11. Use of Software. 11.1 Software made available via the Services or through third-party marketplaces or stores is governed by the terms of the applicable Additional Terms or the license agreement referenced in the Software. If there is any conflict between these Terms and the license agreement provided with such Software, then the license agreement shall take precedence in relation to that Software. If the Software is a pre-release version, then you are not permitted to use or otherwise rely on the Software for any commercial or production purposes, notwithstanding anything to the contrary included within an accompanying license agreement. 11.2 1Mark Golf Scoring may provide mobile and tablet applications through third parties that interact with the Service and 1Mark Golf Scoring products. You are responsible for obtaining and maintaining any equipment or ancillary services needed to access mobile and tablet applications and you are responsible for all applicable taxes and fees incurred while accessing such applications (such as fees from your mobile carrier, overage charges, etc.) 11.3 If no license agreement accompanies the Software that is available for download, the download and use of such Software will be governed by the terms of this Section 11.3. 1Mark Golf Scoring grants you a personal, worldwide, revocable, limited, non-transferable, non-sublicensable, non-assignable, nonexclusive license to use the Software in the manner permitted by the Terms. For clarification, you shall not distribute, lease, rent, sell, or sublicense the Software. You agree that you will not decompile, reverse engineer, or otherwise attempt to discover the source code of the Software. Notwithstanding the foregoing, decompiling the Software is permitted to the extent the laws of the jurisdiction where you are located give you the right to do so to obtain information necessary to render the Software interoperable with other software, provided, however, that you must first request the information from 1Mark Golf Scoring and 1Mark Golf Scoring may, in its discretion, either provide such information to you or impose reasonable conditions, including reasonable fees, on use of the Software to ensure that 1Mark Golf Scoring’s Intellectual Property Rights in the Software are protected. You may not assign (or grant a sublicense of) your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software. For clarity, your use of the Software is also subject to the disclaimers and limitations in Sections 13 and 14 below and your compliance with the export control provisions of Section 22. 11.4 The Software may automatically download and install updates from 1Mark Golf Scoring. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new Software modules, and completely new versions. You agree to receive such updates (and permit 1Mark Golf Scoring to deliver these to you with or without your knowledge) as part of your use of the Services. 12. Your Warranty, Indemnification Obligation, and Waiver. 12.1 You represent and warrant that: (a) you own the Intellectual Property Rights, or have obtained all necessary license(s) and permission(s), to use Your Material in keeping with your use in connection with the Services or as otherwise permitted by the Terms; (b) you have the rights necessary to grant the license and sublicenses described in the Terms; (c) you have received consent from any and all persons depicted in Your Material to use Your Material as set forth in the Terms, including distribution, public display, public performance, and reproduction of Your Material; and (d) Your Material does not violate or infringe any intellectual property right or other proprietary right, including right of publicity or privacy, of any person, company or entity, or other third party. 12.2 You agree to indemnify and hold 1Mark Golf Scoring and its subsidiaries, affiliates, officers, agents, employees, co-branders or other partners, and licensors harmless from any claim or demand, including reasonable attorneys’ fees, due to or arising out of Your Material, your use of the Services or Materials, your connection to the Services or Materials, your use and access of personal information of other Users, the actions of any member of your group, your access to or use of Sites or the Linked Sites and your connections therewith, any claim that Your Material caused damage to someone else, any dealings between you and anyone else advertising or promoting via the Services or Materials, your violation of the Terms, or your violation of any rights of another, including any Intellectual Property Rights. 12.3 You acknowledge and agree that by accessing or using the Services or Materials, you may be exposed to Materials (including Shared Group Material) from others that you may consider offensive, indecent, or otherwise objectionable, and agree to accept that risk. 13. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: 13.1 THE SITE, SERVICES, AND MATERIALS ARE PROVIDED BY 1MARK GOLF SCORING “AS IS,” WITHOUT WARRANTY OF ANY KJND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, 1MARK GOLF SCORING AND ITS LICENSORS MAKE NO WARRANTY THAT (a) THE SITE, SERVICES OR MATERIALS WILL MEET YOUR REQUIREMENTS OR WILL BE CONSTANTLY AVAILABLE, UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (b) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE, SERVICES, OR MATERIALS WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; (c) THE QUALITY OF THE SITE, SERVICES, OR MATERIALS WILL MEET YOUR EXPECTATIONS; OR THAT (d) ANY ERRORS OR DEFECTS IN THE SITE, SERVICES, OR MATERIALS W ILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM 1MARK GOLF SCORING OR THROUGH OR FROM USE OF THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS. 13.2 1MARK GOLF SCORING SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR USE OF OR PARTICIPATION IN ANY SERVICES AND YOUR USE OF MATERIALS. ANY MATERIAL DOWNLOADED, MADE AVAILABLE, OR OTHERWISE OBTAINED THROUGH USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. 