname@example.org.
13.3 Delivery of Notices. All notices shall be deemed to have been given immediately upon delivery by email, or, otherwise if delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.
14. CLIENT ACKNOWLEDGEMENTS. You understand, acknowledge and agree that:
14.2 Implementation / Remote Access. Most of the time, we accomplish implementation of the Services remotely, via video-conference calls or through remote access to your technology systems. Where we seek to implement the Site (as applicable) or Services through remote access, by entering into an Agreement with us, you hereby grant us remote access to your technology systems for the limited purpose of implementing the Site or Services. We will use commercially reasonable efforts to comply with your published security-related protocols or policies so long as you have provided us a copy prior to implementation. You will provide us with all reasonable assistance in implementing the Site (as applicable) or Services and will bear any costs associated with our remote access to your technology systems.
14.3 Connectivity Issues. We will not be responsible for any internet speed or connectivity issues at the Approved Locations, or any other problems related to or arising from Third Party Services, including, without limitation, technology equipment or hardware made available by or through a foreUP Partner.
14.4 Non-Discrimination. We will not discriminate in our employment practices and will provide the Site (as applicable) and Services without regard to race, color, religion, sex, sexual orientation, age, national origin, veteran’s status, political affiliation, or disabilities. We will abide by the requirements of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, the Vietnam Era Veteran’s Readjustment Assistance Act of 1974; Title IX of the Education Amendments of 1972, and the Fair Housing Act of 1968, as amended.
14.5 Anti-Bribery. Your employees, agents or representatives have not received or been offered any illegal or improper bribe, kickback, gift, or thing of value from us, or any member of our Team, in connection with the Agreement. If you learn of any violation of the above restrictions, you agree to promptly notify us.
14.6 Export Controls. The software supporting the Site (as applicable) or Services may be subject to U.S. Export Control Laws and Regulations and other applicable export laws and regulations (“Export Control Laws”). Export Control Laws have been set up by the U.S. government to keep certain goods and services from reaching other countries, usually because of security concerns or trade agreements. None of our software may be downloaded or otherwise exported (or re-exported) in violation of Export Control Laws. You agree that you will not, directly or indirectly, allow the Services, or the software supporting the Site to be accessed or generated from within, or distributed or sent to, any prohibited or embargoed country as mentioned in any Export Control Laws. In addition, you certify that neither you nor any of your principals, officers, directors or any person or entity you know to be directly involved with your use of the Site or Services designated on any U.S. government list of prohibited or restricted persons.
14.7 Electronic Consent. You consent to doing business with us electronically, meaning that you agree that all of our contractual understandings, policies and communications, including all notices and instructions, may be presented, delivered, stored, retrieved, and transmitted electronically. Your electronic signature, including, without limitation clicking “Agree and Continue” or “I Accept” or an action of similar meaning or significance, shall be the legal equivalent of your manual signature. You may withdraw your consent to doing business electronically at any time by contacting us and withdrawing your consent. The Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but such counterparts together shall constitute one and the same instrument. Delivery of executed counterparts by email, .PDF, or other electronic delivery method shall be effective as delivery. Electronic signatures, including any click-sign process, will be deemed as original.
15. GENERAL TERMS
15.1 Promotion. By entering into the Agreement, you hereby authorize us to use your name and logo (“Marks”) to indicate the existence of a business relationship in our marketing or other promotions including, without limitation, posting such Marks on www.foreupgolf.com, in a press release, or in any other marketing or promotional materials. You may withdraw your consent to our use of your Marks by sending us a written notice.
15.2 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in its entirety in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities to such party’s successor. We may assign this Agreement in its entirety to any of our Affiliates. Any attempt to transfer or assign this Agreement except as expressly authorized under this section will be null and void.
15.3 Severability. If a court of competent jurisdiction holds any provision of this Agreement to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
15.4 Interpretation. Section headings are inserted for convenience only and shall not affect the construction of the agreement. Wherever the context requires, the singular shall include the plural, the masculine gender shall include the feminine and neuter gender, and “and” shall include “or.” The parties acknowledge that this Agreement was initially prepared by foreUP. Both parties, however, have had an opportunity for legal review of all terms. The parties therefore agree that, in interpreting any issues which may arise, any rules of construction related to which party prepared the Agreement will be inapplicable, each party having contributed or having had the opportunity to clarify any issues.
15.5 No Waiver. No failure or delay by either party in exercising any right under the Agreement including, without limitation, these Terms of Service, will constitute a waiver of that right.
15.6 Governing Law & Venue. The Agreement shall be governed by the laws of the State of Utah, without reference to conflict of laws principles. Any disputes under the Agreement shall be resolved in a court of general jurisdiction in Utah County, Utah. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to the Agreement, your use of the Services, or your access to the Site (as applicable).
15.7 Relationship. The parties will be considered independent contractors in the performance of each and every part of the Agreement. Nothing in the Agreement is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Each party will be solely responsible for their respective employees and agents and respective labor costs and expenses arising in connection with those employees and agents.
15.8 Force Majeure. We shall not be in default under any provision of the Agreement or be liable for any delay, failure of performance or interruption in our Services or the Site (as applicable) resulting from any cause beyond our reasonable control, including, but not limited to: earthquake, lightning or other acts of God; fire or explosion; electrical faults; vandalism; cable cut; water; hurricanes; fire; flooding; severe weather conditions; actions of governmental or military authorities; national emergency; volcanic eruptions; insurrection; riots or war; terrorism or civil disturbance; zombie apocalypse, global pandemics; strikes; lock-outs; work stoppages or other labor difficulties; supplier failure; shortage; or telecommunication or other internet provider failure (each, a “Force Majeure Event”).