TERMS OF SERVICE FOR iGOLF DNA
(Effective August 5, 2016)
Please read these Terms of Service (the “Agreement” or “Terms of Service”) carefully before using the services offered by the iGolf division of L1 Technologies, Inc. (“iGolf”). This Agreement sets forth the legally binding terms and conditions for your use of the Services. By accepting this Agreement, either by clicking a box indicating your acceptance or by using the Services provided in connection with iGolf DNA, you (a) are indicating that you have read the Terms of Service, understand them, and agree to be legally bound to them on behalf of the company or other legal entity for which you are acting (for example, as an employee), and (b) you represent and warrant that you have the right, power and authority to act on behalf of and to bind your company.
If you do not agree to all of these terms or you do not have the right, power and authority to legally bind your company, you must not accept this Agreement and may not use the Services. However, any unauthorized use of the services still constitutes an agreement and consent to these Terms of Service.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition means direct or indirect ownership or control of more than 50% of the voting interests of the subject company.
“Addendum” means a document agreed to and signed by the parties, after the effective date of these Terms of Service, which identifies the parties’ rights and obligations with regard to certain Services.
“Asset Tracking Device Information” means the information and data collected by the Asset Tracking Devices including but not limited to location information, diagnostic information and other information as agreed to by the Parties.
“Billing Statement” means a document You access from Your account identifying certain Services to be provided to You and the fees You agree to pay for those Services.
“Data” means information stored in iGolf DNA relating to You, Your customers or Your use of the Services excluding Asset Tracking Device Information.
“Services” means the products and services You order or purchase under this Agreement or an Order Form and made available to You.
“We”, “Us”, or “Our” means L1 Technologies, Inc. including the iGolf division “You” or “Your” means the company or other legal entity for which you are accepting this Agreement and any Affiliates of that company.
2. USE OF SERVICES.
2.1 Generally. Subject to these Terms of Service, iGolf will provide the Services and You may access and use the Services, and You may permit the Services to be accessed and used by Your Users, provided that all such access and use is solely for Your internal business purposes. You understand that certain Services are provided at no cost to You and certain Services require You to pay fees. You are responsible for Your User’s compliance with these Terms of Service and any of Your own rules for accessing the Services and incurring any applicable fees.
2.2 Access to the Services. You and Your Users will need Internet access and may need to create or log into an account to use the Services. You agree that You and Your Users (a) will not share any user ID or passwords with any third party, (b) allow anyone else to access Your account, and (c) will not do anything that may jeopardize the security of Your account. You will be solely responsible for obtaining and paying all costs associated with Internet access and any other resources (for example, internet service providers, computer hardware, and software) required for You to access the Services and iGolf will not be responsible for the support, reliability, security or performance of these resources.
2.3 Service Level Agreements. iGolf will use commercially reasonable efforts to (i) make the Services generally available 24 hours a day, 7 days a week except in either case of (a) planned downtime (of which iGolf shall endeavor to give at least 24 hours’ notice) or (b) unavailability due to Service Interruptions (as set forth below); and (ii) provide support to You upon request. Notwithstanding the foregoing, iGolf does not make any representations or guarantees regarding availability of the Services except as expressly stated in this Section.
2.4 Service Interruptions. The Services may be unavailable at certain times, including during any unanticipated or unscheduled downtime or unavailability as a result of system failures of any kind, whether or not beyond iGolf’s control, including, but not limited to, Internet service provider failures or delays, cloud-based web services and database provider failures, attacks caused by third-parties such as the malicious introduction of viruses or disabling devices, or circumstances beyond our control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (“Service Interruptions”). iGolf will use commercially reasonable efforts, circumstances permitting, to provide information regarding any Service Interruption and the restoration of use and access to Services following the Service Interruption.
2.5 Protection of Data. iGolf will maintain commercially reasonable technical and procedural safeguards for the security, confidentiality and integrity of the Data. Those safeguards will include, but may not be limited to, measures for preventing access, use, modification or disclosure of Data by our personnel except to (a) to provide the Services and address technical problems, (b) as compelled by law, or (c) as You expressly permit in writing.
2.6 Availability of Data. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, or an applicable Service, iGolf will make Data from the previous twelve months available to You for export or download for a fee of $5,000. After that 30-day period, iGolf will have no obligation to maintain or provide Data and may delete or destroy all copies of Data unless legally prohibited.
2.7 Deletion of Data. In addition to iGolf’s right to delete Data upon expiration or termination of this Agreement, iGolf has the right to delete inactive accounts and all Data related to such inactive accounts without further notice and without liability for the deletion and failure to store such Data.
