Last Updated: Jul. 17, 2017
TERMS OF SERVICE AGREEMENT
Welcome to 18Birdies, which is operated by 18Birdies, LLC (“18Birdies”, “we”, “us” or “our”). Please read these Terms of Service (“Agreement”) carefully, as it constitutes legally binding terms and conditions and applies to your use of (a) www.18Birdies.com and all corresponding subdomains, web pages and websites associated with the foregoing URL (the “Site”), (b) the 18Birdies app, which may be made available on the iOS, Android and/or other operating systems and platforms and (c) any other content, applications, systems, features, functionality, software, information, products and services offered by us, including, without limitation, application/device-based features and related technology (e.g., mobile, web, console, desktop, device and other apps, browser-enabled portals, websites, etc.) (collectively (i.e., the subsections (a), (b) and (c) above), the “Services”). This Agreement applies whether you are accessing the Services via a personal computer, a wireless or mobile device or any other technology or device (each, a “Device”). This Agreement does not cover other services, platforms, applications, websites or any corresponding content, features, programs, promotions or activities made available by any other company, person or entity, unless specifically stated.
1. Term. This Agreement shall remain in full force and effect while you use the Services. You may terminate your use of or registration for the Services at any time, for any reason, and 18Birdies may terminate your use of or registration for the Services at any time, for any or no reason, with or without prior notice or explanation, and without liability or obligation to you or any third party.
2. Modifications. We may modify this Agreement from time to time, and at any time, without notice to you, for any reason, in our sole discretion. We will post or display notices of material changes on the Services and/or notify you via electronic means, whether via e-mail, messaging or upon login or use of the Services about these changes; the form of such notice is at our discretion. Once we post or make them available on the Services, these changes become effective immediately and if you use the Services after they become effective it will signify your agreement to be bound by the changes. We recommend that you check back frequently and review this Agreement regularly so you are aware of the most current rights and obligations that apply to you.
3. Compliance. By using the Services, you represent and warrant that (a) you are 13 years of age or older and reside in the United States of America, its territories and possessions (the “U.S.”) and acknowledge and agree that features, activities and other aspects of the Services may be subject to heightened age and/or other eligibility requirements (e.g., purchases, contests, sweepstakes, promotions, rewards programs, etc.); (b) your use of the Services does not violate any applicable law, rule or regulation; and (c) you shall make timely and satisfactory payment for any Services purchased by you. If you provide information that is untrue, inaccurate, not current or incomplete, or 18Birdies suspects that such information is untrue, inaccurate, not current or incomplete, 18Birdies has the right to suspend or terminate your registration (in whole or in part) and refuse any and all current or future use of the Services (or any portion thereof), in its sole discretion, with or without notice to you, and without liability or obligation to you. By using the Services, you also agree to be bound by Google’s Terms of Service, which can be found here: https://www.google.com/policies/terms/
4. User Registration. In order to access and use the Services, we may require that you register for the applicable Services and have a unique username and password combination (“User Credentials”) and provide certain additional information, which may include, without limitation, your email address, legal name, date of birth, country of residence, zip code, mobile phone number, etc., and, for fee-based transactions and purchases (e.g., subscriptions, one-time purchases, add-ons, additional features, upgrades, games, etc.) offered by us, your physical address, telephone number(s), applicable payment data and information (e.g., credit card/debit card number and expiration date), etc. (collectively, a “User Account”). You represent and warrant that all registration and account information you submit is truthful and accurate and you shall maintain and promptly update the accuracy of such information. You may only have one User Account and are responsible for maintaining the strict confidentiality of your User Credentials, and you shall be responsible and liable for any access to or use of the Services by you or any person or entity using your User Credentials or Device, whether or not such access or use has been authorized by you or on your behalf, and whether or not such person or entity is your employee or agent, including, without limitation, any fee-based transactions. It is therefore critical that you do not share your User Credentials with anyone. You agree to immediately notify 18Birdies of any unauthorized use of your User Credentials, User Account and/or Device, or any other breach of security, including, without limitation, in the event your Device is lost or stolen. It is your sole responsibility to (a) control the dissemination and use of your User Credentials, User Account and Device, (b) update, maintain and control access to your User Credentials, User Account and Device, and (c) cancel your User Account on the Services. We reserve the right to deny access, use and registration privileges to any User of the Services if we believe there is a question about the identity of the person trying to access any account or element of the Services. 18Birdies shall not be responsible or liable for any loss or damage arising from your failure to comply with this Section 4.
