aG tERMS AND CONDITONS
Date of Last Revision: July 9, 2020
AG FACILITY PURCHASE AGREEMENT
This Facility Purchase Agreement (“Agreement") is entered into by and between aG® Global Inc., a Delaware Corporation, with an address of at 5105 Carillon Pt., Kirkland, WA 98033-7308 ("aG") _________________, an _________________ company, with an address at _________________ ("Customer") (collectively “the Parties”). This Agreement is effective as of the date fully executed.
Whereas, aG is the owner, developer and/or licensee, and manufacturer of proprietary indoor golf simulators, launch monitors and related software and components; and
Whereas, Customer desires to purchase Facility from aG under certain terms and conditions as described in this Agreement,
NOW, THEREFORE, for consideration paid and received, and in consideration of the mutual agreements and promises set forth herein, the Parties agree as follows:
The undersigned do hereby covenant, contract and agree as follows:
1. PURCHASE OF FACILITY
(a) Facility components and software purchased by the Customer are detailed on the Customer Order Form available at the aG Customer Portal at: https://books.zoho.com/portal/aboutgolfglobalinc.
(b) Pursuant to Customer’s acceptance of the Order Form, aG hereby sells, conveys and transfers to Customer all rights, title and interest in and to an aG golf simulator and associated software and components (the “Facility”), as described in the Order Form after payment in full of the Purchase Price stated in the Order Form.
(c) Customer may only resell the Facility back to aG, on mutually acceptable terms to be negotiated in good faith between the Parties.
(d) Payment. Customer agrees to pay to aG the purchase price for the Facility and the Software Subscription selected by Customer as stated in the Order Form, upon acceptance of the Facility, as provided in Section 3, below. The purchase price shall be paid in full, or in a first payment of 50% upon acceptance, followed by payment of the remaining 50% balance. Payments shall be made in U.S. dollars and in cash or other immediately available funds payable to aG. The foregoing purchase price includes installation; provided, however, that in the event that Customer schedules delivery of the Facility and the installation site is not complete or otherwise properly prepared for such installation, Customer shall pay aG for additional time and materials costs incurred by aG to schedule any subsequent installation, within ten (10) days after receipt of an invoice for such time and materials. Payments shall not be considered paid until received by aG.
2. PURCHASE MONEY SECURITY INTEREST
Customer grants aG a first priority security interest in the Facility and all related products and proceeds, including insurance proceeds. This provision shall constitute a security agreement under the Uniform Commercial Code of the State of Washington (the “Code”), and aG shall be entitled to all rights and protections of a secured party under the Code. Customer authorizes aG to file such UCC-1 Financing Statements as may be necessary or appropriate to perfect aG’s security interest in the Facility. aG agrees to terminate any such UCC-1 filings at the point in time Customer has paid the purchase of Facility in full and obtains ownership of the Facility.
3. INSTALLATION AND ACCEPTANCE
(a) Preparation for Delivery. Appropriate permitted housing for the Facility must be provided at the time of installation. Customer agrees to review and to comply with the Customer Pre-Installation Construction Requirements attached hereto as Schedule 1, and the Customer Pre-Installation Site Preparation Requirements attached hereto as Schedule 2. Once all requirements are fulfilled, unless otherwise agreed by aG, Customer shall contact aG to arrange for delivery and installation.
(b) Installation. Installation of Facility by aG shall commence as soon as practical after delivery, provided all requirements of Schedule 1 and 2 are met.
(c) Acceptance. Customer must inspect and report any damage or accept Facility in writing to AG, within 24 hours following calibration of the Facility. Customer affirms that they will acknowledge acceptance of the Facility by signing and returning the signature page for Schedule 3. Prior to acceptance, should Customer report any defects or damage to aG, aG shall have ten (10) business days to remedy such defect or damage, unless Customer consents to additional time. If aG is unable to repair any reported defects or damage in the 10 business day time period, AG shall replace the Facility. Customer shall be deemed to have unconditionally accepted the Facility after calibration of the Facility, unless Customer gives aG written notice of any defect or damage to the Facility as set forth in this Section 3. The foregoing process shall repeat until such time as Customer has accepted the Facility in writing following calibration or has been deemed to have done so.
4. CUSTOMER OBLIGATIONS
(a) Customer agrees to review and be bound by all terms of service and terms and conditions of using the aG Facility and aG software.
(b) Customer agrees to retain all aG’s intellectual property markings, including trademarks, issued patents or “patent pending,” and all copyrights on displays of aG-owned software and all promotional material. aG reserves the right, upon reasonable notice and at its sole cost and expense, to specify different and/or additional markings to be placed on Facility, which aG shall provide. Facility shall not be labeled with any other markings.
(c) Customer agrees that the Facility and all of its respective component parts and software constitute a single product which may not be dismantled, nor any part or software resold to a third party. Customer may not disassemble, decompile or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how or other information from the binary code portions of the aG software or firmware, or reverse engineer the Facility, in any manner whatsoever without aG’s prior written consent and shall not permit or induce the foregoing. Violation of this provision shall constitute a material breach of this Agreement.
Except as expressly permitted herein, Customer shall refrain from using or disclosing to any third party and shall cause its employees and agents to refrain from using or disclosing to any third party any confidential or proprietary information of aG without consent and proper protections, including a non-disclosure, non-compete, non-workaround agreement as appropriate. For purposes of this Agreement, aG’s intellectual property and all other information (including without limitation, reports, documents, notes, drawings and oral communications) disclosed or obtained by Customer, or any agent or employee of Customer in connection with its performance of this Agreement shall be deemed confidential or proprietary information of aG, except: (i) information which has passed into or may hereafter pass into the public domain, other than by reason of acts or omissions of Customer or its employees or agents, (ii) information obtained by Customer from a third party entitled to disclose such information, and (iii) information developed by Customer independently of aG, as evidenced by written documentation.