2.8 Usage Restrictions. You will not (a) sell, resell, lease, license, sublicense or distribute the Services, (b) allow anyone other than You or Your Users to utilize the Services or include the Services in any service bureau or outsourcing offering, (c) attempt to reverse engineer the Services or attempt to create a similar or competitive service through use of, or access to, the Services; or (d) use the Services for any unauthorized or illegal use.
3. FEES AND PAYMENT.
3.1. Fees. You will pay all fees specified in Billing Statement. Except as otherwise specified on an Order Form: (a) fees are based on Services purchased and not actual usage, and (b) payment obligations are non-refundable and non-cancelable
3.2. Invoicing and Payment. You will provide iGolf with valid and updated credit card information or alternative method of payment acceptable to us. You authorize iGolf to charge such credit card on or after the 5th day of each month for all fee based Services provided in the preceding month. If You and iGolf agree on a method of payment other than credit card, iGolf will invoice You and all fees will be due within 5 days of the invoice date. You are responsible for providing complete and accurate billing and contact information to iGolf and notifying us of any changes to such information.
3.3 Late Fees. If any invoiced amount is not received by iGolf by the due date, in addition to any other remedies available to us, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, and/or (b) we may condition future fee-based Services on advanced payments.
3.4 Suspension of Services. If any amount owing by You under this Agreement or any other agreement for our Services is 30 days or more overdue, iGolf may, in addition to any other remedies available to us, suspend all Services provided to You until such fees are paid in full. We will give You at least 5 days’ prior notice of the unpaid and overdue fees before suspending Services to You.
3.5 Taxes. Our fees do not include any taxes such as value-added, sales, use or withholding taxes assessable by any jurisdiction. You are responsible for paying all taxes associated with Your purchases under this Agreement or an Order Form. If we have the legal obligation to pay or collect taxes for which You are responsible under this Agreement, we will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate.
4. LICENSES AND PROPRIETARY RIGHTS.
4.1 Reservation of Proprietary Rights. You acknowledge and agree that iGolf owns all right, title and interest, including intellectual property rights, in and to the Services and Documentation. You have only the limited rights to use the Services and Documentation as are expressly granted to You under these Terms of Service and no other rights are granted or conveyed to You.
4.2 Ownership of Asset Tracking Device Information. Except as may be prohibited by law, the Asset Tracking Device Information is owned by iGolf and shall be considered Confidential Information of iGolf. iGolf hereby grants You a nonexclusive, nontransferable, and nonsubicensable right and license during the term to access and use the Asset Tracking Device Information in connection with the Services.
4.3 Ownership of Data. You own the Data relating to Services provided to You.
4.4 License to Use Data. You grant iGolf a worldwide, perpetual, irrevocable, royalty-free license to host, copy, transmit, display and use Data owned by You as necessary for iGolf to provide the Services in accordance with this Agreement.
4.5 License to Use Your Suggestions and Feedback. You grant to iGolf a royalty-free, perpetual, irrevocable, worldwide license to use, copy, modify or distribute, including by incorporating into the Services, any suggestions, enhancement requests, recommendations, information or other feedback, and derivatives thereof, provided by You or Your Users.
5. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS.
5.1. Performance Warranty. iGolf warrants that during the Term of this Agreement the Services will work in accordance with Section 2.3 Service Level Agreement. In the event of a breach of this Performance Warranty, upon receipt of written notice from You, iGolf will, at our election: (a) repair the Services so they perform as warranted; or (b) if we determine that it is not commercially feasible to repair the Services within a reasonable period of time, suspend the Services or terminate this Agreement. iGolf does not warrant that the Services will be error free or that all errors can be remedied. The foregoing shall be Your sole and exclusive remedy under this Performance Warranty.
5.2 Representations. Each Party represents that it has the full power and authority to enter into and carry out its obligations under this Agreement.
5.3. Disclaimers. TO THE FULLEST EXTEND PERMITTED BY LAW, EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND AS AVAILABLE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, IGOLF MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, COURSE OF DEALING, USAGE OF TRADE, AND NONINFRINGMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE WITH RESPECT TO THE SERVICES. IGOLF DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE, SECURE, ACCURATE, RELIABLE, OR COMPLETE.