5. Auto-Renewal. You acknowledge, understand and agree that after enrolling as an 18Birdies Premium Member you will gain access to such service for 1 month for $4.99 per month or 1 year for $44.99 per year, depending on the subscription option you select (such prices being subject to adjustment in the sole discretion of 18Birdies). Payment will be charged to your iTunes Account or Google Play Account (or any other Third Party Platform accounts) at confirmation of purchase when applicable. You acknowledge, understand and agree that your subscription will automatically renew unless auto-renew is turned off at least twenty-four (24) hours before the end of the current period, as your account will be charged within that period of time. Subscriptions may be managed by the user, and auto-renewal may be turned off by going to your iTunes or other account settings after purchase. 18Birdies Premium Membership includes a free trial period, which precedes any payment through iTunes or Google Play membership. During the free trial, users may deactivate a subscription without being charged. Any unused portion of a free trial period will be forfeited when the user purchases a subscription to that publication, where applicable.
7. Disclosure of User Status and Activity Information. In order to access and use the Services, you expressly acknowledge, understand and agree that the Services will automatically store, host, share, post, disseminate, disclose and/or publish certain information concerning your user account and profile (e.g., name, avatar/image, handicap, honors, achievements, user page details, etc.) and your corresponding use of the Services and related conduct, information and activities associated therewith (e.g., golf rounds played and related dates and times, golf scores, location, home courses, status updates, handicap and User Postings) in connection with the Services (collectively, "Status and Activity Information"). Status and Activity Information will be visible to all Users of the Services (e.g., on golf leaderboards, your account page/profile, post and feed sections, etc.), including those Users whom you have elected to follow and all other Users of the Services that you have not friended, not elected to follow and/or have no relationship with. Accordingly, you expressly acknowledge, understand and agree that (a) all Status and Activity Information is public and may be globally viewed by all Users of the Services and (b) you have no expectation of privacy in any Status and Activity Information and (c) no confidential, fiduciary, contractually implied or other relationship is created between you and 18Birdies by reason of your Status and Activity Information being made available in any area of or in connection with the Services. We may, from time to time, make certain settings available to limit the sharing, availability or public nature of certain specific Status and Activity Information, and if we do elect to do so and you properly designate your preferences using such settings, then we will honor the choices you make about who can see certain specific Status and Activity Information (e.g., the accessibility and sharing of certain information only with your friends, as opposed to all Users of the Services, etc.). For purposes of clarity, the term “User Posting” (as defined herein) shall include Status and Activity Information.
9. Location-Based Content and Push Notifications. The Services may allow access to, or make available opportunities for you to view, and/or receive, certain content, products, services, information and other materials based, in whole or in part, upon your location (“Located Content”). In order to make Located Content available to you, the Services will determine your location using one or more points of data, reference and/or information associated with, among other things, your Device, including, without limitation, GPS, beacons, device software/features/services and other points of data, reference and information. If you have set your Device to disable GPS, Bluetooth, WiFi or other location determining or assisting software, features or services, or do not authorize the Services to access your location data, the Services may not be able to determine your location and you may not be able to access, view and/or receive Located Content. In addition, the Services may make use of push notifications to provide alerts, notifications, notices and other information, whether in connection with any access to and/or use of Located Content or any other content, products, services, information and other materials, and, as part of your use of the Services, you may be asked to accept or deny push notifications and/or other similar alerts depending upon your Device and its corresponding settings, parameters, features and functionalities. If you reject, deny or disable push notification or similar functionality, then you will not receive any push notifications and may not be provided with access to Located Content and/or other features and functionalities of the Services. If you accept push notification or similar functionality, push notifications will be automatically sent to you. If you no longer wish to receive push notifications on your Device from the Services, then you must disable same by using the settings on your Device.
11. Proprietary Rights.
11.1 Ownership. As between you and 18Birdies, 18Birdies owns, solely and exclusively, all right, title and interest in and to the Services and all content contained and/or made available on, through or in connection therewith (“Content”), and all such Content is protected, without limitation, under U.S. Federal and State, as well as applicable foreign laws, rules, regulations and treaties. The term “Content” includes, without limitation, all audio/visual content, artwork, photographs, illustrations, graphics, logos, copy, text, computer code, software, music (including the musical compositions therein), data, user interfaces, visual interfaces, information, materials, and all copyrightable or otherwise legally protectable elements of the Services, including, without limitation, the design, selection, sequence, look and feel, and arrangement of the Services, and any copyrights, trademarks, service marks, trade names, trade dress, patent rights, database rights and/or other intellectual property and/or proprietary rights therein (including with respect to any content contained and/or made available in any advertisements or information presented to you via the Services). Unless the context clearly requires otherwise or we explicitly set forth in writing, the term “Services” includes “Content” as well.
