Please read carefully the terms and conditions of this end user license agreement (“agreement”) before downloading, installing or using any software applications (each, an “app”) or services (“Services”) provided by Swing by Swing Golf, Inc., d.b.a. SwingU (“SwingU”) – makers of the apps SwingU GPS and Scorecard Application, the gottaGolf Application, the Golf Tracer Application, the Dr. Joe Parent Application, the Gary Gilchrist Golf Application, the Joe Hallett Application, the Plane Truth Application, the Stan Utley application, the Golf Guru Application, and any other app(s) under the Swing by Swing Golf, Inc. Apple or Google Play Developer Accounts. This is a legal agreement between SwingU and you. This EULA, the SwingU Terms of Service and the SwingU Privacy Policy are incorporated herein by reference (collectively the “terms”) and govern your access to and use of the app.
By downloading, installing or using the app you acknowledge and agree that:
- YOU HEREBY WAIVE ANY AND ALL CLAIMS AGAINST Swing by Swing Golf, Inc.. ARISING OUT OF YOUR USE OF THE APP and any of the information contained thereon;
- the App is licensed, not sold to you and you may use the App only as set forth in this EULA;
- understanding SwingU does not share or display your email address or name, and protects your privacy as outlined in the SwingU Privacy Policy, you consent to the collection, use, sharing and transfer of any personally identifiable information you choose to provide, including the transfer and processing of your information outside your home country;
- you acknowledge that third party terms and fees may apply to the use and operation of your mobile device in connection with your use of the App, such as your carrier’s terms of services, and fees for phone service, data access, or messaging capabilities, and that you are solely responsible for payment of any and all such fees;
- as set forth in this EULA, the App is provided “as is”;
- you may request a copy of this EULA by emailing us at contact@swingbyswing.com; and
- if you are using the App on an iOS product, you agree to and acknowledge the “Notice Regarding Apple,” below.
IF YOU DO NOT AGREE TO BE BOUND BY ABOVE TERMS (AS DESCRIBED IN FURTHER DETAIL BELOW) YOU MAY NOT DOWNLOAD, INSTALL OR USE THE APP.
MODIFICATION OF THE EULA
SwingU reserves the right to modify and/or change any of the terms and conditions of this EULA at any time and without prior notice. If SwingU materially modifies this EULA it will post the updated EULA in the “Settings Menu” of the App via a hyperlink or by other reasonable means now known or hereafter developed. By continuing to use the App after SwingU has posted a modification of this EULA, you agree to be bound by the modified EULA. If the modified EULA is not acceptable to you, your only recourse is to discontinue the use of and uninstall the App. This Agreement will also govern any software upgrades and/or updates provided by SwingU that upgrade and/or supplement the App, unless such upgrades and/or updates are accompanied by a separate license, in which case the terms of that separate license will apply.
LIMITED LICENSE
Conditioned upon your compliance with the terms and conditions of this EULA, SwingU hereby grants to you a limited, revocable, non-exclusive, personal, non-sublicensable, non-transferable, non-assignable license to install and use the executable form of the App solely for your personal use on a device (whether mobile device or other) owned or controlled by you. SwingU reserves all rights in the App not expressly granted to you in this EULA.
PHONE SETTINGS AND UNINSTALL PROCEDURES
As part of the installation process of the App, you may be changing your mobile device settings and/or your social network account settings. By installing the App, you agree you have approved such changes and you understand you can reconfigure such settings at any time from the “Settings Menu” available in the App, in the configuration options available in your mobile device, from within your social network account or from your mobile device Setting Menu. Such changes may include, without limitation, the following:
- Allowing software updates of the App once a new version is released and the ability to send notifications.
- Allowing SwingU access to location-based information.
To uninstall the App, you may use the standard uninstall procedures offered by your device’s Operating System.
USE RESTRICTIONS
You may not use the App in any manner that could: (i) damage, disable, overburden, or impair the App (or any server or networks connected to any the App), or (ii) interfere with any third party’s use and/or enjoyment of the App (or any server or networks connected to the App). Except as expressly specified in this EULA, you may not: (a) copy or modify the App; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the App to any third party; or (c) use the App in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this EULA. You acknowledge and agree that portions of the App, including, without limitation, the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of SwingU and its licensors. Accordingly, you agree not to disassemble, decompile or otherwise reverse engineer any components of the App provided in object code or any other SwingU products or services, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
OPEN SOURCE
Any Open Source Software that may be accompanying the App is provided to you under the terms of the open source license agreement or copyright notice accompanying such Open Source Software or in the open source licenses file accompanying the Software. As used herein “Open Source Software” mean open source software components provided with the App that are licensed to you under the terms of the applicable license agreements included with such open source software components or other materials for the App. This EULA does not apply to any Open Source Software accompanying the App and SwingU hereby disclaims any and all liability to you or any third party related thereto.
RESERVATION OF RIGHTS
The software, content, visual interfaces, interactive features, information, graphics, design, compilation, computer code and all other elements of the App (the “SwingU Materials”), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All SwingU Materials, including intellectual property rights therein and thereto, are the property of SwingU or its subsidiaries or affiliated companies and/or third-party licensors. SwingU reserves all rights not expressly granted in this EULA. You shall not acquire any right, title or interest to the SwingU Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in this EULA.
