SKYGOLF AND SKYCADDIE END USER LICENSE AGREEMENT
TERMS AND CONDITIONS
Revised 06/04/2010
This License Agreement is a legal agreement between you and SkyHawke Technologies, LLC (“Licensor”). You acknowledge that you have read, understood and agreed to this License Agreement, and you agree that this License Agreement is enforceable like any written negotiated agreement signed by you. This License Agreement applies in connection with your use of and access to SkyGolf accounts and in connection with the SkyCaddie® GPS range finder and accessories. You acknowledge and agree to this License Agreement by clicking the “ACCEPT” button, and by proceeding with either the creation of a SkyGolf account or the download and installation of any software in connection with either a SkyGolf account or a SkyCaddie® device, whether from the Internet, disks, CD-ROM, or any other media. Any and all software (including any embedded software, drivers, enhancements, revisions, downloads, modifications or updates), documentation and any fonts, whether on disk, in read only memory, on any other media or in any other form, that either came with your SkyCaddie® device or is downloaded or provided in connection with a SkyGolf account (collectively, the “SkyGolf Software” or “Software”) are licensed, not sold, to you by Licensor for use only under the terms of this License Agreement, and Licensor reserves all rights not expressly granted to you. (As used in this License Agreement, “SkyGolf Software” and “Software” includes, but is not limited to, SkyGolf course maps and the components thereof, and any separate reference to SkyGolf course maps is for clarity or emphasis purposes.
PLEASE READ CAREFULLY THIS LICENSE AGREEMENT BEFORE CLICKING ON THE ACCEPT BUTTON. CLICKING THE ACCEPT BUTTON AND PROCEEDING WITH EITHER THE CREATION OF A SKYGOLF ACCOUNT, REGISTRATION OF YOUR SKYCADDIE® OR THE ACCESSING, DOWNLOADING OR INSTALLATION OF ANY SKYGOLF SOFTWARE INDICATES YOUR ACCEPTANCE OF THESE LICENSE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, YOU SHOULD NOT CLICK ON THE ACCEPT BUTTON OR PROCEED FURTHER AND YOU SHOULD RETURN THE PRODUCT PACKAGE TO THE POINT OF PURCHASE WITHIN THIRTY (30) DAYS TO APPLY FOR A REFUND.
1) Grant of License — Licensor provides limited access to the SkyCaddie® Membership Plan Software (including the SkyGolf course maps associated with your Plan) and SkyGolf internet web site access, and grants a limited license for their use by you for the duration and under the terms of this License Agreement. You will lose access to the SkyGolf course maps downloaded to your SkyCaddie® device as well as any scores, statistics and other information you have stored on your SkyGolf account on expiration of the term of your SkyCaddie® Membership Plan if not timely renewed. Licensor reserves the right to stop offering Membership Plan renewals at any time without notice.
a. Subject to paragraph 5 below and the other terms of this License Agreement, you are granted a nontransferable, non-exclusive license to use the SkyGolf Software (and access the SkyGolf course maps) under the terms stated in this License Agreement and your SkyCaddie® Membership Plan License Agreement for solely personal noncommercial use in connection with one (1) SkyCaddie® device. Title, ownership and copyright of the SkyGolf Software (including the SkyGolf course maps) and any scores, statistics and other information stored on your SkyGolf account are vested in, and remain with, the Licensor. The rights granted herein are limited to the use of the SkyGolf Software, the SkyGolf course maps and your SkyGolf account in accordance with this License Agreement, and do not include any rights in any patents or other intellectual property rights of Licensor.
b. Except as and only to the extent expressly permitted in this License or by applicable law, you may not copy, de-compile, re-compile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works or translations of the Software including the SkyGolf course maps. The SkyGolf Software, the SkyGolf course maps and other software downloaded from the Licensor’s web site may not be used with, transferred or transmitted to any other GPS hardware, GPS Software, or any other user or medium, except to an authorized SkyCaddie® hardware/software system in your name (or the name of a transferee authorized by Licensor) for personal noncommercial use in accordance with this License Agreement. Licensor reserves the right to limit the number of SkyGolf course maps downloaded to your SkyCaddie® device, both in terms of total number of courses downloaded and number of courses downloaded over any given period of time.