11.2 Restrictions. The Services are to be used solely for your non-exclusive, non-assignable, non-transferable and limited personal use and for no other purposes, except where transfer is permitted. You must not alter, delete or conceal any copyright, trademark, service mark or other notices contained on the Services, including, without limitation, notices on any Content you transmit, download, display, print, stream or reproduce from the Services. Except as expressly authorized by 18Birdies and set forth in Additional Terms (e.g., Services that allow for the use of embeddable or viral features, applications, etc.), you shall not, nor shall you allow any third party (whether or not for your benefit or otherwise) to, reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third party website or platform), or otherwise use, any Content without the express, prior written consent of 18Birdies or its owner if 18Birdies is not the owner. Moreover, the framing or scraping of or inline linking to the Services or any Content contained thereon and/or the use of webcrawler, spidering or other automated means to access, copy, index, process and/or store any Content made available on or through the Services other than as expressly authorized by us is writing in advance is prohibited. You further agree to abide by exclusionary protocols (e.g., Robot.txt, Automated Content Access Protocol (ACAP), etc.) used in connection with the Services. Any unauthorized or prohibited use of any Content may subject you to civil liability, criminal prosecution, or both, under applicable federal, state, local laws, or applicable foreign laws, rules, regulations and treaties. We require Users to respect our copyrights, trademarks, and other intellectual property rights and shall aggressively enforce same to the fullest extent of the law, including, without limitation, seeking criminal prosecution. We likewise respect the intellectual property of others. If you believe that the Services contain elements that infringe your copyrights in your work, please follow the procedures set forth in Section 13 below.
12. User Conduct. You are solely responsible for your conduct in connection with the Services. We want to keep the Services safe and enjoyable for everyone and the use of the Services for unlawful or harmful activities is not allowed. You represent, warrant and agree that, while using the Services, you shall not:
(a) intentionally or unintentionally engage in or encourage conduct that would violate any applicable local, state, national or international law, rule, regulation, judicial or government order or treaty or give rise to civil liability or violate or infringe upon any intellectual property, proprietary, privacy, moral, publicity or other rights of ours or of any other person or entity;
(b) submit, post, email, display, transmit or otherwise make available on, through or in connection with the Services any material or take any action that is or is likely to be unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or publicity rights, harassing, profane, obscene, vulgar or that contains explicit or graphic imagery, descriptions or accounts of excessive violence or sexual acts (including, without limitation, sexual language of a violent or threatening nature directed at another individual or group of individuals), contains a link to an adult website or is patently offensive, promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
(c) submit, post, email, display, transmit or otherwise make available on, through or in connection with the Services any material that you do not have a right to make available under any law, rule or regulation or under contractual or fiduciary relationships (such as inside information, proprietary or confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), or otherwise creates a security or privacy risk for any other person or entity;
(d) intentionally or unintentionally engage in or encourage conduct that affects adversely or reflect negatively on 18Birdies or its affiliates, or any of their respective successors and assigns, directors, officers, employees, representatives, agents, licensors, advertisers, suppliers, operators or service providers, the Services, our goodwill, name or reputation or causes duress, distress or discomfort to us or anyone else, or discourages any person or entity from using all or any portion, features or functions of the Services, or from advertising, linking or becoming a supplier to us in connection with the Services;
(e) submit, post, email, display, transmit or otherwise make available on, through or in connection with the Services any material that contains a software virus, worm, spyware, Trojan horse or other computer code, file or program designed to interrupt, impair, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(f) use the Services for commercial or business purposes, including, without limitation, engaging in barter arrangements, pyramid schemes, advertising, marketing or offering goods or services or exploiting information or material obtained on, through or in connection with the Services, whether or not for financial or any other form of compensation or through linking with another website or web page;
(g) modify, disrupt, impair, alter or interfere with the use, features, function, operation or maintenance of the Services or the rights or use or enjoyment of the Services by any other User;
(h) impersonate any person or entity, including, without limitation, a 18Birdies official, or falsely state or otherwise represent your affiliation with a person, entity or User Posting (as defined herein), transmit or otherwise make available on, through or in connection with the Services false or misleading indications of origin, information or statements of fact;
(i) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted on, through or in connection with the Services, including User Postings (as defined herein);
(j) solicit passwords or personal identifying information for commercial or unlawful purposes from other Users or engage in spamming, flooding, harvesting of email addresses or other personal information, “spidering”, “screen scraping”, “phishing”, “database scraping”, or any other activity with the purposes of obtaining lists of Users or other information;
(k) modify, reverse engineer, decompile or disassemble any part of the Services, whether in whole or in part, or create any derivative works from any part of the Services, or encourage, assist or authorize any other person to do so; or
(l) intentionally or unintentionally submit, post, email, display, transmit, disseminate, report or otherwise make available on, through or in connection with the Services any false, incorrect, misleading, fraudulent, exaggerated or inaccurate data or information, including, without limitation, as it pertains to any golf-related conduct, activities, achievements, initiatives, promotions, and/or opportunities (e.g., golf rounds played, scores obtained, participating golfers, etc.).
