BY ACCESSING, USING THE ACCELERATE GOLF™ APPLICATION AND/OR SIGNIFYING YOUR ACCEPTANCE TO THESE TERMS OF SERVICE, YOU AGREE TO THE TERMS OF THIS ELECTRONIC AGREEMENT ON YOUR OWN BEHALF AND ON BEHALF OF THE PERSON LISTED IN THE ORDER, REGISTRATION, SIGN UP OR SIMILAR FORM (“ORDER FORM”). YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THE ENTITY THAT YOU WORK FOR AND YOURSELF TO THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE AND DO NOT HAVE THE AUTHORITY AS PROVIDED HEREIN, DO NOT ACCESS, OR USE THE SERVICE (AS DEFINED IN THESE TERMS OF SERVICE).
NOTICE OF ARBITRATION AGREEMENT AND CLASS ACTION WAIVER: THIS AGREEMENT INCLUDES A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER, SET FORTH BELOW, WHICH AFFECT YOUR RIGHTS ABOUT RESOLVING ANY DISPUTE WITH US. PLEASE READ IT CAREFULLY.
Note to Social Media Users. When purchasing products and services from this Website, our LinkedIn profile or other social media page, and when posting information to or otherwise communicating via that page or your own social media page, your activities online are subject to the Terms of Service, User’s Agreement or other terms and conditions imposed by that social media website, which may contain terms and conditions different from these Terms of Service. Please see the following pages for further details:
O http://www.facebook.com/legal/terms (Facebook’s Statement of Rights and Responsibilities);
O http://www.snap.com/en-US/terms/ (SnapChat’s User’s Agreement);
O https://twitter.com/tos (Twitter’s Terms of Service);
O https://help.instagram.com/478745558852511 (Instagram’s Terms of Service);
O https://policy.pinterest.com/en/terms-of-service (Pinterest’s Terms of Service); and
O http://www.google.com/intl/en/policies/terms (Google’s Terms of Service).
1. Privacy & Security; Disclosure
In providing you our Service, Accelerate Golf™ will not sell any Personal Information contained in Customer Data. Accelerate Golf™ will not retain, use or disclose the Personal Information you provide to us about your clients except for the specific purpose of performing our obligations under this Agreement, including providing and improving the Service under this Agreement, nor will Accelerate Golf™ retain, use or disclose Personal Information about your clients outside of our direct business relationship with you or the legal entity under which you practice or are employed.
It is your responsibility to comply with all applicable privacy and data protection laws and to ensure that you have provided all required notices and obtained all necessary consents from your Users and your clients (including with respect to third parties’ access), and that your patients or your clients have agreed to the collection of their Customer Data and the access of their Customer Data by you, by us, and, where applicable, other third parties. Any sample documentation that is provided by Accelerate Golf™ for obtaining consent is for illustration only, and you alone (and not Accelerate Golf™) are responsible to ensure that such documentation is adequate and enforceable to obtain requisite consent (including with respect to clients who are under 21 years of age, consent from their parents or legal guardians). We will make no use of Personal Information that is not permitted by this Agreement or that is prohibited by applicable law. In the event that we receive a subpoena or other legal or court order compelling the disclosure of any of your clients’ Customer Data or any of your data, unless ordered to not do so by a court of competent jurisdiction, or unless our legal counsel advises us that prior notification is not required or in violation of applicable law, we will notify you of the subpoena or other legal or court order prior to disclosing the Personal Information or other data. We will make commercially reasonable efforts to maintain the Service in a manner that includes appropriate administrative, technical, and physical security measures designed to protect the confidentiality, availability, and integrity of Personal Information that is in our possession.
2. License Grant & Restrictions
Accelerate Golf™ hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Accelerate Golf™ and its licensors.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
3. Your Responsibilities; Prohibited Conduct and Content
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Accelerate Golf™ immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Accelerate Golf™ immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another Accelerate Golf™ user or provide false identity information to gain access to or use the Service.
You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using the Service. Without limiting the foregoing, you will not:
Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Service that you are not authorized to access; or
Use the Service for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms of Service.