1MARK GOLF SCORING ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR SIMILAR CODE THAT IS DOWNLOADED TO YOUR COMPUTER FROM ANY OF THE SERVICES. 13.3 1MARK GOLF SCORING DOES NOT CONTROL, ENDORSE, OR ACCEPT RESPONSIBILITY FOR ANY MATERIALS OR SERVICES OFFERED BY THIRD PARTIES ACCESSIBLE THROUGH LINKED SITES. 1MARK GOLF SCORING MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER ABOUT, AND SHALL NOT BE LIABLE FOR, ANY SUCH THIRD PARTIES, THEIR MATERlALS OR SERVICES. ANY DEALINGS THAT YOU MAY HAVE WITH SUCH THIRD PARTIES ARE AT YOUR O WN RISK. 13.4 MANAGERS, HOSTS, PARTICIPANTS, MODERATORS, AND OTHER THIRD PARTIES ARE NOT AUTHORlZED 1MARK GOLF SCORING SPOKESPERSONS, AND THEIR V IEWS DO NOT NECESSARlLY REFLECT THOSE OF 1MARK GOLF SCORING. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 1MARK GOLF SCORING WILL HAVE NO LIABILITY RELATED TO USER MATERIAL ARISING UNDER INTELLECTUAL PROPERTY RIGHTS, LIBEL, PRIVACY, PUBLICITY, OBSCENITY, OR OTHER LAWS. 1MARK GOLF SCORING ALSO DISCLAIMS ALL LIABILITY WITH RESPECT TO THE USE, MISUSE, LOSS, MODIFICATION, OR UNAVAlLABILITY OF ANY USER MATERIAL. 13.5 1MARK GOLF SCORING WILL NOT BE LIABLE FOR ANY LOSS THAT YOU MAY INCUR AS A RESULT OF SOMEONE ELSE USING YOUR PASSWORD OR ACCOUNT OR ACCOUNT INFORMATION IN CONNECTION WITH THE SITE OR ANY SERVICES OR MATERIALS, EITHER WITH OR WITHOUT YOUR KNOWLEDGE. 13.6 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. 14. Limitation of Liability. 14.1 IN NO EVENT SHALL 1MARK GOLF SCORING, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING THOSE RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT FORESEEABLE OR IF 1MARK GOLF SCORING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR BASED ON ANY THEORY OF LIABILITY, INCLUDING B REACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORTIOUS ACTION, OR ANY OTHER CLAIM ARlSING OUT OF OR IN CONNECTION WITH YOUR USE OF OR ACCESS TO THE SITE, SERVICES OR MATERIALS. NOTHING IN THE TERMS SHALL LIMIT OR EXCLUDE 1MARK GOLF SCORING’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF 1MARK GOLF SCORING OR ITS EMPLOYEES, OR FOR DEATH OR PERSONAL INJURY. 14.2 1MARK GOLF SCORING’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, LICENSORS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO US $100 OR THE AGGREGATE AMOUNT PAID BY YOU FOR ACCESS TO THE SERVICE DURING THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, WHICHEVER IS LARGER. THIS LIMITATION WILL APPLY EVEN IF 1MARK GOLF SCORING HAS B EEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 1 4.3 THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 14 APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES. ACCORDINGLY, THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. 15. Investigations. 15.1 1Mark Golf Scoring, in its sole discretion, may (but has no obligation to) monitor or review the Services and Materials at any time. Without limiting the foregoing, 1Mark Golf Scoring shall have the right, in its sole discretion, to remove any of Your Material for any reason (or no reason), including if it violates the Terms or any Law. 15.2 Although 1Mark Golf Scoring does not generally monitor User activity occurring in connection with the Services or Materials, if 1Mark Golf Scoring becomes aware of any possible violations by you of any provision of the Terms, 1Mark Golf Scoring reserves the right to investigate such violations, and 1Mark Golf Scoring may, at its sole discretion, immediately terminate your rights hereunder, including your right to use the Services or Materials, or change, alter, or remove Your Material or Account Information, in whole or in part, without prior notice to you. If, as a result of such investigation, 1Mark Golf Scoring believes that criminal activity has occurred, 1Mark Golf Scoring reserves the right to refer the matter to, and to cooperate with, any and all applicable law enforcement authorities. Except to the extent prohibited by applicable Law, 1Mark Golf Scoring is entitled to retain and/or disclose any information or Materials, including Your Material or Account Information (or elements thereof), in 1Mark Golf Scoring’s possession in connection with your use of the Services to (a) comply with applicable Law, legal process, or governmental request; (b) enforce the Terms; (c) respond to any claims that Your Material violates the Terms or rights of third parties; (d) respond to your requests for customer services; or (e) protect the rights, property or personal safety of 1Mark Golf Scoring, its Users, or third parties, including the public at large, as 1Mark Golf Scoring in its sole discretion believes to be necessary or appropriate. 16. Feedback. You have no obligation to provide 1Mark Golf Scoring with ideas, suggestions or proposals ( ‘Feedback”). However, if you submit Feedback to 1Mark Golf Scoring, we may use it for any purpose without compensation to you. 17. Notification of Copyright Infringement. 