(m) sell, gift, trade, or otherwise transfer any virtual currency associated with your User Account, including Golf Bucks, to anyone;
(n) use the Services in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country;
(o) use the services if you are on any U.S. Government list of prohibited or restricted parties;
(p) comply with all third-party terms of agreement when using the Services;
(q) consent to serve as the third-party beneficiary of any applicable third-party terms of agreement bearing on the Services;
(r) bear the cost of taxes associated with your purchase of the Services even if you return such purchase.
18Birdies reserves the right to investigate and take appropriate legal action against anyone who, in 18Birdies’s sole discretion, violates, or is suspected of violating, this Section 11, including, without limitation, reporting you to law enforcement authorities. Further, you acknowledge, consent and agree that 18Birdies may access, preserve and disclose your account and registration information and any other content or information if required to do so by law or if based on a good faith belief that such access, preservation or disclosure is reasonably necessary to (i) comply with the legal process; (ii) enforce this Agreement; (iii) respond to claims that any content or information violates the rights of any third party; (iv) respond to your requests for customer or technical service; or (v) protect the rights, property or personal safety of 18Birdies, Users or any third parties. 18Birdies also reserves the right to remove the Services from Third Party Platforms, which would limit your ability to re-download the Services.
13. User Postings.
13.1 Defined; Acknowledgements. The Services may provide you and other Users with an opportunity to participate in feeds, forums, communities and other message, comment and communication features and functionalities and may provide you with the opportunity to submit, post, email, display, transmit or otherwise make available comments, reviews, links, materials, ideas, opinions, messages, user information and other information via the Services (each, a “User Posting”, and collectively, “User Postings”). When you submit User Postings you may also be asked to provide information about you and your submission. This may include, without limitation, such things as your User Credentials, a descriptive title, information about the User Posting, your location and/or similar information. By submitting User Postings, you acknowledge and agree that the term “User Posting” also includes, without limitation, and refers to all of the information you submit or we may receive that is related to your User Posting. You further acknowledge and agree that all User Postings made by means of or in connection with any portion of the Services are public and that (a) you have no expectation of privacy in any User Posting and (b) no confidential, fiduciary, contractually implied or other relationship is created between you and 18Birdies by reason of your transmitting a User Posting to any area of or in connection with the Services.
13.2 Responsibility; Liability. You understand, acknowledge and agree that all User Postings are the sole responsibility of the person from which such User Postings originated. This means that you are solely and entirely responsible for the consequences of all User Postings that you submit, upload, post, email, display, transmit or otherwise make available. User Postings do not reflect the views of 18Birdies, its affiliates or any of their respective successors and assigns, directors, officers, employees, representatives or agents, and you understand that by using the Services, you may be exposed to other people’s User Postings that could be offensive, indecent or objectionable and, as such, 18Birdies does not guarantee the accuracy, integrity, quality or content of any User Postings. Under no circumstances shall 18Birdies be liable in any way for User Postings, including, without limitation, errors or omissions in any User Postings, or any loss or damage of any kind incurred as a result of any User Postings submitted, uploaded, posted, emailed, displayed, transmitted or otherwise made available.
13.3 Usage; Restrictions. The Services, including, without limitation, all User Posting features and functionality, is for personal purposes only and you may not submit, post, email, display, transmit or otherwise make available, in any manner, any User Posting that we deem to be an Unauthorized Posting (as defined herein). We have the right, but not the obligation, to review any User Posting and to delete, remove, move, edit or reject, without notice to you, for any reason or for no reason whatsoever, any User Postings, including, without limitation, any Unauthorized Postings; provided, however, that 18Birdies shall have no obligation or liability to you or any third party for failure to do so or for doing so in any particular manner. As used herein, the term “Unauthorized Posting” means any User Posting that is or may be construed as violating this Agreement, including, without limitation, Section 11 herein, or is deemed to be unacceptable to 18Birdies or affiliates for any reason, as determined in 18Birdies’s sole discretion.
13.4 License; Usage. In connection with all User Postings you submit, post, email, display, transmit or otherwise make available, you grant to 18Birdies the unqualified, unrestricted, unconditional, unlimited, worldwide, non-exclusive, irrevocable, perpetual and royalty-free right, license, authorization and permission, in any form or format, on or through any media or medium and with any technology or devices now known or hereafter developed or discovered, in whole or in part, to host, cache, store, maintain, use, reproduce, distribute, display, exhibit, perform, publish, broadcast, transmit, modify, prepare derivative works of, adapt, reformat, translate, and otherwise exploit all or any portion of your User Posting on the Services and any other websites, channels, services, and other distribution platforms, whether currently existing or developed in the future, for any purpose whatsoever (including, without limitation, for any promotional purposes) without accounting, notification, credit or other obligation to you, and the right to license and sub-license and authorize others to exercise any of the rights granted hereunder to 18Birdies, in our sole discretion. For the avoidance of doubt, the rights, licenses and privileges described in this Agreement and granted to 18Birdies shall commence immediately upon submission of your User Posting and shall continue thereafter perpetually and indefinitely, regardless of whether you use the Services as a registered User or not.