You may only upload or otherwise share Customer Data that you have all necessary rights to disclose. You may not upload, store or share any Customer Data that:
Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
Contains any private or personal information of a third party, a client or patient, without such third party’s consent;
In addition, although we have no obligation to screen, edit or monitor Customer Data, we may delete or remove or suspend the use of Customer Data at any time and for any reason.
By accessing or using the Service, you consent to the processing, transfer and storage of information about you and your Users in and to the United States and other countries, where you may not have the same rights and protections as you do under local law.
4. Account Information and Data
Accelerate Golf™ does not own any data, information or material that you submit to the Service in the course of using the Service (“Customer Data”). You, not Accelerate Golf™, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Accelerate Golf™ shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), Accelerate Golf™ will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. Accelerate Golf™ reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Accelerate Golf™ shall have no obligation to maintain or forward any Customer Data.
5. Intellectual Property Ownership
Accelerate Golf™ alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights to Accelerate Golf™’s Technology, Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Accelerate Golf™’s Technology or the Intellectual Property Rights owned by Accelerate Golf™. The Accelerate Golf™ name, the Accelerate Golf™ logo, and the product names associated with the Service are trademarks of Accelerate Golf™ or third parties, and no right or license is granted to use them.
6. Third Party Interactions
During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. Accelerate Golf™ and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. Accelerate Golf™ does not endorse any sites on the Internet that are linked through the Service. Accelerate Golf™ provides these links to you only as a matter of convenience, and in no event shall Accelerate Golf™ or its licensors be responsible for any content, products, or other materials on or available from such sites. Accelerate Golf™ provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.
7. Charges and Payment of Fees
The Accelerate Golf™ application is offered free for students and players. Coaches, instructors and professionals may use the application for free during an initial 30-day Free Trial Period, and thereafter shall pay all fees or charges to your account in accordance with the Order Form which outlines fees, charges, and billing terms that are in effect at the time a fee or charge is due and payable. The initial charges will include free registrations for a number of existing or “legacy” students; additional charges will be imposed if the requested number of existing or “legacy” students exceeds the amount set forth in the Order Form, or for new customer acquisition through the Service. Payments may be made annually or monthly, consistent with the Initial Term, or as otherwise mutually agreed upon. You are responsible for paying for all licenses added for the entire License Term, whether or not such store licenses are actively used. You must provide Accelerate Golf™ with valid EFT, credit card or approved purchase order information as a condition to signing up for the Service. An Account Administrator may add store licenses at user’s request. Added store licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added in the middle of a billing month or year will be charged in full for that billing month or year. Accelerate Golf™ reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.
8. Billing and Renewal
Accelerate Golf™ charges and collects in advance for use of the Service. Accelerate Golf™ will automatically renew and bill your EFT account or issue an invoice to you (a) every month for monthly licenses, (b) each year on the subsequent anniversary for annual licenses, or (c) as otherwise mutually agreed upon. The renewal charge will be equal to the then-current number of total licenses times the license fee in effect during the prior term, unless Accelerate Golf™ has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. Accelerate Golf™’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Accelerate Golf™’s income.
You agree to provide Accelerate Golf™ with complete and accurate EFT information, billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and Account Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Accelerate Golf™ reserves the right to terminate your access to the Service in addition to any other legal remedies.
Unless Accelerate Golf™ in its discretion determines otherwise: (i) entities with headquarters and a majority of users resident in the United States will be billed in U.S. dollars and subject to U.S. payment terms and pricing schemes (“U.S. Customers”); all other entities will be billed in U.S. dollars, Euros or local currency and be subject to either U.S. or non-U.S. payment terms and pricing schemes at the discretion of Accelerate Golf™(“Non-U.S. Customers”).
If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
9. Non-Payment and Suspension
In addition to any other rights granted to Accelerate Golf™ herein, Accelerate Golf™ reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for licenses during any period of suspension. If you or Accelerate Golf™ initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that Accelerate Golf™ may charge such unpaid fees to your EFT account or otherwise bill you for such unpaid fees.
