End User Licence Agreement

Copyright © 2008 Clubhouse International Inc. All rights reserved.
Last updated: 10 September 2008

IMPORTANT, READ CAREFULLY. THIS END USER LICENSE AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU AND CLUBHOUSE INTERNATIONAL INC. doing business as Golfsmack ("Golfsmack") and applies to the textual, image, graphical, 3D geometry, audio and video content collectively termed a Golfskin™ with which this Agreement is provided ("Golfskin™"). This Agreement will also apply to any Golfskin™ updates and upgrades subsequently furnished by Golfsmack, unless such are accompanied by different license terms and conditions which will govern their use.

BY CLICKING "YES" IN THE ACCEPTANCE BOX, OR BY INSTALLING, COPYING OR OTHERWISE USING THE GOLFSKINTM, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THIS GOLFSKIN™.

For the avoidance of doubt, Golfsmack is not affiliated in any way with Google Inc including the Google Earth™ mapping service. Golfsmack develops Golfskins™ on the Google Earth™ mapping service platform. Google Inc. has all rights reserved to KML and KMZ coding. http://code.google.com/apis/kml/documentation/ .

1. USE OF SOFTWARE

Subject to your compliance with the terms of this Agreement, Golfsmack grants you a revocable, non-exclusive, non-transferable license, without right of sublicense, to install, use and display the Golfskin™ in a machine-readable form solely for your personal, non-commercial purposes. You may reasonably copy the Golfskin™ to the extent necessary to enable your permitted personal, non-commercial use of the Golfskin™. There are no implied licenses under this Agreement, and all rights not expressly granted are reserved by Golfsmack.

2. RESTRICTIONS

Without limiting the foregoing, you may not (a) use the Golfskin™ with any products, systems, prepare any derivative work for commercial gain or resale purposes with the Golfskin™ or any portion thereof; (b) sublicense, transfer, assign, rent, lease, publish or otherwise convey the Golfskin™, or any right with respect thereto, to any third party; (c) disassemble, decompile or otherwise reverse engineer all or any portion of the Golfskin™; (d ) remove from the Golfskin™, or alter, any of the trademarks, trade names, logos, patent or copyright notices or other proprietary notices or markings; (e) use your access to the Golfskin™ to tamper with, spoof, or attempt to obtain unauthorized access to Golfsmack's servers or databases; (f) engage in systematic retrieval of content from the Golfskin™ to create or compile, directly or indirectly, a collection, compilation, database, or directory; (g) use the Golfskin™ in an abusive manner as determined solely by Golfsmack; or (h) permit any other party to do any of the foregoing.

3. PRIVACY POLICY

As a condition of downloading and using the Golfskin™, you agree to the terms of the Golfsmack Privacy Policy found at www.golfsmack.com/privacy.aspx which may be updated from time to time and without notice.

4. PROPRIETARY RIGHTS

You acknowledge that (a) the Golfskin™ contains proprietary and confidential information that is protected by applicable intellectual property and other laws, and (b) Golfsmack, its suppliers and its licensors own all right, title and interest in and to the Golfskin™ and third party content including without limitation all Intellectual Property Rights therein and thereto. "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.

You agree that you will not, and will not allow any third party to, (i) sell, license, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Golfskin™, unless otherwise permitted, (ii) take any action to circumvent or defeat the security or content usage rules provided, deployed or enforced by any functionality (including without limitation digital rights management functionality) contained in the Golfskin™, (iii) use the Golfskin™ to access, copy, transfer or retransmit content in violation of any law or third party rights, or (iv) remove, obscure, or alter any copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Golfskin™.

5. UPDATES

The Golfskin™ may from time to time communicate with Golfsmack and/or third party servers to determine if updates to the Golfskin™ are available, such as but not limited to new content and enhanced functions (collectively, "Updates"). The Updates will only be provided if your Google Earth™ application is running and the Golfskin™ has been "checked on" by you. By installing the Golfskin™, you agree to receive such Updates and you understand that Golfsmack is under no obligation to inform you of or furnish to you any such Updates.

6. COMPLIANCE WITH REGULATIONS

You agree to comply with all local laws and regulations regarding the download, installation and/or use of the Golfskin™ such as but not limited to the following:

  • upload, post, email or transmit or otherwise make available any inappropriate, defamatory, infringing, obscene, or unlawful content;
  • upload, post, email or transmit or otherwise make available any content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party, unless you are the owner of such rights or have the permission of the owner to post such content;
  • impersonate another person or entity, or falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material; defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
  • use Golfskin™ for any illegal or unauthorized purpose;
  • submit content that falsely expresses or implies that such content is sponsored or endorsed by Golfsmack;
  • promote or provide instructional information about illegal activities or promote physical harm or injury against any group or individual; or
  • transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature.