13.5 Rights; Representations. 18Birdies does not acquire any title or ownership rights in the User Postings that you submit and/or make available. After you submit, post, email, display, transmit or otherwise make available any User Posting, you continue to retain any such rights that you may have in such User Posting, subject to the rights, licenses and privileges granted herein. You also represent, warrant and covenant that (a) you own the User Posting posted by you or otherwise have the right to grant the rights, licenses and privileges described in this Agreement and to perform and comply with all of the requirements set forth herein; (b) your submission, uploading, posting, emailing, displaying, transmission and/or making available of User Postings does not violate this Agreement, any rights of any other party or entity, any of your obligations, any law, rule or regulation or infringe upon, misappropriate or violate any intellectual property, proprietary, privacy, moral, publicity or other rights of any party or entity; (c) you have the legal right and capability to enter into this Agreement and perform and comply with all of its terms and conditions; and (d) you hold and shall continue to hold all the ownership, license, proprietary and other rights necessary to enter into, authorize, grant rights and perform your obligations under this Agreement and shall pay for all royalties, fees, and any other monies owing to any person or entity by reason of your User Postings.
13.6 California Removal Rights. Registered Users of Services who are California residents and are under 18 years of age may request and obtain removal of User Postings located on the Services that they themselves post by emailing us at posting_removal@18Birdies.com. All requests must be labeled "California Removal Request" on the email subject line. All requests must provide a description of the content or information in your User Posting that you want removed and information reasonably sufficient to permit us to locate the material and, so that we can process your request and contact you if we have questions, include your registered username, name, street address, city, state, zip code and email address (your street address is optional if you wish to receive a response to your request via email), include the name and URL (if applicable) of the website, application or other interactive service and indicate your preference on how our response to your request should be sent (email or postal mail). We shall not accept requests via postal mail, telephone or facsimile. We are not responsible for notices that are not labeled or sent properly, or may not be able to respond if you do not provide complete information. We may also provide you the ability to remove individual specific User Postings that are comments by navigating to the comment, selecting the delete option when you hover over the right-hand side of the comment with your cursor and verifying the deletion request. Please also note that any requests for removal do not ensure complete or comprehensive removal of the Content or information from the Services. For example, content that you have posted may be republished or reposted by another User or third party.
14. Digital Millennium Copyright Act.
14.1 If you are a copyright owner or an agent thereof and believe that any content on the Services infringes upon your copyrights, your may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Agent (as set forth below) with the following information in writing (see 17 U.S.C. 512(c)(3) for further details):
· A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
· Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a representative list of such works on the Services;
· Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
· Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if applicable, e-mail address;
· A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
· A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Written notification of claimed infringement must be submitted to the following Designated Agent:
Name and Address of Designated Agent:
Attention: DMCA Copyright Agent
101 California Street, Suite 2710
San Francisco, CA 94111
Email Address of Designated Agent: copyright@18Birdies.com
For clarity, only DMCA notices should be sent to the Designated Agent and any other feedback, comments, requests for technical support, and other communications should be directed to 18Birdies customer service by sending an email to support@18Birdies.com. You acknowledge and agree that if you fail to comply with all of the requirements of this Section 13, your DMCA notice may not be valid.
14.2 If you believe that your content was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to applicable law, to make such content available to 18Birdies for use on the Services, you may send a counter-notice containing the following information to our Copyright Agent:
· Your physical or electronic signature;
· Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
· A statement that you have a good faith belief that the content was removed or disabled as a result of a mistake or a misidentification of the content; and
· Your name, address, telephone number, and, if applicable, e-mail address, and a statement that you shall accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by our Copyright Agent, 18Birdies may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider or the User, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at 18Birdies’s sole discretion.
15. Additional Terms and Requirements.
15.1 Availability. You acknowledge that 18Birdies licenses some or all of the Content under agreement from third parties, and that 18Birdies may add, delete or disable Content, and/or add, delete, disable or modify some or all of the Services, at its sole election, and you acknowledge: (a) that you may no longer be able to use the Services to the same extent, or at all, as prior to such change or discontinuation, and (b) that 18Birdies shall have no obligation or liability to you in such case. In no event shall 18Birdies be liable for the removal of or disabling of access to any Content, the Services, materials or any features or portions of the Services. 18Birdies may also impose limits on the use of or access to certain features or portions of the Content or the Services, in any case and without notice or liability to you. By way of example, and not limitation, not all Users of the Services, depending upon the User's geographic location, equipment, Device, and other factors, will have access to all Content and Services.
