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 GOLF SIMULATOR
(a) Golf Simulator components and software purchased by the Customer are detailed on the Customer Order Form.
(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 “Golf Simulator”), as described in the Order Form after payment in full of the Purchase Price stated in the Order Form.
(c) Simulators acquired through third party acquisition may require additional costs to get set up and get access to the software.
(d) Payment. The customer agrees to pay to aG the purchase price for the Golf Simulator and the Software Subscription selected by Customer as stated in the Order Form, upon acceptance of the Golf Simulator, as provided in Section 3, below. Payment terms are agreed upon on the order form, if not clearly stated, standard payment terms are 80/20. 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 if Customer schedules delivery of the Golf Simulator 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 Golf Simulator 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 Golf Simulator. aG agrees to terminate any such UCC-1 filings at the point in time Customer has paid the purchase of Golf Simulator in full and obtains ownership of the Golf Simulator.
3. INSTALLATION AND ACCEPTANCE
(a) Preparation for Delivery. Appropriate permitted housing for the Golf Simulator must be provided at the time of installation. The 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 Golf Simulator by aG shall commence as soon as practical after delivery, provided all requirements of Schedules 1 and 2 are met.
(c) Acceptance. Customer must inspect and report any damage or accept Golf Simulator in writing to AG, within 24 hours following calibration of the Golf Simulator. Customer affirms that they will acknowledge acceptance of the Golf Simulator 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 daytime period, AG shall replace the Golf Simulator. Customer shall be deemed to have unconditionally accepted the Golf Simulator after calibration of the Golf Simulator, unless Customer gives aG written notice of any defect or damage to the Golf Simulator as set forth in this Section 3. The foregoing process shall repeat until such time as the Customer has accepted the Golf Simulator 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 Golf Simulator 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 Golf Simulator, which aG shall provide. Golf Simulator shall not be labeled with any other markings.
(c) Customer agrees that the Golf Simulator and all its respective component parts and software constitute a single product which may not be dismantled unless consulted with aG for any defects and/or replacements, 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 Golf Simulator, 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.
(d) Non aG Approved Third Party Components and Software. The Customer agrees that any integration or addition of components, hardware and software to the single product of the Golf Simulator that is not approved or tested by aG will not be subject to any Technical Support (Section 8 and Schedule 5) and will waive the Golf Simulator Limited Warranty (Section 7 and Schedule 4) of this Agreement. Prior to adding equipment or software to your Golf Simulator product, please contact email@example.com to avoid the possibility of the warranty being voided.
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 Golf Simulator, Customer agrees to subscribe to an annual aG Software Subscription agreement which will be specified on the Order Form, 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. By agreement to these Terms and Conditions, the Customer agrees to the aG Software Subscription Agreement and License (the “Software Subscription Agreement”). If the Software Subscription Agreement is terminated prior to the renewal of the term specified in the Order Form, access to the content provided for members shall be removed, as set forth in the Software Subscription Agreement termination provisions at the discretion of aG.
7. LIMITED WARRANTY
Except for the Limited Warranty attached hereto as Schedule 4, aG makes no warranty with respect to the Golf Simulator, 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 Golf Simulator, 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®, aboutGOLF®, aG Balance Pro®, aG Flix®, 3Trak®, and aG Balance™.
(c) Microsoft logos are registered trademarks or trademarks of Microsoft Corporation.
(d) All respective courses within the software and their respective underlying distinctive images, and individual hole designs are trademarks, service marks and trade dress of that specific course and cannot be used other than for individual play of the game, except with prior written permission of golf course.
(e) The Golf Simulator, including its associated software, is protected by international treaty provisions and copyright laws -- All Rights Reserved.
(f) 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.
(g) Customer agrees that aG owns all improvements to Golf Simulator 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.
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 GOLF SIMULATOR
(a) Maintenance and repair costs related to the Golf Simulator, 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 Golf Simulator software, Customer acknowledges that the Golf Simulator must be allowed to connect to the internet and that this connection should be maintained at all times that the Golf Simulator 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 Golf Simulator 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 Golf Simulator, 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 Golf Simulator.
(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 GOLF SIMULATOR, DESTROYED OR STOLEN GOLF SIMULATOR
After acceptance, Customer accepts the risk and responsibility for any loss, theft, destruction or damage of or to any item of the Golf Simulator.
Customer shall pay all taxes associated with Customer's purchase of the Golf Simulator, including, without limitation, all sales taxes, transfer taxes, personal property taxes, use taxes, and other state, local, and federal taxes. All tax-exempt customers must provide a tax-exemption certificate at the time the order is accepted by the Customer. Certificates will not be honored after order is signed and accepted. Customers shall not be liable for any income taxes or other taxes associated with the sale of the Golf Simulator for which aG would normally be obligated.
(a) Customer shall be in default of this Agreement if Customer:
(i) fails to make any Golf Simulator payment due under this Agreement per accepted terms
(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) At aG’s option and upon notice to Customer, Customer shall surrender all aG property, including the Golf Simulator and all aG software, documents, written or electronic to aG. In such event, aG may take possession of the Golf Simulator 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 Golf Simulator 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 Golf Simulator and software provided herein, and it supersedes any other Agreement or understanding, whether written or oral, with respect to the Golf Simulator 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 GOLF SIMULATOR
THE CUSTOMER OR CUSTOMER’S CONTRACTOR SHALL:
• Perform as the customer's point person to aG during design and installation
• 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
• 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 aG Flix Lighting or simulator required electrical components (if applicable)
• Install speaker systems if not provided by aG
• Install access panels around the simulator as needed
• Install blocking behind wall sheathing anywhere aG Golf Simulator Equipment is to be surface mounted onto the customers walls or ceiling
• Handle floor cut outs for recessed stance mat system if required
• Handle flooring transitions at the edges of the aG supplied turf.
