Golfsmack Terms of Use

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

Welcome to www.golfsmack.com a Web-based service of Clubhouse International Inc. doing business as Golfsmack (collectively, "us", "we" or "Golfsmack"). The following Terms and Conditions ("Terms of Use" or "Agreement") form a binding agreement between the User and Golfsmack. By accessing or using our web site at www.golfsmack.com or any related mobile programming (together the "Site"), you ("You" or "User") signify that You have read, understand and agree to be bound by these Terms of Use, whether or not You are a registered member of Golfsmack.

1. GENERAL

This Agreement applies to all Users of this website including Users who are also contributors of image or video content, information, opinions and other materials or services on the Site. Please review the following terms carefully. By using the Site, You are agreeing to these terms, and these terms will govern your use of the Site. If You do not agree to these terms, You must cease use of this Site.

The right to use the Site is personal to the User and is not transferable to any other person or entity. The User is responsible for all use of User's account and for ensuring that all use of User's account complies fully with the provisions of this Agreement. The User shall be responsible for protecting the confidentiality of the User's password, if any.

2. ELIGIBILITY

Membership in the Site is void where prohibited. This Site is intended solely for users who are thirteen (13) years of age or older. By using the Site, you represent and warrant that you are 13 or older and that you agree to and to abide by all of the terms and conditions of this Agreement. Any registration by, use of or access to the Site by anyone under 13 is unauthorized and in violation of these Terms of Use.

3. PRIVACY POLICY

As a condition of using the Site, 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 all content on the Site, including but not limited to Golfskins™, designs, text, graphics, pictures, video, sound and other files, and their selection and arrangement (the "Site Content"), contains proprietary and confidential information that is protected by applicable intellectual property and other laws, and Golfsmack, its suppliers and its licensors own all right, title and interest in and to the Site Content 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 Site Content, 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 Site Content, (iii) use the Site 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 Site and/or Site Content except that the foregoing does not apply to your own User Content (as defined below) that you legally post on the Site.

Provided that you are eligible for use of the Site, you are granted a limited license to access and use the Site and the Site Content and to download or print a copy of any portion of the Site Content to which you have properly gained access solely for your personal, non-commercial use, provided that you keep all copyright or other proprietary notices intact.

Such license is subject to these Terms of Use and does not include use of any data mining, robots or similar data gathering or extraction methods. Any use of the Site or the Site Content other than as specifically authorized herein, without the prior written permission of Company, is strictly prohibited and will terminate the license granted herein.

5. TRADEMARKS

Golfsmack, Golfsmack.com and Golfskins and other Golfsmack graphics, logos, designs, page headers, button icons, scripts and service names are trademarks of Golfsmack. All rights reserved. Golfsmack's trademarks may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Golfsmack. All other trademarks appearing on the Site are the property of their respective owners.

6. CHANGED TERMS

We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms of Use at any time without further notice. If we do this, we will post the changes to these Terms of Use on this page and will indicate at the top of this page the date these terms were last revised. Your continued use of the Site after any such changes constitutes your acceptance of the new Terms of Use. If You do not agree to abide by these or any future Terms of Use, do not use or access (or continue to use or access) the Site. It is your responsibility to regularly check the Site to determine if there have been changes to these Terms of Use and to review such changes.

7. USER CONDUCT

You agree to comply with all local laws and regulations regarding the use of the Site 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;
  • harvest or collect email addresses or other contact information of other users from the Site by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
  • use automated scripts to collect information from or otherwise interact with the Site;
  • use the Site in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Site;
  • 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 the Site for any illegal or unauthorized purpose;
  • submit content that falsely expresses or implies that such content is sponsored or endorsed by Golfsmack;
  • upload, post, transmit, share, store or otherwise make available content that, in the sole judgment of Golfsmack, is objectionable or which restricts or inhibits any other person from using or enjoying the Site, or which may expose Golfsmack or its users to any harm or liability of any type;
  • 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.

8. USER CONTENT

You are solely responsible for the photos, profiles, messages, text, video, listings, and other content that you upload, publish or display (hereinafter, "submitting") to the Site (collectively the "User Content"). You may not submit, transmit, or share User Content on the Site that you did not create or that you do not have permission to submit. You understand and agree that Golfsmack may, but is not obligated to, review the Site and may delete or remove (without notice) any Site Content or User Content in its sole discretion, for any reason or no reason, including without limitation User Content that in the sole judgment of Golfsmack violates this Agreement, or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users or others. You agree that Golfsmack has no obligation to publish, display or otherwise distribute any User Content.