6. SOFTWARE SUBSCRIPTION
Upon purchase of the Facility, Customer agrees to subscribe to an annual aG Software Subscription agreement providing access to aG support, the aG internet website, mobile applications, golf courses, games, and ranges at the level selected by Customer and memorialized in the Order Form. Customer must sign the aG Links™ Software Subscription Agreement and License (the “Software Subscription Agreement”) provided with the Order Form. If the Software Subscription Agreement is terminated, access to the content provided for members shall be removed, as set forth in the Software Subscription Agreement termination provisions.
7. LIMITED WARRANTY
Except for the Limited Warranty attached hereto as Schedule 4, aG makes no warranty with respect to the Facility, whether express or implied, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose.
8. TECHNICAL SUPPORT
aG technical support shall be provided to Customer in accordance with Schedule 5, attached hereto. Technical support may be enhanced depending on the Software Subscription level purchased by Customer.
This Agreement is from the Effective Date for ten (10) years unless terminated as set forth herein.
10. INTELLECTUAL PROPERTY
(a) Customer acknowledges that aG and/or its licensors, own and will retain all right, title and interest in and to any and all worldwide intellectual property and proprietary rights embodied in the Facility, including its associated software, including, but not limited to, all trademarks, copyrights, patents and trade secrets, know-how, and any photographs, animations, images, video, audio, music, text and applets, electronic documentation, printed documentation and media documentation associated therewith.
(b) aG trademarks include, but are not limited to aG®, 3Trak®, aG Performance™ , aG Balance, aG Perform Pro, ®SimSurround®, agCurve®, and aG Links.™
(c) Microsoft and the Microsoft Internet Explorer logos are registered trademark or trademarks of Microsoft Corporation.
(d) Pebble Beach, Pebble Beach Golf Links and Spyglass Hill Golf Course, and their respective underlying distinctive images, courses and individual hole designs are trademarks, service marks and trade dress of Pebble Beach Company and cannot be used other than for individual play of the game, except with prior written permission of Pebble Beach Company.
(e) St Andrews Links is a copyright of St Andrews Links Limited, used under license.
(f) Harbour Town is licensed from Sea Pines Company, Inc.
(g) Pine Needles is licensed from Pine Needles Lodge and Golf Club.
(h) Bethpage Black® is a registered trademark of the NYS Office of Parks, Rec., and Historic Preservation, a New York State agency.
(i) The Facility, including its associated software, is protected by international treaty provisions and copyright laws -- All Rights Reserved.
(j) Customer further acknowledges that it will have no rights with respect to any of the foregoing, other than the rights expressly set forth in this Agreement.
(k) Customer agrees that aG owns any and all improvements to Facility including the associated software and including any improvements that Customer should make. Customer agrees to assign all right, title and interest to such improvements and to cooperate in the filing of any patent protection for such improvements. Customer shall have a royalty free, non-exclusive license to use such improvements in connection
with the Facility
11. RIGHT TO ENTER AGREEMENT
Customer warrants and represent that it has the right to enter into this Agreement, that it will not knowingly take any action contrary to this Agreement, and that the entering into of this Agreement will not knowingly violate any other agreement to which it is a party or conflict with or violate any law, rule or regulation by which it is bound.
12. MAINTENANCE AND REPAIR OF FACILITY
(a) Maintenance and repair costs related to the Facility, except maintenance and costs covered under the Limited Warranty attached hereto as Schedule 4 shall be the responsibility of Customer. At Customer’s request, aG shall provide maintenance and repairs by its designated personnel or subcontractors, at Customer’s costs.
(b) In order to provide adequate service and maintain the license keys for Facility software, Customer acknowledges that the Facility must be allowed to connect to the internet and that this connection should be maintained at all times that the Facility is installed.
(a) aG does not assume any liability to third persons with respect to any acts or omissions of Customer or its customers in the performance of this Agreement, or the operation or use of the Facility once accepted by Customer.
(b) Customer agrees to indemnify and hold aG, its directors, officers, members, employees, and agents from and against all demands, claims, losses, damages, judgments, expenses and costs (including attorney fees) arising out of or relating to any and all personal injury or property losses arising out of or related to the performance of this agreement and the operation and use of the Facility, once accepted by Customer; provided, however, that reasonable notice, authority and information to defend is given.
(c) aG agrees to indemnify and hold Customer harmless against any losses, costs, expenses (including, but not limited to, reasonable attorneys’ fees), claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, “Losses”) resulting from any claim, suit, action, or proceeding brought by any third party against Customer related to or arising out of any actual or alleged infringement or misappropriation of any United States copyright, trade secret, patent, trademark, or other proprietary right related to any hardware, software, or materials provided by aG with Facility.
(d) To receive the foregoing indemnities, the party seeking indemnification must notify the indemnifying party in writing of a claim or suit promptly and provide reasonable cooperation (at the indemnifying party’s expense) and full authority to defend or settle the claim or suit. Neither party will have any obligation to indemnify the other under any settlement made without its written consent.
14. DAMAGE TO FACILITY, DESTROYED OR STOLEN FACILITY
After acceptance, Customer accepts the risk and responsibility for any loss, theft, destruction or damage of or to any item of the Facility.
Customer shall pay all taxes associated with Customer's purchase of the Facility, including, without limitation, any and all sales taxes, transfer taxes, personal property taxes, use taxes, and other state, local, and federal taxes. Customer shall not be liable for any income taxes or other taxes associated with the sale of the Facility for which aG would normally be obligated.
(a) Customer shall be in default of this Agreement if Customer:
(i) fails to make any facility payment due under this Agreement
(ii) fails to make any other payment set forth in this Agreement within ten (10) business days after the due date.