15.2 Device and Messaging Requirements and Terms. In order to access and use the Services and the Content, you will be required to use Device(s) and other technology meeting certain system, configuration and other requirements established by 18Birdies, its content partners, licensors and other third parties (e.g., storefront, network, website, platform and other operators, etc.) (collectively, “Operators”), and you are responsible for ensuring that your Device(s) and other technology meet all such requirements at all times. Additionally, the Services may provide you and other Users with the opportunity to use certain messaging and social networking features and functionality that allow you to send messages, content and communications to other Users of the Services, as well as other contacts and social networks outside of the Services (whether sent via email, instant message, SMS text or other means), and you acknowledge and agree that you may receive such messages from us and other Users of the Services as well. Certain wireless carrier and data access provider charges may apply to SMS messages and other messages sent to certain Devices received by you or received by the individual to whom you sent such messages. You expressly acknowledge and agree that you are solely responsible for any data access, messaging and other service rates and charges you may incur in connection with your Device and use of the Services.
15.3 Objectionable Material. You understand that by using the Services, you may encounter Content that may be deemed offensive, indecent, or objectionable by some, which Content may or may not be identified as such. Nevertheless, you agree to use the Services at your sole risk and that 18Birdies shall have no liability to you for Content that may be found to be offensive, indecent, or objectionable.
16. Payment, Pricing, and Related Terms of Service.
16.1 Fee-Based Services. We may make available certain fee-based transactions, content and other e-commerce services, including, without limitation, the ability to purchase goods and services, on and/or in connection with the Services (“Fee-Based Services”). For example, you may be able to order certain golf-related products, services and/or licenses through the Services, including, without limitation, additional Service features and functionality. Additional Terms may apply to your use of, access to and purchase of Fee-Based Services and such Additional Terms are incorporated herein by reference. You may only use the Fee-Based Services if, and you hereby represent, warrant and agree that (a) you are 18 years of age or older and a legal resident of U.S. and (b) you shall pay in full the prices and fees (including, without limitation, all applicable taxes (as more fully described below) for any purchases you, or anyone using the User Account registered to you, make via an Authorized Payment Method (as defined below).
16.2 Payment Method and Terms. The Services accept certain methods of payment which will be indicated at the time of purchase as forms of payment (each, an “Authorized Payment Method”), subject to certain restrictions, including, without limitation, territory restrictions, bank/payment card restrictions, spending limits, third party service provider restrictions or otherwise, which may prevent the processing of your order. If a transaction has been declined online due to payment card issues, please ensure all data is correct and resubmit. If the transaction is not accepted online, you will be unable to use that card for your transaction and should use another Authorized Payment Method. If a payment card company is being used for a transaction, 18Birdies may obtain a pre-approval from the applicable payment card company for an amount up to the amount of the order. All purchases are final once you click the “Submit” or similar button/link and billing to your payment card occurs at such time or shortly thereafter. If payment is not received by us from your credit, debit or charge card issuer or its agents or other payment service provider, you agree to promptly pay all amounts due upon demand by us. 18Birdies reserves the right to change any and all prices for any Services and other Content at any time, for any reason.
16.3 Taxes. You are responsible for any taxes imposed on any fee-based transactions conducted on or in connection with the Services and applicable taxes will be added to the amount charged for the applicable transaction. Fee-based transactions in connection with the Services may include, without limitation, sales tax, use tax and any other applicable taxes, which may be based on various factors, including, without limitation, the bill-to address and tax rates in effect at the time your transaction is completed. No customers or Users are eligible for tax exemptions for transactions made in connection with the Services.
16.4 Additional Terms and Conditions. 18Birdies may revise any or all of the fees and prices associated with the Fee-Based Services at any time for any or no reason. Further, 18Birdies does not guarantee that product descriptions or other content and products will be available, accurate, complete, reliable, current or errorfree. Descriptions and images of, and references to, products or services on or in connection with the Fee-Based Services do not imply 18Birdies's or any of its affiliates' endorsement of such products or services. Moreover, 18Birdies and its third party operational service providers reserve the right, with or without prior notice, for any or no reason, to change product descriptions, images, and references; to limit the available quantity of any product; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any User from conducting any or all transaction(s); and/or to refuse to provide any User with any product. Further, if 18Birdies terminates your use of or registration to the Services because you have breached this Agreement, you shall not be entitled to a refund of any unused portion of any fees, payments or other consideration.
16.5 Support. If you have a complaint or dispute about a certain charge, or about a certain feature or product made available on or in connection with the FeeBased Services, you must promptly notify 18Birdies customer service of such complaint or dispute by sending a detailed email to support@18Birdies.com.