7. TERMINATION

Without prejudice as to any other of its rights, Golfsmack may terminate this Agreement immediately and without notice if you fail to comply with any provision of this Agreement or of any other agreement between you and Golfsmack. In such event, you must immediately delete the Golfskin™ and any content, data, or images provided through the Golfskin™. To the maximum extent permitted by law, Golfsmack reserves the right to terminate this Agreement and your use of the Golfskin™ at any time and for any reason.

You may terminate this Agreement at any time by permanently deleting the Golfskin™ in its entirety.

8. SURVIVAL

Any termination of this Agreement shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or continuation in force of clauses and provisions of this Agreement which are expressly or by implication intended to come into force or continue in force on or after its expiry or termination including the provisions of Clauses 4, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 18.

9. INDEMNITY

You agree to indemnify, hold harmless and defend Golfsmack and its subsidiaries, licensors, suppliers, affiliates, agents, representatives, officers, directors, shareholders, and employees from and against any claim, suit or action arising from or in any way related to your use or possession of the Golfskin™ or your violation of this Agreement, including any liability or expense arising from all claims, losses, damages, suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, Golfsmack will provide you with written notice of such claim, suit or action.

10. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

a) YOUR USE OF THE GOLFSKINTM IS AT YOUR SOLE RISK. THE GOLFSKINTM IS PROVIDED ON AN "AS IS" BASIS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, GOLFSMACK EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, BY STATUTE, COMMON LAW OR OTHERWISE INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

b) GOLFSMACK MAKES NO WARRANTY (I) THAT THE GOLFSKINTM WILL MEET YOUR REQUIREMENTS, (II) THAT THE GOLFSKINTM WILL BE ERROR-FREE OR BUG-FREE, AND (III) THAT ANY ERRORS IN THE GOLFSKINTM WILL BE CORRECTED.

c) ANY CONTENT OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE GOLFSKINTM IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT OR MATERIAL.

11. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW YOU EXPRESSLY UNDERSTAND AND AGREE THAT GOLFSMACK AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF GOLFSMACK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE GOLFSKINTM OR TO ACCESS CONTENT OR DATA; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (V) ANY OTHER MATTER RELATING TO THE GOLFSKINTM. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.

UNDER NO CIRCUMSTANCES SHALL GOLFSMACK OR ANY THIRD PARTY WHO MAKES ITS CONTENT AVAILABLE IN CONJUNCTION WITH OR THROUGH THE GOLFSKINTM BE LIABLE TO YOU OR ANY USER ON ACCOUNT OF YOUR USE OR MISUSE OF THE GOLFSKINTM OR SUCH THIRD PARTY CONTENT. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF GOLFSMACK AND/OR A THIRD PARTY SOFTWARE OR CONTENT PROVIDER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM THE USE OR MISUSE OF, INABILITY TO USE, OR RELIANCE ON THE GOLFSKINTM AND ALL THIRD PARTY SOFTWARE OR CONTENT MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE GOLFSKINTM, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF ANY THIRD PARTY SOFTWARE OR CONTENT MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE GOLFSKINTM (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.

12. EXCLUSIONS AND LIMITATIONS

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED.

13. NO THIRD PARTY BENEFICIARIES

You agree that there shall be no third party beneficiaries to this Agreement.

14. ENTIRE AGREEMENT

This Agreement constitutes the entire agreement between Golfsmack (and its licensors, including their licensors and suppliers) and you with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral with respect to such subject matter.

15. GOVERNING LAW

This Agreement shall be governed and construed in accordance with the laws of the State of Nevada, without giving effect to (i) the conflict of laws provisions of the State of Nevada, or (ii) your actual state or country of residence. You agree to submit to the jurisdiction of the State of Nevada for any and all disputes, claims and actions arising from or in connection with this Agreement.

16. SEVERABILITY

If any term of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and that shall not affect the legality, validity or enforceability in that jurisdiction of any other term of this Agreement or the legality, validity or enforceability in other jurisdictions of that or any other provision of this Agreement.

17. WAIVER

The rights of each party under this Agreement may be exercised as often as necessary, are cumulative and not exclusive of rights or remedies provided by law; and may be waived only in writing and specifically. Delay in exercising or non-exercise of any such right is not a waiver of that right.

18. STATUTE OF LIMITATIONS

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Golfskin™ or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.