• 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 Golf Simulator Equipment into building and simulator room
• ALL CONSTRUCTION ACTIVITY IN THE SIMULATOR ROOM MUST BE DONE PRIOR TO THE INSTALLATION INCLUDING BUT NOT LIMITED TO: 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.
• If construction work is being done in other areas, the simulator room should be sealed off
• The customer should identify and bring notice to items that could cause potential problems during the simulator installation. Some examples are: Radiant heat lines, sprinkler system, HVAC and plumbing runs, Columns, Beams,
SCHEDULE 2: CUSTOMER PRE-INSTALLATION SITE PREPARATION REQUIREMENTS
• Four (4) weeks prior to installation 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, customer flooring, mill work, finish electrical work and conduits, A/V work, drop down media screen installed, client supplied speakers installed. Pictures of the space are required by the aG design team to ensure the room is built to correct specifications.
• Client is responsible for providing light blocking shades for any windows in the simulator area to prevent washing out the projected image. A standard CAT 5 Ethernet (high-speed) 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 internet connection must be active at time of installation.
• aboutGOLF requires up to (2) dedicated 20-amp circuits per simulator. 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. Electrical details and locations will be included in the aboutGOLF design drawings.
• 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 installations 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.
• Client is responsible for protecting finished floors and surfaces in the area of the simulator with Ram Board or similar product.
**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
Tee Kits Supplied
aG Golf Balls Provided
aG Calibration Target & 3-Ball Jig are Present
Keyboard / Mouse
Touch Screen System Functionality Projection System Functionality
Projector Remote is Present
aG Flix® Camera System Functionality (if applicable)
aG Flix® Lighting and Remote Functionality (if applicable)
aG Balance™ System Functionality (if applicable)
SOFTWARE AND PERFORMANCE
aG Golf Game Functionality
aG Automation System Functionality (if applicable)
aG Media Integration System Functionality (if applicable)
Trajectory Confidence (90% or higher)
Spin Confidence (85% or higher)
Club Data (90% or higher)
SCHEDULE 4: LIMITED WARRANTY
Proper Use of Golf Simulator: Customer's failure to use the Golf Simulator properly may affect the safety and efficacy of the Golf Simulator and will void the warranty. Customer must use the Golf Simulator: (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 Golf Simulator was designed and intended. Customer must ensure that the Golf Simulator is properly stored, maintained, and protected. Customer may not modify the Golf Simulator in any manner including, without limitation, removing or modifying the hardware or software embedded in or supplied with the Golf Simulator. Customer may not use other software with the Golf Simulator.
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 Golf Simulator components are sourced independently, 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 three years 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 Golf Simulator 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 Golf Simulator.
Returns of Warranty Goods: In the event of a warranty claim, the Customer shall be responsible for the return of the Golf Simulator 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 Golf Simulator, 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 fulfil all warranty requirements.
LEGACY HARDWARE NO LONGER SUPPORTED
aG reserves the right to limit or suspend support for hardware, software and equipment/components that are no longer under aG or manufacturer warranty. In cases where a replacement component (while under warranty) isn’t available, aG will provide a suitable replacement with the understanding that features and functionality may differ from the originally installed product. aG will provide an upgrade path for customers to replace legacy and unsupported hardware/software.
Legacy hardware/software includes but is not limited to;
• Customer supplied components
• Customer supplied PC’s
• Windows 7 (or older) PC’s
• aG Flix 1.0 (Dragonfly)
• aG Flix 2.0 (includes lighting and peripherals)
• Portal/WinTV (software and hardware)
• Fli (software and hardware)
• 1st generation aG Balance
SCHEDULE 5: SUPPORT FOR GOLF SIMULATOR & 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 via phone, email, and online resources to assist the Customer in maintaining the aG software that is incorporated into the Golf Simulator at a high standard level of quality. aG will use commercially reasonable efforts to identify, reproduce, and verify problems with the Golf Simulator 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 requests 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 – 9:00 PM EST (5:00 AM – 5:00 PM PST) Monday – Friday.
(c) On-Line ticket System: Tickets can be submitted via the aboutGOLF website using the support form at https://www.aboutgolf.com/contact-support 24/7 365 days. A Technical Support Representative will review support requests and promptly respond.
2. Golf Simulator Non-Hosted Software: Software provided with the aG Golf Simulator includes:
a) aG Simulator
c) Arcade Games
d) Bar Games
e) Club Fitting
f) Stat Golf
g) Challenges Games
h) Classic Events
i) Custom Stroke
j) aG Soccer
3. Response and Resolution. Upon notification by the Customer of an issue with the Golf Simulator 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 (during available support 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 (during available support 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 (during available support hours)
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 (during available support hours)
Fix or Workaround Implementation: 3 Business Days
aboutGOLF® SOFTWARE 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 Golf Simulator. By executing the Order Form Customer agrees to be bound by the terms of this Agreement. Please print a copy of 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 (“Golf Simulator”) 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 Golf Simulator 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. 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 unless specified otherwise in the Order Form. Upon the expiration of the first term, 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 Golf Simulator shall be removed. Customer shall still have access to basic content (e.g., “aG Locker” content, provided to all Golf Simulator 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 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.