16.6 THIRD PARTY PRODUCTS AND SERVICES. WE ARE NOT RESPONSIBLE AND HAVE NO LIABILITY WHATSOEVER FOR GOODS OR SERVICES YOU OBTAIN THROUGH THIRD PARTY SERVICE PROVIDERS OR OTHER WEB SITES, WEB PAGES, APPLICATIONS AND PLATFORMS (EVEN IF ACCESSED WITHIN, THROUGH OR IN CONNECTION WITH THE SERVICES), AND ANY SUCH PURCHASES ARE SUBJECT TO THEIR RESPECTIVE TERMS AND CONDITIONS OF USE. YOU ACKNOWLEDGE AND AGREE THAT PRODUCT/SERVICE SPECIFICATIONS AND OTHER INFORMATION HAVE EITHER BEEN PROVIDED BY THE APPLICABLE THIRD PARTY VENDORS OR COLLECTED FROM PUBLICLY AVAILABLE SOURCES AND WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY OR RELIABILITY OF ANY SUCH INFORMATION. ACCORDINGLY WE ENCOURAGE YOU TO MAKE WHATEVER INVESTIGATION YOU FEEL NECESSARY OR APPROPRIATE BEFORE PROCEEDING WITH ANY TRANSACTION WITH ANY OF THESE THIRD PARTIES AS SAME IS CONDUCTED AT YOUR SOLE RISK. FURTHER, WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE SECURITY OF ANY INFORMATION (INCLUDING, WITHOUT LIMITATION, CREDIT CARD AND OTHER PERSONAL INFORMATION) YOU MIGHT BE REQUESTED TO GIVE ANY SUCH THIRD PARTY, AND YOU IRREVOCABLY WAIVE ANY CLAIM AGAINST US OR OUR AFFILIATES WITH RESPECT TO ANY SUCH TRANSACTION. WE ARE NOT RESPONSIBLE FOR ASSISTING YOU IN CORRECTING ANY PROBLEM YOU MAY EXPERIENCE WITH GOODS AND SERVICES PURCHASED THROUGH A THIRD PARTY SERVICE PROVIDER, EVEN IF THE GOODS OR SERVICES ARE ACCESSED WITHIN, THROUGH OR IN CONNECTION WITH THE SERVICES. WE CANNOT ENSURE THAT YOU WILL BE SATISFIED WITH ANY PRODUCTS OR SERVICES THAT YOU PURCHASE FROM ANY THIRDPARTY OPERATIONAL SERVICE PROVIDER AS THOSE ARE OWNED AND OPERATED BY INDEPENDENT ENTITIES. CUSTOMER SERVICE ISSUES RELATED TO GOODS OR SERVICES SHOULD BE DIRECTED TO THE RELEVANT THIRD PARTY OPERATIONAL SERVICE PROVIDER.
17. Customer Support. For assistance with technical issues or order inquiries, please refer to our online support page at https://18birdies.com/faqs/help.html or contact support@18Birdies.com.
19. Advertisements. From time to time, you may choose to communicate with, interact with, or obtain Third Party Services from our advertisers, sponsors or other promotional partners (collectively, “Advertisers”) found on or through the Services or via a hyperlinked website or platform. All such communication, interaction and participation is strictly and solely between you and such Advertisers and we shall not be responsible or liable to you in any way in connection with these activities or transactions (including, without limitation, any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the Advertisers or any goods or services you may purchase or obtain from any Advertiser).
19. Promotions, Contests, Sweepstakes and Privilege Programs.
20.1 Promotions. From time to time, 18Birdies, or the Services' operational service providers, suppliers, Operators, and Advertisers, including golf courses utilizing the Services, may conduct promotions and other activities on, through or in connection with the Services, including, without limitation, contests, sweepstakes and privilege programs (collectively, "Promotions"). Each Promotion may have Additional Terms and/or Rules which shall be posted or otherwise made available to you in connection therewith. With respect to any golf course privilege program offered on, through or in connection with the Services, you hereby acknowledge and agree that your participation in, access to, use of and engagement in any activity in connection with such a privilege program in connection with the Services shall be subject to the terms and conditions of this Agreement, including all grants of rights, limitations of liability, disclaimers, indemnities and other terms and conditions.
20.2 Golf Bucks. Users may accrue virtual currency known as Golf Bucks and associate Golf Bucks with their User Accounts. Golf Bucks have no monetary value and have no value outside of the Services. Golf Bucks may only be redeemed on the Services for limited purposes, including but not limited to entries for certain Promotions. Refer to the terms and conditions for each Promotion for further details on Golf Bucks redemption. Golf Bucks do not expire. You may not sell Golf Bucks in exchange for real money or exchange those items for value outside of the Services. Golf Bucks remain the property of 18Birdies and 18Birdies reserves the right to manage, regulate, control, modify or eliminate Golf Bucks at its own discretion. 18Birdies will not be liable to you or required to provide refunds, benefits, or other compensation in connection with unredeemed Golf Bucks. If your Account is terminated for any reason, you may lose all Golf Bucks associated with your User Account.