(b) In the event of such default by Customer:
(i) Customer shall pay aG interest on any past due amount from the due date thereof until fully paid at a per annum rate equal to the lesser of 12% or the maximum rate permitted by applicable law and any costs aG incurs to collect any amount owing hereunder, which is not paid when due and to enforce any of its other rights under this Agreement, or afforded aG by law, including, without limitation, reasonable attorney’s fees and disbursements; and
(ii) At aG’s option and upon notice to Customer, Customer shall surrender all aG property, including the Facility and all aG software, documents, written or electronic to aG. In such event, aG may take possession of the Facility and all aG software and documents which shall be provided by Customer to aG upon demand, and may hold, sell or otherwise dispose of the Facility without affecting Customer's obligations as provided in this Agreement. aG shall arrange for shipment of all aG property at Customer’s expense.
(c) aG may exercise any and all other rights as provided by law or in equity.
(d) aG shall be in default of this Agreement if aG breaches this Agreement and fails to cure such breach within ten (10) business days of receiving notice from Customer. In the event of such default by aG and failure to cure, then Customer may terminate this Agreement and receive a prorated refund through the date of termination for any fees that were prepaid, as well as exercise any and all other rights as provided by law or in equity.
(e) Software Subscriptions are required for new Customers. Payment is required for the initial term of the Software Subscription. If the Customer does not pay the initial term of the Software Subscription, aG reserves the right to withhold installation until payment is made.
This Agreement may not be modified or amended except in writing signed by both Customer and aG.
Customer may not assign this Agreement without aG’s expressed written consent unless such assignment is in connection with a sale of all or substantially all of Customer’s assets or a change of control of Customer, in which case aG’s consent shall not be required. aG may freely assign its rights and obligations in this Agreement and subcontract any portion of its performance.
A failure or delay by either party to exercise any right under this Agreement shall not operate as a waiver of that right. Any single or partial exercise of a party’s rights under this Agreement shall not preclude a party’s further exercise of its rights. The rights and remedies in this Agreement are cumulative and not exclusive of others provided by law or equity.
20. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the State of Washington, King County, without giving effect to conflict of laws principles.
21. ENTIRE AGREEMENT
This Agreement contains the entire agreement of the parties with respect to the Facility and software provided herein, and it supersedes any other Agreement or understanding, whether written or oral, with respect to the Facility and software.
All notices required or permitted to be given under this Agreement will be in writing and will be deemed to have been duly given: (a) if mailed by certified mail, return receipt requested, on the date the return receipt card is signed; (b) if sent by facsimile, on the date received, so long as the sending party retains a receipt or proof of transmission thereof; or (c) if delivered by overnight courier, on the date after sending so long as the sending party retains a receipt thereof. Any such notices will be sent to the parties at their respective addresses first stated above, or to such other address as either party hereto, by written notice to the other, may designate from time to time.
23. SECTION HEADINGS
Section headings are for convenience purposes only and will not in any way affect the meaning or interpretation of any provision of this Agreement.
This Agreement may be executed in counterparts and by facsimile signature or other form of electronic transmission, each of which shall
constitute an original, and all of which, taken together, shall constitute one and the same instrument.
SCHEDULE 1: CUSTOMER SITE CONSTRUCTION REQUIREMENTS PRE-DELIVERY AND INSTALLATION OF FACILITY
THE CUSTOMER OR CUSTOMER’S CONTRACTOR SHALL:
Perform as the customer's point person to aG
Handle any on site construction activity
Provide “as built” site measurements, site pictures and prints as needed
Be on call during design process and during installation
Receive shipment of simulator if aG is not delivering
Build the screen frame (most hard wall installations)
Build the top skin frame / ledger boards (most hard wall installations)
Install wall and sometimes ceiling plywood and protective carpet as needed
Install junction boxes and conduit runs with pull strings per aG plans
Install outlets and wiring per aG plans
Install recessed can lights over tee area per aG plans
Install speaker systems if desired
Install access panels around the simulator as needed
Install wooden backing behind wall sheathing anywhere aG Facility is to be surface mounted onto the customer walls or ceiling
Handle floor cut outs for recessed stance mat system
Install additional room lighting per customer request
Handle room finish work, carpentry and paint
Have the site clear, clean and ready for installation PRIOR to aG arrival
Site must be accessible for aG installers to get Facility into building and simulator room
If construction work is being done in other area, the simulator room should be sealed off
ALL CONSTRUCTION ACTIVITY IN THE SIMULATOR ROOM MUST BE DONE PRIOR TO THE INSTALLATION: Drywall, wall sheathing and carpet, paint, ledger boards, screen frame, customer flooring, mill work, finish electrical work and conduits, A/V work, drop down media screen installed.
SCHEDULE 2: CUSTOMER PRE-INSTALLATION SITE PREPARATION REQUIREMENTS
The following is a pre-installation checklist to ensure a smooth installation process. Please read the following items carefully and check off each item confirming your understanding and/or completion of the requirements. It is essential that you sign this sheet, acknowledge your responsibilities, and fax it back to aG at 419-482-9096 two weeks prior to your scheduled installation date. Any delay may result in the re-scheduling of your installation date.
Four (4) weeks prior to install date, final dimensions and pictures are required. aG will provide guidance with regards to what dimensions are needed and what pictures should be taken.
Two (2) weeks prior to Install date, all construction activity in the simulator room must be complete, including: Drywall, wall sheathing and carpet, paint, ledger boards, screen frame, customer flooring, mill work, finish electrical work and conduits, A/V work, drop down media screen installed. Pictures of the space are required by the aG design team to ensure the room is built to correct specifications.