6. LIMITATION ON LIABILITY.
6.1 Limitation on Indirect Liability. IN NO EVENT WILL IGOLF BE LIABILE UNDER THIS AGREEMENT FOR ANY LOST REVENUES OR PROFITS, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF iGOLF KNEW OR SHOULD HAVE KNWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
6.2 Limitation on Amount of Liability. THE LIABILITY OF IGOLF FOR ANY CLAIM RELATED TO THE SERVICES SHALL NOT EXCEED THE AMOUNT OF THE MONTHLY FEE PAID BY CUSTOMER IN THE 6 MONTHS PRECEEDING THE CLAIM GIVING RISE TO THE LIABILITY. IF YOU ARE NOT PAYING ANY FEES FOR SERVICES TO IGOLF, IGOLF’S LIABILITY FOR ANY CLAIM SHALL BE $0.
7. MUTUAL INDEMNIFICATION.
7.1 Indemnification by iGolf. Subject to the limitation on the amount of liability in Section 6.2 above, iGolf will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights, and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of such claim, provided You (a) promptly give iGolf written notice of the claim, (b) give iGolf sole control of the defense and settlement of the claim, and (c) give iGolf all reasonable assistance requesting in defending the claim. If iGolf receives information about an infringement or misappropriation claim related to the Services, we may in our discretion and at no cost to You (a) modify the Services so that it no longer infringes or misappropriates, (b) obtain a license for Your continued use of the Services in accordance with this Agreement, or (c) terminate Your access to the Services upon 30 days’ written notice. The termination of this Agreement or the Services shall not be considered a breach of iGolf’s Performance Warranty pursuant to Section 5.1. iGolf is not required to defend or indemnify You against any claim, demand, suit or proceeding arising from any Data, Your breach of this Agreement, or any infringement claim arising out of Your use of Services in a modified form or in combination with hardware, software, firmware, technology, other services, or other materials not provided by Us.
7.2 Indemnification by You. You will defend iGolf against any claim, demand, suit or proceeding made or brought against iGolf by a third party alleging that any Data, or Your use of any Service in breach of this Agreement infringes or misappropriates such third party’s intellectual property rights or violates applicable law, and will indemnify iGolf from any damages, attorney fees and costs finally awarded against iGolf as a result of, or for any amounts paid by iGolf under a court-approved settlement of, such a claim provided iGolf (a) promptly give You written notice of the claim, (b) give You sole control of the defense and settlement of the claim, and (c) give You all reasonable assistance requested in defending the claim.
7.3 Exclusive Remedy. This Section 7 states the indemnifying part’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 7.
8. TERM AND TERMINATION.
8.1 Term of the Agreement. This Agreement commences on the date You first accept it and continues until all Services hereunder have expired or have been terminated.
8.2 Term of Services. The term of each Service shall be as specified in the applicable Order Form or addendum to this Agreement. Except as otherwise specified in an Order Form or addendum to this Agreement, Services will automatically renew for additional periods equal to the expiring Service term or one year (whichever is shorter), unless either Party gives the other notice of non-renewal at least 30 days before the end of the relevant term.
8.3 Termination for Cause. A party may terminate this Agreement for cause (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the end of the 30 day period, or (b) effective immediately and without notice if the other party ceases to do business or becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, or comparable proceeding.
8.4 Effect of Expiration or Termination. iGolf will stop providing Services to You upon expiration or termination of this Agreement, an Order Form or addendum to this Agreement. If this Agreement is terminated by iGolf in accordance with Section 8.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to us for the period prior to termination.
8.5 Surviving Provisions. The Sections (3). Fees and Payment, (4). Licenses and Proprietary Rights, (9). Confidentiality and (10). General Provisions and any other provisions of this Agreement that by their terms or nature will or may entail obligations to be performed after termination or expiration shall survive such termination or expiration until they are performed.
9.1 Confidential Information. “Confidential Information” means all information disclosed by one party to the other party, whether orally or in writing, that is designated confidential or that given its nature reasonably should be understood to be confidential and includes, but is not limited to, Data, the Services, the terms and conditions of this Agreement including any Order Form or addenda, pricing, business and marketing plans, technology and technical information, product plans and business processes disclosed by either party. Confidential Information shall not include information that (1) is generally known to the public or readily ascertainable from public sources (other than as a result of a breach of this Agreement by any of the parties or any of their employees), (2) is independently developed without reference to or reliance on any Confidential Information, or (3) is obtained from an independent third party who created or acquired such information without reference to or reliance on Confidential Information, or who is authorized to disclose same.
9.2 Confidentiality Obligations. Each party agrees that it will not: (i) use the Confidential Information of the other party except solely as necessary to perform its obligations under this Agreement; or (ii) disclose Confidential Information of the other party, except only to its employees whose duties in connection with this Agreement reasonably require familiarity with such information and who have signed confidentiality agreements containing protections no less stringent that those herein. Each party shall be responsible for any breach of this section by its employees. Each party shall protect the Confidential Information of the other party from disclosure or misappropriation using the same degree of care applied to such other party’s own Confidential Information (but in no event less than a reasonable degree of care).