21. Assignment. This Agreement, and any rights, licenses and privileges granted herein, may not be transferred or assigned by you, but may be assigned or transferred by 18Birdies without restriction, notice or other obligation to you.
22. Indemnity. You agree to defend, indemnify and hold 18Birdies and its affiliates, and their respective successors and assigns, directors, officers, employees, representatives, agents, licensors, Advertisers, Operators, suppliers and service providers harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) (collectively, “Claims”), arising in any way out of or in connection with (a) your use of the Services, (b) your breach or violation this Agreement or (c) your User Postings. 18Birdies reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with 18Birdies’s defense of such Claim.
23. DISCLAIMER AND LIMITATIONS OF LIABILITY. THE SERVICES, AND ALL CONTENT, PRODUCTS, SERVICES AND USER POSTINGS MADE AVAILABLE ON, THROUGH OR IN CONNECTION THEREWITH, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, OR ANY GUARANTY OR ASSURANCE THE SERVICES WILL BE AVAILABLE FOR USE, OR THAT ANY PRODUCTS, FEATURES, FUNCTIONS, SERVICES OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED. ALL IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS RELATING TO THE SERVICES AND THIS SITE, AND ALL CONTENT, PRODUCTS, SERVICES AND USER POSTINGS ARE HEREBY DISCLAIMED. Without limiting the foregoing, we are not responsible or liable for any malicious code, delays, inaccuracies, errors, or omissions arising out of your use of the Services. You understand, acknowledge and agree that you are assuming the entire risk as to the quality, accuracy, performance, timeliness, adequacy, completeness, correctness, authenticity, security and validity of any and all features and functions of the Services, including, without limitation, User Postings and Content associated with your use of the Services.
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, 18Birdies, ITS AFFILIATES, SUCCESSORS AND ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OPERATORS, SERVICE PROVIDERS, ADVERTISERS AND SUPPLIERS, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, OF ANY KIND, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING FROM USE OF THE SERVICES OR FROM THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES.
You further understand and acknowledge the capacity of the Services, in the aggregate and for each User, is limited. Consequently, some messages and transmissions, including, without limitation, User Postings, may not be processed in a timely fashion or at all, and some features or functions may be restricted or delayed or become completely inoperable. As a result, you acknowledge and agree that 18Birdies assumes no liability, responsibility or obligation to transmit, process, store, receive or deliver transactions or User Postings or for any failure or delay associated with any User Postings and you are hereby expressly advised not to rely upon the timeliness or performance of the Services for any transactions or User Postings. Some jurisdictions do not allow for the exclusion of certain warranties or certain limitations on damages and remedies, accordingly some of the exclusions and limitations described in this Agreement may not apply to you.
24. Governing Law; Miscellaneous.
24.1 This Agreement contains the entire understanding and agreement between you and 18Birdies concerning the Services and supersedes any and all prior or inconsistent understandings relating to the Services and your use thereof. This Agreement cannot be changed or terminated orally. If any provision of this Agreement is held to be illegal, invalid or unenforceable, this shall not affect any other provisions and this Agreement shall be deemed amended to the extent necessary to make it legal, valid and enforceable. Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of this Agreement; however, no action arising out of this Agreement or your use of the Services, regardless of form or the basis of the claim, may be brought by you more than one year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose). The failure of 18Birdies to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision.
24.2 This Agreement and your use of the Services is governed by, construed and enforced in accordance with the internal substantive laws of the State of New York (notwithstanding the State's conflict of laws provisions) applicable to contracts made, executed and wholly performed in New York, and, for the purposes of any and all legal or equitable actions, you specifically agree and submit to the exclusive jurisdiction and venue of the State and Federal Courts situated in the State and County of New York and agree you shall not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non conveniens or otherwise. IN ANY ACTION OR PROCEEDING COMMENCED TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THIS AGREEMENT, YOUR USE OF THE SERVICES OR WITH RESPECT TO THE SUBJECT MATTER HEREOF, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.
24.3 You and 18Birdies further agree that the resolution of any disputes, claims or actions arising hereunder, including, without limitation, in connection with any use of the Services, shall be conducted in each of your individual capacities only and not as a class action or other representative action, and such parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND 18Birdies AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
24.4 The Services are controlled and operated by 18Birdies entirely from its offices in the U.S. and 18Birdies makes no representation or warranty that the Services or Content contained on or made available in connection therewith is legal, appropriate or available for use in other locations. Those who choose to access the Services from other locations do so at their own risk and are responsible for compliance with any and all local laws, rules and regulation, if and to the extent local laws, rules and regulations are applicable. No software made available in connection with the Services may be downloaded, exported or reexported into (or to a national or resident of) any countries that are subject to U.S. export restrictions.
This Agreement was last modified on the date indicated above and is effective immediately.
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