Light is detrimental to the simulator’s picture quality. The darker the area, the better picture quality will be. When choosing a location for your simulator, face it away from outside light sources and large ceiling lights. You may have to install curtains and/or tint windows to cut down on the amount of ambient light flowing into the simulator booth. It is your responsibility to ensure that the room is dark enough to see the graphics. The installer can often offer you helpful hints on decreasing light problems, but he is not responsible for making any necessary alterations.
A standard CAT 5 Ethernet (high-speed) or wireless Internet connection is required for the simulator computer. This connection is necessary to receive technical support and software updates for your simulator, as well as participate in online capabilities. The computer is configured to accept a standard DHCP connection.
The aG Classic simulator requires a 120v, 20 amp, 60 Hz, dedicated power outlet with ground (See prints for ideal placement). Our SimSurround requires 2-15 amp or 2-20 amp dedicated circuits. The simulator is designed to operate in a range of 105 to 125 volts of consistent power. You will need a power conditioner in areas with higher voltage or where a dependable power source is not available.
The simulator will be delivered up to one week prior to the installation. The freight company and/or aG will call with an estimated delivery time. The customer is responsible for ensuring someone is available to receive the freight and that there is a clear path to the area where the simulator is to be installed.
For installs that are not delivered by aG staff, the customer is responsible for providing 2 sturdy 6 ft. Ladders (225lb. Rating). aG will notify the customer as to the shipping method being used.
Please be aware that if the above conditions are not met or are incorrect and the installer is delayed while you prepare the room to specification, you will be charged for the installer’s time, hotel, rental car, airline change fees, and per diem for the time lost.
If you have any questions regarding the aforementioned, do not hesitate to contact your sales agent. We will do our very best to provide you with whatever information you may need to make your installation run smoothly.
SCHEDULE 3: AG CUSTOMER ACCEPTANCE FORM
The Customer will review the simulator room and system functionality with an approved aG installer. The checklist has been completed in full during the inspection.
Ceiling Installation/Baffles/Top skin
Stance mats / hitting strip
Additional aG Flooring
Computer cabinet complete
General aG Lighting (Tee)
Keyboard / mouse
USB drives (if applicable)
aG Flix Cameras #___ (if applicable)
aG Flix lighting (if applicable)
aG Balance Plates (if applicable)
Additional aG Hardware
aG Golf Balls ___ dozen
aG Tee systems #____
aG Calibration board / 3 ball jig
aG Flix Cameras #___ (if applicable)
aG Flix lighting (if applicable)
aG Balance Plates (if applicable)
Additional aG Hardware
SOFTWARE AND PERFORMANCE
aG Software Active
Temporary License Active
aG Golf Game Active
Golf game functionality
Trajectory Conf. (95+)
Spin Conf. (85+)
Club Data (99+)
SCHEDULE 4: LIMITED WARRANTY
Proper Use of Facility: Customer's failure to use the Facility properly may affect the safety and efficacy of the Facility and will void the warranty. Customer must use the Facility: (a) in compliance with all applicable federal, state, and local laws, ordinances, executive orders, rules and regulations, including without limitation state licensing requirements; (b) consistent with statements, technical information, instructions, warnings, and recommendations of aG; and (c) solely in those applications for which the Facility was designed and intended. Customer must ensure that the Facility is properly stored, maintained, and protected. Customer may not modify the Facility in any manner including, without limitation, removing or modifying the hardware or software embedded in or supplied with the Facility. Customer may not use other software with the Facility.
Exact OEM warranties on third party electronics (PC, Projector, and Touchscreen) will apply as outlined in the Manufacturer’s warranty. This Warranty shall be void if Facility components are tampered with in any way or not covered and protected by a means previously approved by aG, or damaged in transport after installation.
3Trak Launch Engine: Launch Engine warranty shall cover all initial defects and defects arising out of normal use for one year after purchase.
Screens: The Screen warranty shall cover all initial defects and defects arising out of normal use, with replacement for defects within 60 days from purchase.
Turf: Six months replacement. The Turf warranty shall cover all initial defects and defects arising out of normal use, with replacement for defects within six months from purchase.
Simulator Enclosures (frame and skin): The Facility enclosure warranty shall cover all initial defects and defects arising out of normal use, with replacement for defects within six months from installation.
Software: aG shall use commercially reasonable efforts to timely repair material software bugs reported in writing by Customer within the first year after delivery of the Facility.
Returns of Warranty Goods: In the event of a warranty claim, Customer shall be responsible for the return of the Facility at Customer’s cost, including suitable transit insurance, unless aG is able to perform the repair on Customer’s site. aG shall be responsible for arranging for timely repair or replacement of the Facility, and delivery, or as required, installation, at aG's cost. aG shall use reasonable efforts to ensure that the most cost effective and timely solutions are made for all warranty claims.
aG shall use commercially reasonable efforts to timely fulfill all warranty requirements.
LEGACY HARDWARE NO LONGER SUPPORTED
SCHEDULE 5: SUPPORT FOR FACILITY & NON-HOSTED SOFTWARE
1. Customer Success. aG is committed to providing a dedicated support team to handle support to the Customer. This team is available to be contacted support via phone, email, and online resources and is to assist the Customer in maintaining the software that is incorporated into the Facility Simulator and Subscription Software at high standard level of quality. aG will use commercially reasonable efforts to identify, reproduce, and verify problems with the Facility Software, and to provide Customer with workarounds, replacement components and other available solutions.
(a) Email: Email support is available via firstname.lastname@example.org 24/7 365 days. A representative will review support request and promptly return your inquiry.
(b) Phone Support: Phone Support can be reached at 1-800-455-GOLF. Phone support is available 8:00 AM – 11:00 PM EST (5:00 AM – 8:00 PM PST) Monday – Friday.