c. You may not assign, distribute, lease, rent, lend, sublicense, or transfer this license to the SkyGolf Software, the SkyGolf course maps or any of their modules or components, except as provided herein or by item (b) above, or disclose the SkyGolf Software or SkyGolf course maps to any other person or entity, or otherwise offer access to or use of, the SkyGolf Software or SkyGolf course maps via the Internet or via any other network which is available to or accessible by third parties. Any attempt to do so is a violation of the rights of Licensor and its licensors of the SkyGolf Software. If you breach this restriction, you may be subject to prosecution and damages. You may, however, make a one-time permanent transfer of all of your license rights to the SkyGolf Software to another party in connection with the transfer of ownership of your SkyCaddie® device, provided that: (a) the transfer must include your SkyCaddie® device and all of the SkyGolf Software, including all its component parts, original media, printed materials and this License; (b) you do not retain any copies of the SkyGolf Software or SkyGolf course maps, full or partial, including copies stored on a computer or other storage device;
(c) the party receiving the SkyGolf Software reads and agrees to accept the terms and conditions of this License and
(d) the transfer is not of a commercial nature. You agree to reasonably cooperate with Licensor in inquiries by Licensor regarding your downloading and/or use of SkyGolf course maps or other SkyGolf Software.
d. You agree that Licensor may send communications to you regarding the SkyGolf Software, your SkyGolf account and other notifications relevant to the SkyCaddie® device you have registered with Licensor.
e. This License Agreement is effective until expiration, unless sooner terminated by Licensor. To the extent this License Agreement includes the licensing of software or other components also licensed in connection with a SkyGolf Membership Plan (including access to SkyGolf course maps and to advanced course management features), this License Agreement expires simultaneously with the expiration of such Membership Plan. Additionally, this license terminates, without notice, if you fail to comply with any provision of this Agreement. You agree upon expiration or termination to destroy the SkyGolf Software, together with all copies, modifications and merged portions in any form, including any copy in your computer memory or on a hard disk.
2) LIMITATION OF LIABILITY
LICENSOR PROVIDES THE SKYGOLF SOFTWARE ON AN “AS IS” BASIS AND DOES NOT WARRANT THE EXECUTION OR PERFORMANCE OF THE SOFTWARE. NO WARRANTIES ARE EXPRESSED AND NONE SHALL BE IMPLIED. LICENSOR SPECIFICALLY EXCLUDES ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE FOREGOING MAY NOT APPLY TO YOU. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR A LICENSOR AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SKYGOLF SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. NO REFUNDS SHALL BE GIVEN FOR SKYGOLF SOFTWARE, OR FOR SUBSCRIPTION FEES PAID FOR SKYGOLF COURSE MAP DATABASES. IN NO EVENT SHALL LICENSOR’S LIABILITY TO YOU FOR DAMAGES HEREUNDER FOR ANY CAUSE WHATSOEVER EXCEED THE AMOUNT PAID BY YOU FOR USE OF THE SOFTWARE. IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY LOST PROFITS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE ANY SKYCADDIE® DEVICE, SKYGOLF SOFTWARE AND SOFTWARE UPDATES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
THE SKYGOLF SOFTWARE IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES OR OTHER EQUIPMENT IN WHICH THE FAILURE OF THE SKYGOLF SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
Please be advised that golf is an inherently dangerous activity, and use of the SkyCaddie® on a golf course is at your own risk.
3) Export Control — You may not use or otherwise export or re-export the SkyGolf Software except as authorized by United States law and the laws of the jurisdiction(s) in which the SkyGolf Software was obtained. In particular, but without limitation, the SkyGolf Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the SkyGolf Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the SkyGolf Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.