17.1 1Mark Golf Scoring respects the Intellectual Property Rights of others and expects its Users to do the same. 1Mark Golf Scoring will respond to clear notices of copyright infringement consistent with the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) (“DMCA”) and its response to such notices may include removing or disabling access to the allegedly infringing Materials, terminating the accounts of repeat infringers, and/or making good-faith attempts to contact the User who posted the Material(s) at issue so that he may, where appropriate, make a counter-notification. 17.2 If you believe that your work has been used or copied in a way that constitutes copyright infringement and such infringement is hosted on the Services, on websites linked to or from the Services, or in connection with the Services or Materials, please provide, pursuant to the DMCA, written notification via regular mail or via fax (not via email or phone) of claimed copyright infringement to 1Mark Golf Scoring’s Copyright Agent (contact information below), which must contain all of the following elements: (a) A physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest that is alleged to have been infringed; (b) A description of the copyrighted work(s) that you claim have been infringed and identification of what Material in such work(s) is claimed to be infringing and which you request to be removed or access to which is to be disabled; (c) A description of where the Material that you claim is infringing is located on the Services; (d) Information sufficient to permit 1Mark Golf Scoring to contact you, such as your physical address, telephone number, and email address; (e) A statement by you that you have a good faith belief that the use of the Material identified in your notice in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) A statement by you that the information in your notice is accurate and, under penalty of perjury that you are the copyright owner or are authorized to act on the copyright owner’s behalf. Before you file such a notification, please carefully consider whether or not the use of copyrighted material at issue is protected by the “fair use” doctrine, as you could be liable for costs and attorneys’ fees should you file a takedown notice where there is no infringing use. If you are unsure whether a use of your copyrighted material constitutes infringement, please contact an attorney. In addition, you may wish to consult publicly available reference materials such as those found at www.chillingeffects.org. 17.3 If you believe access to your Material was disabled or removed by 1Mark Golf Scoring as a result of an improper copyright infringement notice, please provide, pursuant to the DMCA, written notification via regular mail or via fax (not via email or phone) to 1Mark Golf Scoring’s Copyright Agent (contact information below), which must contain all of the following elements: (a) A physical or electronic signature of the subscriber; (b) Identification of the material that was removed from the Services and the location of the Service on which the material appeared before it was removed; (c) A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; (d) Information sufficient to permit 1Mark Golf Scoring to contact you, such as your physical address, telephone number, and email address; and (e) A statement that you consent to jurisdiction of the Federal District court for the district where you reside (or of Santa Clara County, California if you reside outside of the United Sates) and that you will accept service of process from the person who provided notification under DMCA subsection (c)(1)(C) or an agent of such person. Before you file such a counter-notification, please carefully consider whether or not the use of the copyrighted material at issue is infringing, as you could be liable for costs and attorneys’ fees in the event that a court determines your counter-notification misrepresented that the material was removed by mistake. If you are unsure whether use of the material at issue constitutes infringement, please contact an attorney. In addition, you may wish to consult publicly available reference materials such as those found at www.chillingeffects.org. 17.4 1Mark Golf Scoring’s Copyright Agent for notice of claims of copyright infringement can be reached as follows: By mail: copyright@1markscoring.com Copyright Agent 1Mark Golf Scoring (Pty) Ltd I Business Unit 7, 1143 Woodhill Drive, Woodhill Residential & Country Estate, Pretoria, 0043, South Africa By email: copyright@1Markscoring.com By telephone: (+27) 79 872 9714 Fax: (+27) 82 785 8254 The Copyright Agent will not remove Material from the Services in response to phone or email notifications regarding allegedly infringing Material, since a valid DMCA notice must be signed, under penalty of perjury, by the copyright owner or by a person authorized to act on his or her behalf. Please submit such notifications by fax or ordinary mail only and as further described by this Section. The Copyright Agent should be contacted only if you believe that your work has been used or copied in a way that constitutes copyright infringement and that such infringement is occurring on the Services or on sites linked to or from the Services, or in connection with the Services or Materials. All other inquiries directed to the Copyright Agent will not be responded to. 18. Advertising and Your Material. You agree that 1Mark Golf Scoring may display advertisements adjacent to Your Material, and you agree that you are not entitled to any compensation. The manner, mode, and extent of advertising or other revenue generating models pursued by 1Mark Golf Scoring on or in conjunction with the Services and/or Your Material are subject to change without specific notice to you. 19. Links to Other Sites. The Services and Materials may include links that will take you websites or services not operated by 1Mark Golf Scoring. Whether the link was provided by 1Mark Golf Scoring as a courtesy, or whether it was posted by a User, 1Mark Golf Scoring has no control over non-1Mark Golf Scoring websites or services. You agree that we are not responsible for the availability or contents of any website or service we do not operate. 