(c) On-Line ticket System: Tickets can be submitted via the aboutGOLF support portal at support.aboutgolf.com/portal/signin#newticket 24/7 365 days. A Technical Support Representative will review support request and promptly respond.
2. Facility Non-Hosted Software: Software provided with the aG Facility includes:
a) Perform Pro
c) Arcade Games
d) Bar Games
e) Club Fitting
f) Stat Golf
g) Challenges Games
h) Classic Events
i) Custom Stroke
3. Response and Resolution. Upon notification by Customer of an issue with the Facility Software, aG will use commercially reasonable efforts to resolve such issue based on the severity levels provided within the response and resolution times.
SEVERITY LEVELS AND RESPONSE/RESOLUTION TIMES
Q1 - CRITICAL: Safety concerns for the general public, employees, or surrounding areas - Full disruption of business operations
Contact Method: Email or phone account manager directly with photos and/or videos of concerned area
Initial Response Time: 2 hours
Fix or Workaround Implementation: 24 hours
Q2 - SERIOUS: aboutGOLF Software / Hardware not functioning causing issues with business operations. A lower rate of performance disabling or impeding business operations
Contact Method: Submit service ticket request, email or phone account manager
Initial Response Time: 2 hours
Fix or Workaround Implementation: 24 hours
Q3 - SIGNIFICANT: The condition with the simulator software or hardware impacting the business to function at optimum levels The limited or non-critical functionality, not impending business operations but is considered a defect or low-level disruption
Contact Method: Online service ticket request
Initial Response Time: 24 hours based on resources
Fix or Workaround Implementation: 48 hours
Q4 - MINOR: Hitting environment or aG technology need attention.
Contact Method: Online service ticket request
Initial Response Time: 48 hours based on resources
Fix or Workaround Implementation: 3 Business Days
aboutGOLF® GLOBAL LINKS™ MEMBERSHIP SUBSCRIPTION AGREEMENT AND LICENSE
This is a subscription agreement and license (“Agreement”) between aboutGOLF Global, Inc. (“aG”) and you (whether an individual or entity, and hereinafter referred to as the “Customer”) containing the terms of Software Subscription referenced in the Order Form executed by the Customer for purchase of an aG Facility. By executing the Order Form Customer agrees to be bound by the terms of this Agreement. Please print a copy for your records. The Customer further agrees to be bound by this Agreement by accessing software and services (“Member Content”) from aG during Customer’s Software Subscription. Please print a copy of this Agreement and attached Schedules for your records.
1. aG Subscription Software License and Software Subscription. Upon purchase of an aG golf simulator (“Facility”) pursuant to the aG Purchase Agreement, Customer will select an initial level of Software Subscription as set forth in Schedule 1 attached to the Order Form of the Facility Purchase Agreement. For and in exchange for the applicable Software Subscription fee, as such fee may be adjusted from time, aG will provide the Customer with non-exclusive, non-transferable, non-sublicensable, access and revocable license (a “License”) to the software and services (the “Member Content”) for the Customer’s use during the Term of Software Subscription, including access to the Member Content on aG Facilities and other devices. The Customer will only use the Member Content as set forth in this Agreement.
2. User Name, Account and Password. Customer will be provided with information to create an aG Software Subscription account that provides access to the Member Content, including mobile access via login credentials. Customer agrees not to provide any other party with its login credentials. Violation of this policy will result in immediate termination of the Customer’s Software Subscription without refund.
3. Term. The Agreement is effective upon execution of the Agreement and continues for one (1) year from the Effective Date of this Agreement. Upon the expiration of the first year, the Agreement shall automatically renew for successive periodic terms of one calendar year (each, a “Successive Term”), unless the Customer provides at least ten (10) business days advance written notice to aG of the Customer’s desire to terminate the Agreement. Such notice shall be delivered to aG as set forth in Section 12.
4. Payment of Subscription Fees. Subscription Fees shall be billed annually on a recurring basis and shall be automatically charged at the end of the first Term and each Successive Term, unless the Customer terminates this Agreement in accordance with the terms of this Agreement. If for any reason the Customer fails to pay the Subscription Fees when due, aG has the right to charge the Customer a late fee of 3% for up to two (2) weeks, after which the Customer’s Software Subscription shall be terminated if unpaid. aG may also, without limiting any other rights or remedies available to it, suspend the Customer’s access to its website and/or Member Content until such outstanding amounts are paid in full.
5. License Grant.
a) Subject to Customer’s payment of all amounts due under this Agreement and compliance with all of the terms of this Agreement, aG grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license (a “License”) during the Term (as defined in Section 3) to authorize Customer to access the Member Content from servers operated by aG or a third party host for Customer’s use. Schedule 1 attached hereto sets forth the terms of the Member Content License Grant.
b) Member Content may include third party software. aG represents it has the rights to use of such third party software by Customer.
c)Customer agrees and acknowledges that aG may access the Customer’s password-protected account(s), if any, to respond to service or technical problems or to ensure compliance with the Agreement; and
d) The License granted to Customer under this Agreement is limited to the rights expressly granted herein; aG expressly reserves all other rights. No other rights are granted and any other use is expressly prohibited.
6. Support. aG shall provide support for the Membership Subscription as set forth in Schedule 2.
7. aG Responsibilities.
a) aG agrees to use commercially reasonable efforts to make the Member Content available to Customer pursuant to the service level agreement provided in Schedule 2, except for (i) planned downtime or unplanned outages to make any changes, modifications, updates, and enhancements; or (ii) any unavailability caused by circumstances beyond aG’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving aG employees), Internet service provider failures or delays, or denial of service attacks.
b) aG further agrees to use commercially reasonable efforts to provide the Member Content only in accordance with applicable laws and government regulations and to ensure that its servers and other hardware related to the Member Content are maintained in a secure environment, exercising a reasonable standard of care customary in the industry.