USER CONTENT
The App provides certain features that enable you to post a variety of content to the App (“User Content”) including, but not limited to, images, captions, comments, usernames, bios or links. You are solely responsible for all User Content that you make available through the App. Similarly, SwingU is not responsible to you for any User Content provided by other users of the App. When you contribute, upload or otherwise provide User Content via the app, you agree to comply with the following Community Usage Rules. In addition to removing such prohibited content, SwingU may terminate the responsible accounts, and/or report such activities to law enforcement authorities as appropriate. Prohibited User Content includes, but is not limited to, content that SwingU determines:
- is patently offensive or promotes or otherwise incites racism, bigotry, hatred or physical harm of any kind against any group or individual;
- is designed to bring down another group or individual harasses or advocates harassment of another person;
- criticizes the weight or appearance of another person;
- is supporting, glamorizing, or encouraging disordered eating;
- exploits people in a sexual or violent manner or contains nudity, excessive violence, or offensive subject matter or contains a link to an adult or otherwise objectionable website;
- involves commercial activities and/or sales without prior written consent from SwingU such as contests, sweepstakes, barter, advertising, or pyramid schemes;
- violates or attempts to violate the privacy rights, publicity rights, copyrights, patent rights, trademark rights, contract rights or any other rights of any person.
SwingU does not allow infringing materials on the App, and you agree and acknowledge that SwingU may block or remove User Content that is the subject of Digital Millennium Copyright Act compliant takedown notices and disable accounts of users determined to be “repeat infringers.” By submitting User Content to SwingU you hereby grant SwingU and its affiliates, sublicensees, partners, designees, and assignees of the App (collectively, the “SwingU Licensees”) a non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable, transferable, worldwide license (without any obligation to exercise) to use, reproduce, distribute, modify, adapt, publicly display, publicly perform, and otherwise exploit your User Content and derivatives thereof in connection with the App and SwingU’s (or its successors’) business in any media formats and through any media channels now known or hereafter discovered or developed.
TERM AND TERMINATION
This EULA will remain in effect until terminated. The EULA, and your rights and licenses hereunder, will terminate immediately upon your breach of the EULA. You may terminate the EULA by uninstalling and discontinuing your use of the App. SwingU may terminate support of the App and/or this EULA, or limit or terminate your access to the App at any time for any reason. Sections entitled Reservation of Rights, User Content, Term and Termination, Warranty Disclaimer and Limitation of Liability, Indemnification, and Miscellaneous shall survive any termination of this EULA.
WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SWINGU DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, QUALITY, AND NONINFRINGEMENT. SWINGU EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION OR FEATURES AVAILABLE THROUGH THE SERVICE, OR THE QUALITY OR CONSISTENCY OF THE SERVICE.
LIABILITY WAIVER
IN NO EVENT WILL SWINGU, ITS OFFICERS, ITS DIRECTORS, OR ITS AFFILIATES BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR INJURY OR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS OR USE OF, OR INABILITY TO ACCESS OR USE THE APP AND THE INFORMATION AVAILABLE ON THE APP OR ARISING OUT OF ANY ACTION TAKEN IN RESPONSE TO OR AS A RESULT OF ANY INFORMATION AVAILABLE ON THE APP. YOU HEREBY WAIVE ANY AND ALL CLAIMS AGAINST Swing by Swing Golf, Inc.. ARISING OUT OF YOUR USE OF THE APP AND THE INFORMATION THEREON.
INDEMNIFICATION
To the maximum extent permitted by law, You agree to defend, indemnify and hold SwingU, its officers, directors, partners, employees, contractors, agents, licensors, and suppliers, harmless from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from, your use of the Service or any breach by you of this EULA.
MISCELLANEOUS
(a) This EULA and all the policies referenced herein constitute the entire agreement between SwingU and you concerning the subject matter hereof, and it may only be modified by a written amendment signed by an authorized executive of SwingU. (b) The section titles in this EULA are provided solely for convenience and have no legal or contractual significance. (c) This EULA shall be governed by and interpreted under the laws of the State of Georgia, without regard to its conflicts of laws provisions. All actions relating to this EULA and the App shall be brought in a state or federal court located in Fulton County, Georgia. (d) The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. (e) If for any reason a court of competent jurisdiction finds any provision of his EULA or portion thereof, to be unenforceable, that provision of this EULA shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this EULA shall continue in full force and effect. (f) You may not assign your rights under this EULA to any party without SwingU’s consent. (g) If any provision of this EULA shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this EULA and shall not affect the validity and enforceability of any remaining provisions.
NOTICE REGARDING APPLE
You acknowledge that this EULA is between you and Swing by Swing Golf, Inc.. only, not with Apple, and Apple is not responsible for the App and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the App. Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. If SwingU provides a translation of the English language version of this EULA is provided, the translation is provided solely for convenience, and the English version shall prevail.