By submitting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to Golfsmack a royalty-free, irrevocable, perpetual, non-exclusive, transferable, sublicensable, worldwide right and license to use, copy, adapt, publish, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing for the full term of any copyright that exists in such material.

Users acknowledge and agree that Golfsmack shall not be liable for any failure to store User Content on the Site at any time. In the event that Users no longer have access to any data stored on the Site, Users hereby release Golfsmack from any and all liability resulting from their inability to access User data at any time. Users take sole and complete responsibility for User Content. Golfsmack shall have no obligation to maintain confidentiality with respect to any User Content, subject only to limitations explicitly stated in the Privacy Policy.

9. MOBILE SERVICES

The Site may include certain services that are available via your mobile phone, including but not limited to an Instant Win game. We do not charge for this mobile service. However, your carrier's normal messaging, data and other rates and fees will still apply according to your rate plan agreement with your carrier. You should check with your carrier to find out what plans are available and how much they cost. In addition, using certain mobile services may be prohibited or restricted by your carrier, and not all mobile services may work with all carriers or devices. Therefore, You should check with your carrier to find out if the mobile services are available for your mobile devices, and what restrictions, if any, may be applicable to your use of such mobile services. By using the mobile services, You agree that we may communicate with you by SMS to facilitate your use of the mobile service and that certain information about your usage of the mobile services may be communicated to us by your carrier or 3rd party facilitators.

10. THIRD PARTY CONTENT

The Site contains (or You may be sent through the Site) links to other web sites ("Third Party Sites") as well as articles, photographs, text, graphics, sound, video, information, and other content or items belonging to or originating from third parties. Such Third Party Sites are not investigated, monitored or checked for accuracy, appropriateness, or completeness by Golfsmack, and we are not responsible for any Third Party Sites accessed through the Site or available through the Site, including without limitation the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites.

Inclusion of or linking to any Third Party Site does not imply approval or endorsement thereof by Golfsmack. If You decide to leave the Site and access the Third Party Site. You do so at your own risk and You should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which You navigate from the Site.

11. COPYRIGHT COMPLAINTS

Golfsmack respects the intellectual property rights of others. If You believe that your work has been copied in a way that constitutes copyright infringement, please provide our Copyright Agent the following information:

  1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
  2. Identification of the copyrighted work that You claim has been infringed;
  3. A description that reasonably enables us to locate the material that You claim is infringing;
  4. Your postal address, telephone number, and email address;
  5. A statement by You that You have a good faith belief that the use of the material in the manner described in your complaint is not authorized by the copyright owner, its agent, or the law; and
  6. A statement by You that the above information is accurate, and under penalty of perjury, that You are the copyright owner or authorized to act on the copyright owner's behalf.

Our Copyright Agent for notice of claims of copyright infringement on the Site can be reached by directing an e-mail to the Copyright Agent at copyrightagent@golfsmack.com.

12. DISCLAIMERS

The Site may be temporarily unavailable from time to time for maintenance or other reasons. Golfsmack assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, User communications. Golfsmack is not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any Site or combination thereof, including injury or damage to User's or to any other person's computer, mobile phone, or other hardware or software, related to or resulting from using or downloading materials in connection with the Web and/or in connection with the Site. Under no circumstances will Golfsmack be responsible for any loss or damage, including any loss or damage to any User Content or personal injury or death, resulting from anyone's use of the Site or any interactions between users of the Site or Site Content, whether online or offline.

13. 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 cease your use of the Site and Site Content. To the maximum extent permitted by law, Golfsmack reserves the right to terminate this Agreement and your use of the Site at any time and for any reason.

14. 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, 5, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24.

15. 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 the Site 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.

16. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

a) YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THE SITE 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 SITE WILL MEET YOUR REQUIREMENTS, (II) THAT THE SITE WILL BE ERROR-FREE OR BUG-FREE, AND (III) THAT ANY ERRORS IN THE SITE WILL BE CORRECTED.

c) ANY CONTENT OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE 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.

17. 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 SITE 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 SITE. 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 SITE BE LIABLE TO YOU OR ANY USER ON ACCOUNT OF YOUR USE OR MISUSE OF THE SITE 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 SITE AND ALL THIRD PARTY SOFTWARE OR CONTENT MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF ANY THIRD PARTY SOFTWARE OR CONTENT MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE (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.

18. EXCLSIONS 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.

19. NO THIRD PARTY BENEFICIARIES

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

20. 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.

21. 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.

22. 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 endeavour 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.

23. 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.

24. 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 Site or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.