8. Customer Responsibilities. Customer shall:
a) use commercially reasonable efforts to prevent unauthorized access to or use of the Member Content;
b) notify aG immediately of any such unauthorized access or use; and
c) use the Member Content only for its intended purpose and in accordance to applicable laws and government regulations.
b) You may opt out of any future contacts from us at any time. by contacting us via the email address or phone number provided on the Order Form:
c) You may contact us to:
(i) determine what Customer Information we have about you, if any;
(ii) change/correct any Customer Information we have about you The Customer represents and warrants that all Customer Information provided to aG will be true and accurate. aG shall not be liable for the deletion, destruction, damage, loss or failure to store any of the Customer’s Information except for the negligence or willful misconduct of aG with respect to storing Customer’s Information;
(iii) have us delete any Customer Information we have about you; and
(iv) express any concern you have about our use of your Customer Information.
d) we take precautions to protect your Customer Information. When you submit sensitive information via the website, your information is protected both online and offline. If we collect sensitive information (such as credit card data), that information is encrypted and transmitted to us in a secure way. While we use encryption to protect sensitive information transmitted online, we also protect your information offline. Only employees who need the information to perform a specific job (for example, billing or customer service) are granted access to personally identifiable information. The computers/servers in which we store personally identifiable information are kept in a secure environment.
10. Updates. aG reserves the right to make changes, modifications, updates, and enhancements to the Member Content from time to time without providing advance prior notice to Customer. Customer acknowledges that this Agreement is not contingent upon the delivery of any future functionality or features of Member Content, and nothing in this Agreement obligates either aG or Customer to enter into any future Order Form or any further agreements. Customer acknowledges this Agreement and any Order Form and Purchase Agreement are not dependent in any way on any oral or written private or public comments made by aG regarding future functionality or features of the Member Content.
11. Upgraded Software Subscription. During the Term, aG may from time to time provide Customer with the right to obtain access to features and functionality available in a different Software Subscription service plan (“Upgraded Software Subscription”), at pricing and terms set by aG. If aG provides an upgrade during a Term, and Customer elects to upgrade at that time, Customer shall pay the prorated remaining balance of the Software Subscription fees due for the Upgraded Software Subscription Fee for that year. The fee for such Upgrades will be charged to Customer upon acceptance.
12. Termination of Software Subscription.
a) Either party may terminate the Agreement without cause before the end of the Term, upon thirty (30) days written notice to the other party, provided, however, that Customer shall pay aG an early termination fee of 25% of the remaining balance of the yearly Software Subscription fee.
b) The Parties’ right to terminate the Agreement pursuant to this Section 11 without prejudice to, and shall not affect any other remedies available to, the parties.
c) Upon Termination, Customer’s access to Member Content on the aG Facility shall be removed. Customer shall still have access to basic content (e.g. “aG Locker” content, provided to all Facility Customers with the Simulator and on mobile devices)
13. Limitations on Use of Member Content. The Customer acknowledges and agrees that its use of the aG website and the Members Content shall be subject to the following conditions:
a) Customer is authorized to a single access right to access and use the Member Content;
b) Customer will not license, sublicense, sell, transfer, assign, perform, display, distribute or otherwise exploit its Software Subscription or make the Member Content available to third parties;
c) The Customer will not disassemble, reverse engineer, modify, translate, alter, decompile, or create derivative works from the Member Content;
d) The Customer will not create Internet links to the Member Content or “mirror” any content contained within the Member Content on any other Internet-based device or otherwise provide access to aG’s Member Content in whole or in part;
e) The Customer will not use the Member Content for any purpose that violates the rights of any third party or applicable law;
f) The Customer will not gain unauthorized access to the Member Content or the related systems or networks thereto; and
g) aG shall have the right to immediately terminate this Agreement for any material breach by Customer, suspend the Customer’s access to the Member Content or exercise any other right or remedy available to it under this Agreement, at law or in equity.
14. Intellectual Property Rights. The Customer acknowledges that aG retains all right, title and interest in and to any and all technology and intellectual property within the aG website, the Member Content, or the provision any of the foregoing, including, without limitation, all patents, inventions, copyrights, trade secrets, trademarks, service marks, trade names and other intellectual property rights (collectively, “Intellectual Property”) Nothing in this Agreement shall give the Customer any right, title, claim or interest in or to any such Intellectual Property. In the absence of aG’s prior written consent, the Customer shall not use in any manner Intellectual Property except as permitted by this Agreement. All aG rights in the website and the Member Content are expressly reserved.
15. No Warranties.
THIS IS A SERVICE AGREEMENT. aG DOES NOT MAKE AND CUSTOMER DOES NOT RECEIVE ANY WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND AG EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, USAGE OF TRADE AND COURSE OF DEALING TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. Ag DOES NOT WARRANT THE ACCURACY OF THE INFORMATION INCLUDED WITHIN THE aG WEBSITE OR THE MEMBER CONTENT, OR THE ANALYSES OF THAT INFORMATION, OR ANY RESULTING CONSEQUENCES THAT MAY OCCUR AS A RESULT OF CUSTOMER’S RELIANCE UPON SUCH INFORMATION, MEMBER CONTENT OR ANALYSES. THE INFORMATION CONTAINED IN THE aG WEBSITE AND WITHIN THE MEMBER CONTENT IS PROVIDED “AS IS.”