9.3 Authorized Disclosure of Confidential Information. Each party shall be entitled to disclose the other party's Confidential Information to the extent such disclosure is requested by the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the party required to make the disclosure shall give prompt, advance notice of the disclosure to enable the other party to seek a protective order or otherwise prevent such disclosure. Each party may disclose the terms of this Agreement to legal counsel, accountants, banks and financing sources but is responsible for such legal counsel’s, accountants’, banks’ and financing sources’ compliance with this Section 9.
10. GENERAL PROVISIONS.
10.1 Notices. All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given upon: (a) personal delivery, (b) the third business day after mailing, or (c) the first business day after sending by email (however, email shall not be sufficient for notices of breach, termination or indemnity) or delivery service (such as FedEx or UPS) with a delivery receipt. Notices from You to iGolf, if by email shall be sent to email@example.com, and if by personal delivery, mail, or delivery service shall be sent to iGolf, attention Legal Dept., at 8885 Rio San Diego Drive, Suite 340, San Diego, CA 92127. If by iGolf to You, notices will be sent to the email address and/or business address provided to iGolf when You signed up for DNA. Any changes to Your email and business addresses shall be provided to iGolf in writing.
10.2 Assignment. Neither Party may assign or transfer any rights or obligations under this agreement without the written consent of the other Party. Notwithstanding, either Party may assign this Agreement: (a) to an Affiliate or in the event of a merger, acquisition, or sale of all or substantially all of the assets of either Party or a business unit thereof, but only if the assigning party remains liable for obligations incurred under the Agreement prior to assignment.
10.3 Entire Agreement and Amendments or Modifications. This Agreement constitutes the entire agreement between You and Us regarding Your use of the services and supersedes all other agreements and understandings, both written and oral, between us. No modification or amendment to this Agreement will be effective unless it is agreed to in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. You agree that any term or condition stated in Your purchase order or other purchasing document is void.
10.4 Relationship of the Parties and Third-Party Beneficiaries. The parties are independent contractors, and this Agreement does not create a partnership, agency, joint venture or employer-employee relationship between us. This Agreement is not intended to and shall not confer upon any other person or entity, other than the parties, any rights or remedies with respect to the subject matter hereof.
10.5 Severability. If any one or more of the provisions of this Agreement is found to be unenforceable by a court of competent jurisdiction for any reason, the balance of this Agreement shall remain valid and in effect.
10.6 Waiver. The failure to enforce any provision of this Agreement by either party will not constitute a waiver or relinquishment of that right.
10.7 Jurisdiction, Venue and Applicable Law. This Agreement shall be interpreted and governed in accordance with the laws of the State of California. The Parties agree that any action arising under or relating to this Agreement shall be filed in either state or federal court in San Diego County, California and that personal jurisdiction and venue shall be and is proper in such state or federal court. In any legal action arising out of or relating to this Agreement, the prevailing party shall be entitled to receive from the non-prevailing party its reasonable attorneys’ fees and costs.
11. ADDENDUM FOR YAMAHA CUSTOMERS.
This Addendum applies only to customers of Yamaha Golf Car Company, and amends and supplements the Terms of Service by and between You and iGolf. Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Terms of Service. You hereby grant Yamaha Golf Car Company and its Affiliates (collectively “Yamaha”) access to Your Data and use thereof, and you further agree that Yamaha shall be included with iGolf as a licensee under Section 4.4 of the Terms of Service. You further authorize Yamaha to receive any Billing Statement and pay Your fees for the Cart Tracker Module and any other modules as agreed to between you and Yamaha in order to fulfill Your obligations under Section 3 of the Terms of Service. All other fees incurred by You when using the Services are Your responsibility. Notwithstanding the forgoing, Yamaha shall not be entitled access to and will not receive any cardholder data related to You or Your Users. You further acknowledge and agree that Yamaha shall be entitled to the same rights and benefits as iGolf in Sections 5.3, 6.1, 6.2 and 7.2 of the Terms of Service as a third-party beneficiary thereof, and may directly enforce these as if it were a party hereto in order to provide Yamaha with the same rights and benefits as iGolf with respect to Disclaimers, Limitation of Liability, and Indemnification. By accepting this Addendum, either by clicking the box indicating that You have read this Addendum or by using the Services provided in connection with iGolf DNA, You understand, acknowledge and agree to the provisions provided herein, which shall be incorporated into the Terms of Service. All other provisions of the Terms of Service shall remain in full force and effect.