Accelerate Golf™ reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that Accelerate Golf™ has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
10. Term of License; Termination upon Expiration/Reduction in Number of Licenses
This Agreement commences on the Effective Date in the Order Form, or the date of your registration to use the Service if earlier. Students and players who register for the Service may terminate their licenses at any time; upon such termination, Accelerate Golf™ will notify any coaches, instructors and other professionals with whom such student or player has been taking lessons through the Service. Coaches, instructors and other professionals will initially license the Service for a thirty (30) day Free Trial Period, during which no fees will be payable. At the end of the Free Trial Period coaches, instructors and other professionals will be given the option to renew the license for an Initial Term of one year or one month by completing and signing our Order Form. The Initial Term will be as you elect in the Order Form or as otherwise mutually agreed upon, commencing on the date you agree to pay for the Service by completing the online Order Form or otherwise. If you do not elect an Initial Term, your subscription to Accelerate Golf™ will end on the expiration of the Free Trial Period. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term at Accelerate Golf™’s then current fees, except that either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least five (5) business days (for monthly licenses) or thirty (30) days (for annual licenses) prior to the commencement of the following term. In the case of the Free Trial Period, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In the event this Agreement is terminated (other than by reason of your breach), Accelerate Golf™ will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. You agree and acknowledge that Accelerate Golf™ has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination. Data can be held by signing up for our data storage service option at the current yearly rate.
11. Termination for Cause
Any breach of your payment obligations or unauthorized use of the Accelerate Golf™’s Technology or Service will be deemed a material breach of this Agreement. Accelerate Golf™, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, Accelerate Golf™ may terminate a free account at any time in its sole discretion. You agree and acknowledge that Accelerate Golf™ has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
12. Intellectual Property Rights
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain images and descriptions of players, coaches, instructors, professionals, golf courses and accessories, and other content (collectively, “Service Content”) that is protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Accelerate Golf™, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you shall not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology underlying the Service (including the Software distributed in connection therewith) is the property of Accelerate Golf™, our affiliates and our partners. You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Service (including the Software). Any rights not expressly granted herein are reserved by Accelerate Golf™.
The Accelerate Golf™ name and logos are trademarks and service marks of Accelerate Golf™ (collectively the “Accelerate Golf™ Trademarks”). Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Accelerate Golf™. Nothing in these Terms or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Accelerate Golf™ Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Accelerate Golf™ Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will Accelerate Golf™ be liable in any way for any items or content posted by third parties or at the direction of users, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any items or content posted, sold, purchased or otherwise transmitted via the Service. You acknowledge that Accelerate Golf™ does not pre-screen items or content, but that Accelerate Golf™ and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any items or content that is available via the Service. Without limiting the foregoing, Accelerate Golf™ and its designees shall have the right to remove any item or content that violates these Terms or is deemed by Accelerate Golf™, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any items or content, including any reliance on the safety, condition, accuracy, completeness, or usefulness of such items or content.
User Content Posted on the Site: You are solely responsible for the content you post or transmit on or through the Service (collectively, “User Content”). You will not post any content that you did not create or that you do not own all right, title and interest in and to, including, without limitation, all copyright and rights of publicity contained therein. By posting or otherwise transmitting any User Content you hereby grant and will grant to Accelerate Golf™ and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, transmit, perform, distribute, store, modify, make derivative works of and otherwise use in any manner your User Content in connection with the operation of the Service or any other products or services of Accelerate Golf™, or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed (including without limitation publishing your User Content on the Internet or on Third Party Services such as Facebook, sharing it with blogs, etc., and allowing other users to share listings that include your User Content).
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Site or the Service (“Submissions”), provided by you to Accelerate Golf™ are non-confidential and Accelerate Golf™ shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that Accelerate Golf™ may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Accelerate Golf™, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Infringement Policy: Accelerate Golf™ respects the intellectual property of others, and we ask our users to do the same. Accelerate Golf™ will promptly process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act, the Copyright Act and other applicable intellectual property laws with respect to any alleged or actual infringement. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, please provide our Copyright Agent with the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
a description of the copyrighted work or other intellectual property that you claim has been infringed;
a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
If you believe that your User Content that 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 the law, to post and use the content in your User Content, you may send a written counter-notice containing the following information to the 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 mistake or a misidentification of the content; and
your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within the State of Connecticut and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Accelerate Golf™ will 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 ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at our sole discretion.