20. Termination. 20.1 Termination by You. (a) As either an individual user or a group administrator for a Service, You may stop using the Service at any time. You may terminate 1Mark Golf Scoring’s right to distribute, publicly perform, and publicly display Your Shared Material by making it no longer Shared. You may terminate the remainder of 1Mark Golf Scoring’s rights by removing Your Material from the Service, either by deleting it manually, or by contacting 1Mark to have your subscription cancelled, if applicable, and content deleted. To terminate your Service account contact Support at http://www.1markscoring.com/contact-us.html. Any fees paid by you prior to your termination are not refundable. Termination of your account shall not relieve you of any obligation to pay any accrued fees or charges. (b) As a group administrator for a Service, you may terminate an individual User’s access to a Service at any time. 20.2 Termination by 1Mark Golf Scoring. Subject to Additional Terms for certain Services and any associated subscription terms and conditions, 1Mark Golf Scoring may at any time terminate our agreement with you (or any individual Additional Terms) if: (a) You have breached any provision of the Terms (or have acted in a manner that clearly shows you do not intend to, or are unable to, comply with the Terms); (b) 1Mark Golf Scoring is required to do so by Law (for example, where the provision of the Services or Materials to you is, or becomes, unlawful); (c) The provision of the Services to you by 1Mark Golf Scoring is, in 1Mark Golf Scoring’s opinion, no longer commercially viable; (d) 1Mark Golf Scoring has elected to discontinue the Services or Materials (or any part thereof); or (e) There has been an extended period of inactivity in your account. 20.3 Termination or Suspension of Services. 1Mark Golf Scoring may also terminate or suspend all or a portion of your account and/or access to the Services for any reason (subject to Additional Terms for certain Services). Except as may be set forth in any Additional Terms applicable to a particular Service, termination of your account may include: (a) removal of access to all offerings within the Services; (b) deletion of Your Material and Account Information, including your personal information, log-in ID and password, and all related information, files, and Materials associated with or inside your account (or any part thereof); and (c) barring of further use of the Services. 20.4 You agree that all terminations for cause shall be made in 1Mark Golf Scoring’s sole discretion and that 1Mark Golf Scoring shall not be liable to you or any third party for any termination of your account (and accompanying deletion of your Account Information), or access to the Services and Materials, including Your Material. 20.5 Upon expiration or termination of the Terms, you shall promptly discontinue use of the Services and Materials. However, any perpetual licenses you have granted, any of your indemnification obligations hereunder, any of 1Mark Golf Scoring’s disclaimers or limitations of damages of liabilities hereunder, and Sections 8-10, 12-16, 18, 20, 23, and 24 will survive any termination or expiration of the Terms. 20.6 Upon termination of your use of the Service by you or by 1Mark Golf Scoring for any other reason other than for cause, 1Mark Golf Scoring will make reasonable effort to notify you at least thirty (30) days prior to termination, at the email address you provide 1Mark Golf Scoring as part of your registration, with instructions on how to retrieve Your Material prior to such termination. 20.7 If your group administrator terminates your access to a Service, then you may no longer be able to access Shared Material that you or other users of the group have posted to a shared workgroup or shared workspace within that Service. You may, however, still access the Materials stored on your account, subject to Section 9.2 above. 20.8 Except as otherwise stated in any Additional Terms and applicable subscription terms, in the event of termination by 1Mark Golf Scoring for reasons other than breach of these Terms, 1Mark Golf Scoring will provide notice pursuant to the General Terms and will provide you with a pro rata refund for the prepaid and unused portion of the Service. 21. International Users. 21.1 The Services can be accessed from countries around the world and may contain references to Services and Materials that are not available in your country. These references do not imply that 1Mark Golf Scoring intends to announce such Services or Materials in your country. 21.2 These Services are controlled, operated, and administered by 1Mark Golf Scoring (Pty) Ltd from its offices in the South Africa. 1Mark Golf Scoring reserves the right to block access to the Services or Materials by certain international users. If you access the Services from a location outside the South Africa, then you are responsible for compliance with all local Laws. BACK TO PAGE 1 page 2/2
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