4) U.S. Government Restricted Rights — The SkyGolf Software is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions set forth in subdivision (c) (1) of The Rights in Technical Data and Computer Software clause at 252.227-7013. Contractor/Manufacturer is SkyHawke Technologies, LLC, 274 Commerce Park Drive - Suite M, Ridgeland, MS 39157.
5) Requirement to Purchase a SkyCaddie® Membership Plan — Some or all of the SkyGolf Software (including access to SkyGolf course maps and advanced course management features) may not be used without a current SkyCaddie® Membership Plan. To the extent any of the SkyGolf Software is included in a SkyCaddie® Membership Plan, you must separately purchase the SkyCaddie® Membership Plan, and the use and license of such SkyGolf Software is subject to and governed by the SkyCaddie® Membership Plan and any license agreement in connection with such Membership Plan. If you do not purchase the SkyCaddie® Membership Plan, you will not have access to, and are not granted a license hereunder for, such SkyGolf Software.
6) No Responsibility for GPS System — Use of the SkyGolf Software and any SkyCaddie® device is dependent on the global positioning system. The global positioning system is a free service operated and maintained by the United States Government, which is solely responsible for its accuracy and maintenance. Licensor shall have no liability or responsibility for any failure in, or any limitations of, the global positioning system.
7) Ownership of Uploaded Data — You agree, for and in consideration of Licensor offering to you the license granted in accordance with the terms of this License Agreement, that any data uploaded by you to Licensor or to any website maintained by Licensor shall be and become the property solely of Licensor, and you hereby assign, convey and transfer to Licensor all of your right, title and interest in and to such data, including, without limitation, any copyright or other intellectual property rights you may have in such data.
8) Special Notice Regarding Certain Course Maps Contained in the SkyGolf Course Map Database — Pebble Beach®, Pebble Beach Golf Links®, Spyglass Hill® Golf Course, The Links at Spanish Bay™, Del Monte™ Golf Course, Peter Hay™ Golf Course, and their individual holes, course designs and respective underlying distinctive images are trademarks, service marks, and trade dress of Pebble Beach Company. Used under license.
9) Amendments or Modifications to This License Agreement, Modification of Software Support — Licensor shall have the right to amend or modify this License Agreement from time to time. All such amendments or modifications shall be effective on the date the amended or modified End User License Agreement and Terms and Conditions is posted to Licensor’s website at www.skygolf.com. Licensor reserves the right to change or discontinue its support of the SkyGolf Software.
10) Choice of Law — This License Agreement is governed by the laws of the State of Mississippi, without regard to the principles of conflict of laws. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License Agreement shall continue in full force and effect.
11) Complete Agreement — This License Agreement, together with any license agreement you entered in connection with a SkyCaddie® Membership Plan, constitutes the entire agreement between the parties with respect to the use of the SkyGolf Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License Agreement will be binding unless in writing and signed by Licensor. Any translation of this License Agreement is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License Agreement shall govern.
12) Beta Test Features — One or more features of the SkyCaddie® (including applications used in connection with the SkyCaddie®) may be in beta test mode (the “beta features”). The beta features are generally identified in the process either to register your SkyCaddie® or purchase your SkyCaddie® Membership Plan, and the beta features identified therein may be changed from time to time. The use and continuation of these beta features are subject to this License Agreement. As a beta tester, you are invited to use the beta features. The beta features are provided “AS IS” and “AS AVAILABLE,” and we make no warranty of any kind, express or implied, with respect to the beta features. By using the beta features, you agree that (i) use of the beta features is at your own risk and for the purpose of evaluating the features and identifying errors, (ii) the beta features may include known and unknown bugs and (iii) SkyGolf may discontinue or modify the beta features at any time and from time to time. SkyGolf makes no guarantee that the beta features will ever be released from beta testing as a full feature for use with the SkyCaddie®. The beta features may initially be provided free of charge. SkyGolf may, at any time, discontinue any such free use and may, at any time and from time to time, make access to or use of the beta features (and the features upon full release) subject to payment of additional fees or costs.