The above information should be sent to Accelerate Golf™’s Copyright Agent for Notice of claims of copyright or other intellectual property infringement by email to the following address: firstname.lastname@example.org (Subject line: “DMCA Takedown Request”). You may also contact us by mail at:
QSchool Sports LLC dba Accelerate Golf™
Attn: Copyright Agent
58 Sabina Road
Trumbull, Connecticut 06611, U.S.A.
13. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Accelerate Golf™ represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Accelerate Golf™ help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
You shall indemnify and hold Accelerate Golf™, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Accelerate Golf™(a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Accelerate Golf™ of all liability and such settlement does not affect Accelerate Golf™’s business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
15. Disclaimer of Warranties
ACCELERATE GOLF™ AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. ACCELERATE GOLF™ AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY ACCELERATE GOLF™ AND ITS LICENSORS.
16. Internet Delays
ACCELERATE GOLF™’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ACCELERATE GOLF™ IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
17. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
18. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
19. Disclaimer of Warranties as to Use Outside of the United States
Accelerate Golf™ is a United States-based service. We make no representation that any aspect of the Service is appropriate or available for use outside of the United States or may be used for persons who are not citizens of the United States or residents of other countries. Those who access the Service from other locations are responsible for compliance with applicable local laws. The Service is subject to applicable export laws and restrictions.
You agree not to hold Accelerate Golf™ liable for the Content, actions, or inactions of you or other Users of the Service or of other third parties. As a condition of access to the Service, you release Accelerate Golf™ (and its officers, directors, shareholders, agents, subsidiaries, and employees) from claims, demands, losses, liabilities and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have or claim to have with one or more other users of the Service or with other third parties, including whether or not Accelerate Golf™ becomes involved in any resolution or attempted resolution of the dispute. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Accelerate Golf™ may give notice by means of a general notice on the Service, electronic mail to your email address on record in Accelerate Golf™’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in Accelerate Golf™’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Accelerate Golf™(such notice shall be deemed given when received by Accelerate Golf™) at any time by any of the following: by electronic mail to email@example.com; or by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Accelerate Golf™ at the following address: QSchool Sports LLC, 58 Sabina Road, Trumbull, Connecticut 06611, in either case, addressed to the attention of: CEO.
22. Modification to Terms
Accelerate Golf™ reserves the right to modify the terms and conditions of these Terms of Services or its policies relating to the Service at any time, effective upon posting of an updated version of these Terms of Service on the Service and notification to you as provided in Section 20. Continued use of the Service after any such changes shall constitute your consent to such changes.
23. Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of Accelerate Golf™ but may be assigned without your consent by Accelerate Golf™ to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Accelerate Golf™ directly or indirectly owning or controlling 50% or more of you shall entitle Accelerate Golf™ to terminate this Agreement for cause immediately upon written notice.
24. Dispute Resolution
In the event of a Dispute between you and Accelerate Golf™(including any dispute over the validity, enforceability, or scope of this dispute resolution provision), other than with respect to claims for injunctive relief, the Dispute will be resolved by binding arbitration pursuant to the rules of the American Arbitration Association Commercial Arbitration Rules. The place of the arbitration shall be in Trumbull, Connecticut. In the event that there is any Dispute between you and Accelerate Golf™ that is determined not to be subject to arbitration pursuant to the preceding sentence, you agree to submit in that event to the exclusive jurisdiction and venue of the courts of the State of Connecticut for the Judicial District of Fairfield or the United States District Court for the District of Connecticut. You agree that this Agreement and the relationship between you and Accelerate Golf™ shall be governed by the Federal Arbitration Act and the laws of the State of Connecticut without regard to conflict of law principles or the United Nations Convention on the International Sale of Goods. Notwithstanding this, either party shall still be allowed to apply for injunctive or other equitable relief to protect or enforce that party’s Intellectual Property Rights in any court of competent jurisdiction where the other party resides or has its principal place of business.