THE CUSTOMER UNDERSTANDS THAT aG CANNOT AND DOES NOT GUARANTEE OR WARRANT THAT FILES MADE AVAILABLE FOR DOWNLOADING OR VIEWING FROM THE INTERNET WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER SOFTWARE CODE THAT MAY MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. THE CUSTOMER IS RESPONSIBLE FOR IMPLEMENTING SUFFICIENT SECURITY PROCEDURES TO PROTECT ITS DEVICES FOR ACCESSING THE INTERNET, TO PRESERVE ACCURACY OF DATA INPUT AND OUTPUT, AND FOR MAINTAINING A MEANS EXTERNAL TO THE SITE FOR THE RECONSTRUCTION OF ANY LOST DATA. aG DOES NOT ASSUME ANY RESPONSIBILITY OR RISK WHATSOEVER FOR YOUR USE OF THE INTERNET.
16. aG Indemnification.
a) aG will defend the Customer from and against any claim, demand, suit or proceeding made or brought against the Customer by a third party alleging that the Customer’s proper use of the Member Content constitutes infringement of any United States patent, trademark or copyright of any third party (a “Claim”), and aG shall indemnify the Customer for any damages, attorney fees and costs finally awarded against the Customer as a result of, and for amounts paid by the Customer under, a court-approved settlement of a Claim; provided that the Customer:
(i) promptly gives aG written notice of the Claim;
(ii) gives aG sole control of the defense and settlement of the Claim (provided that aG may not settle any Claim unless the settlement unconditionally releases the Customer of all liability); and
(iii) provides aG all reasonable assistance requested at aG’s expense.
b) in the event of an assertion of infringement of third party’s rights, aG may, at its sole discretion and sole expense:
(i) modify or replace all or any portion of the Member Content so that it becomes non-infringing;
(ii) obtain a license for the Customer’s continued use of the website or Member Content; or
(iii) immediately terminate the Customer’s membership subscription and provide Customer a prorated refund of Subscription Fees paid by the Customer to aG.
c) aG shall have no obligation to indemnify Customer if the Claim results from, rises out of or relates to the Customer’s failure to properly access or use the Member Content in accordance with instructions and parameters provided by aG, or for gross negligence or willful misconduct of Customer. The foregoing provisions constitute Customer’s sole and exclusive remedies and aG’s entire liability, with respect to Claims.
17. Customer’s Indemnification. The Customer shall defend aG against any claim, demand, suit or proceeding made or brought against aG by a third party alleging Customer’s misuse of aG Member Content which violates any applicable laws and including violation of aG policies, terms and conditions, or where Customer has acted in a negligent manner or with willful misconduct regarding Customer’s use of Member Content (“Claim against Customer ), and against any claim, demand, suit or proceeding made or brought against aG by a third party alleging Customer’s generated content, such as advertisements, violates any applicable laws, and the Customer agrees to indemnify aG for any damages, attorney fees and costs awarded against aG for Customer’s misuse; provided that aG:
a) promptly gives the Customer written notice of the Claim against Customer;
b) gives the Customer sole control of the defense and settlement of the Customer Claim (provided that Customer may not settle any Customer Claim unless the settlement unconditionally releases aG of all liability); and
c) provides the Customer all reasonable assistance requested at the Customer’s expense.
18. Limitation of Liability.
a) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR LOSS OF PROFITS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM CUMULATIVE AND AGGREGATE LIABILITY OF aG FOR ALL CLAIMS ARISING UNDER OR RELATED IN ANY WAY TO THIS AGREEMENT FROM ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT OR OTHER STATUTORY, LEGAL OR EQUITABLE GROUNDS, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER OVER A TWELVE (12) MONTH PERIOD.
19. Changes to This Agreement. aG reserves the sole right, from time to time, with or without notice, to change the terms of this Agreement in the sole and absolute discretion of aG. The most current version of this Agreement can be reviewed by visiting the aG Links Membership Subscription Terms of Service link provided when the Customer accesses the Member Content. The most current version of this Agreement will supersede all previous versions.
20. Miscellaneous Provisions.
a) No Assignment. The Agreement shall not be assigned, delegated or otherwise transferred by Customer without the prior written consent of aG, and any such unauthorized transfer shall be null and void.
b) Successors. This Agreement shall inure to and be binding upon the party’s successor(s).
c) Entire Agreement. This Agreement constitutes the entire agreement between the parties, superseding all previous communications and negotiations, whether written or oral.
d) Severability. If any part of the Agreement is held by any court of competent jurisdiction to be invalid, the remaining parts of this Agreement shall continue to be valid and enforceable as to the parties hereto.
e) No Waiver. The waiver or failure of either party to exercise in any respect any right provided for such party herein shall not be deemed a waiver of any further right hereunder.
f) Notices. Any notice which may be permitted or required under the Agreement shall be delivered personally, or by facsimile or other electronic means, or sent by United States registered or certified mail, postage prepaid, addressed to:
aboutGOLF Global, Inc.
5105 Carillon Pt.
Kirkland, WA 98033
and to the Customer at the address provided by the Customer on the Order Form, unless Customer notifies aG in writing of a change of address. Notice given by facsimile or other electronic means shall promptly be confirmed by registered or certified mail or overnight carrier shall be deemed to be received upon verification that such facsimile or electronic communication was received by the other party. Notice by registered or certified mail or overnight carrier and shall be deemed to be received two (2) days following the date of mailing, provided such notice is properly addressed and sufficient postage is affixed thereto, or the actual date of receipt, whichever is earlier.
g) Force Majeure. If performance by either party of any other obligation under the Agreement, except for Customer’s payment obligations hereunder, is prevented, restricted, delayed, or interfered with by reason of causes beyond its reasonable control, including, without limitation, natural disasters, governmental actions, floods, fires, arson or civil disturbances, transportation or telecommunications problems, Customer caused errors, failure of third party licensors or vendors to support software or hardware products, or failure of aG’s suppliers or subcontractors, then such party shall be excused from such performance for such time as may be required for the party, through the exercise of commercially reasonable efforts, to cure such prevention, restriction, delay, or interference. The party affected by a force majeure event will advise the other party in reasonable detail of the event as promptly as practicable, including the estimated duration of the event, and keep the other party reasonably apprised of the progress in resolving the event.
h) Jurisdiction. The Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Washington, without reference to, or application of, its conflict of laws principles. Any litigation under the Agreement must be brought in a state or federal court sitting in the King County, Washington. EACH OF THE PARTIES IRREVOCABLY WAIVES ITS RESPECTIVE RIGHT TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THE AGREEMENT IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST THE OTHER.