25. Class Action Waiver
Any proceedings to resolve or litigate any Dispute in any forum will be conducted solely on an individual basis. Class arbitrations, class actions, private attorney general actions, consolidation of your Dispute with other arbitrations, or any other proceeding in which either party acts or proposes to act in a representative capacity or as a private attorney general are not permitted and are waived by you, and an arbitrator will have no jurisdiction to hear such claims. If a court or arbitrator finds that the class action waiver in this section is unenforceable as to all or some parts of a Dispute, then the class action waiver will not apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of this Dispute resolution section is found to be illegal or unenforceable, that provision will be severed with the remainder of this section remaining in full force and effect.
26. Note to Users Outside the United States and Canada
Accelerate Golf™ is designed for use by sports coaches and players in the United States of America and Canada. If you reside in a country other than the United States of America or Canada, you represent and warrant that your use of Accelerate Golf™ will not violate any applicable law, rule or regulation in your home country, or the professional rules of any medical association or body in your home country with which you are affiliated, and that your use of the Accelerate Golf™ service will not breach or violate any of same. You indemnify QSchool Sports LLC, its managers, members, employees and agents, from and against any loss, claim, damage, liability, cost or expense which any of them may incur arising from or in connection with your knowing or unknowing violation of the foregoing representation and warranty. QSchool Sports LLC reserves the right to terminate your subscription without notice in the event it learns or suspects that your use of the Service violates any applicable law, rule or regulation in any country in which Accelerate Golf™’s users reside or work.
With respect to U.S. Customers, this Agreement shall be governed by Connecticut law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction and venue of the courts of the State of Connecticut for the Judicial District of Fairfield or the United States District Court for the District of Connecticut. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Accelerate Golf™ as a result of this agreement or use of the Service. The failure of Accelerate Golf™ to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Accelerate Golf™ in writing. This Agreement, together with any applicable Order Form and policies, comprises the entire agreement between you and Accelerate Golf™ and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
As used in this Agreement and in any Order or Forms now or hereafter associated herewith:
” Accelerate Golf™” means the software application QSchool makes available for subscription on its website at http://accelerategolf.com;
” Accelerate Golf™’s Technology” means all of our proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Accelerate Golf™ in providing the Service;
“Account Administrator(s)” means those Users designated by you who are authorized to purchase licenses online or by executing written Order Forms to create accounts and otherwise administer your use of the Service;
“Content” means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service;
“Customer Data” means any data, information or material provided or submitted by you to the Service in the course of using the Service;
“Effective Date” means the earlier of either the date this Agreement is accepted by selecting the “I Accept” option presented on the screen after this Agreement is displayed, the Effective date on the Order Form or the date you begin using the Service;
“Free Trial Period” means a period of thirty (30) days beginning on the Effective Date, during which you will not be charged for the Service.
“Initial Term” means the initial period following the expiration of the Free Trial Period during which coaches and professionals are obligated to pay for the Service equal to the billing frequency selected by you during the subscription process (e.g., if the billing frequency is monthly, the Initial Term is the first month);
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
“License Term(s)” means the period(s) during which a specified number of Stores are licensed to use the Service pursuant to the Order Form(s);
“Order Form(s)” means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail);
“QSchool”, “we”, “our” and/or “us” means QSchool Sports LLC, a Connecticut limited liability company having an address at 58 Sabina Road, Trumbull, Connecticut 06611.
“Service(s)” means the specific modules of Accelerate Golf™’s online subscription based tools and services identified during the ordering process, developed, operated, and maintained by Accelerate Golf™, accessible via http://accelerategolf.com or another designated web site or IP address, or ancillary online or offline products and services provided to you by Accelerate Golf™, to which you are being granted access under this Agreement, including Accelerate Golf™’s Technology and the Content;
“User(s)” means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by Accelerate Golf™ at your request).
Questions and Suggestions
If you have questions or suggestions, please contact us at:
QSchool Sports LLC
58 Sabina Road
Trumbull, Connecticut 06611