SCHEDULE 1: USER LICENSE FOR aG LINKS™ MEMBER CONTENT
This User Software License Agreement ("License") is an agreement between aboutGOLF Global, Inc. (“aG”) and the Customer for the Member Content, including hosted software, electronic documentation, printed documentation or media documentation. By installing, copying or otherwise using the Member Content software, Customer shall be bound by the conditions and terms of this License. Please make a copy of this Agreement for your records. Current versions of this Agreement shall be available at the Customer portal url: https://books.zoho.com/portal/aboutgolfglobalinc
Member Content can be accessed via the main user interface of the software provided with the Facility and/or devices, including mobile communication devices.
The Member Content is licensed, but not sold, to Customer. Customer may not alter, distribute, lease or sell the Member Content for commercial or any other purposes, nor can the software be separated from the hardware and transferred to any third party or otherwise decompiled or reverse engineered.
INTELLECTUAL PROPERTY RIGHTS
Customer acknowledges the Member Content is protected by applicable trademark, copyright and patent laws as well as other intellectual property laws owned by aG, and its third-party licensors, and Customer agrees to respect and assist in protecting such intellectual property. All right, title and interest in and unto the trademark, copyright, trade secret and any patent rights to the Member Content, including, without limitation, any know-how, photographs, animations, images, video, audio, music, text and applets, inventions, sketches, the electronic documentation, printed documentation and media documentation associated therewith are owned by aG or otherwise licensed to aG for its use
aG MAKES NO REPRESENTATIONS OR WARRANTIES EXCEPT AS SET FORTH HEREIN, AND HEREWITH DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH REGARD TO THE MEMBER CONTENT, AND THE PROVISION OR FAILURE TO PROVIDE SUPPORT. aG DOES NOT WARRANT THAT THE MEMBER CONTENT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ITS AVAILABILITY WILL BE UNINTERRUPTED OR ERROR FREE; IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE MEMBER CONTENT OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
This License shall be governed by the laws of the State of Washington.
This License is the Entire Agreement Between aG with respect to the Customer’s use of the software associated with the Facility and supersedes any and all prior representations, communications or advertising.
No changes or modifications of this License shall be valid unless executed in writing by aG and the Customer.
SCHEDULE 2: SUPPORT SERVICES FOR ABOUTGOLF® LINKS™ MEMBER CONTENT
1. Support Services. During the Subscription Period, aboutGOLF Global, Inc. (“aG”) will use commercially reasonable efforts to provide the following support services for the Membership Subscription (the “Support Services”):
a) General Support. aG will provide support via phone, email, and online resources to assist in using the Member Content. aG will use reasonable efforts to identify, reproduce, and verify problems with the Member Content, and to provide Customer with workarounds or other available solutions. Customer agrees to make reasonable efforts to resolve technical support problems before contacting aG.
b) Email: Email support is available via <a href="mailto:email@example.com" ;="" target="_self">support@aboutGOLF.com</a> Monday through Friday from 8a to 8p Eastern Standard Time.
2. Scheduled Maintenance. aG shall conduct software maintenance one day per week during non-business hours that are Eastern Standard Time. aG shall notify Customer of this schedule maintenance reasonably in advance.
3. Uptime. The minimum Uptime for the Services shall be 99.9% on a 24x7x365 basis except as specified in the following definition. “Uptime” means the percentage of time in any month during which the Services are available to the customer, excluding (i) regular or scheduled maintenance time, (ii) unavailability caused by circumstances beyond aG’s reasonable control, including without limitation acts of God, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving aG’s employees), (iii) telecommunications, internet service providers, or hosting facility failures, interruptions, or delays involving hardware, software, or power systems not within aG’s reasonable control, (iv) network intrusion or denial of service attacks, and (v) any interruption or unavailability not promptly reported to aG. An interruption of the Services of less than 5 minutes is considered intermittent and will not count against Uptime.
4. Error Response and Resolution. Upon notification by Customer of an error with the Simulator or Subscription Software, aG will use commercially reasonable efforts to resolve such error based on the severity levels provided within the response and resolution times:
SEVERITY LEVELS AND RESPONSE/RESOLUTION TIMES
Resolution of certain errors may require a test case that reproduces the error. In such case, Customer agrees to cooperate with aG to develop an appropriate test case that reproduces the error.
PO: Severe defects or errors rendering software or hardware completely unusable - System failure and function with no workaround or fix - Full disruption of business operations
Initial Response Time: 4 hours
Fix or Workaround Implementation: 24 hours
P1: Major software functions are impaired, operations can continue but with a moderate level of risk - A lower rate of performance disabling or impeding business operations
Initial Response Time: 8 hours
Fix or Workaround Implementation: 2 Business Days
P2: The limited or non-critical functionality, not impending business operations but is considered a defect or low-level disruption - Impaired operation of software or hardware usage can continue without business disruption
Initial Response Time: 24 hours based on resources
Fix or Workaround Implementation: 3 Business Days
P3: A one-off case occurs infrequently not reproduced easily, no danger of corruption, low priority software defect that does not affect normal usage can be accepted for a short period of time request fix for full software functionality
Initial Response Time: 48 hours based on resources
Fix or Workaround Implementation: Next Software Release