Effective Date: February 1, 2021
These Terms of Use apply to the clubup.com website operated by ClubUp, LLC and its affiliates (“ClubUp,” “we,” “our” or “us”) and any other website that links to these Terms of Use (collectively, the “Site”). Please read these terms carefully. They set out legally binding terms and conditions to your use of the Site and our services made available through the site (“Services”).
Acceptance; Privacy Policy
By accessing or using the Site you agree to be bound by these Terms of Use, and you represent and warrant that you are at least 18 years of age, or the age of majority in your jurisdiction of residence (if higher than 18), and are fully able and competent to enter into the terms, conditions, representations and warranties set forth in these Terms of Use. If you disagree with any part of these Terms of Use then you do not have permission to access the Site or use our Services. Along with these Terms of Use, please read our Privacy Policy and refer to it before you submit any personal information to or through the Site. The Privacy Policy is hereby incorporated and made part of these Terms of Use.
Caddies
Caddies using the Services to connect with golfers who need assistance with a round of golf at a mutually agreed golf course are independent contractors and not employees, representatives or agents of ClubUp or of you (the golfer). Both you, as a golfer, and the caddie are each required to follow all applicable rules and instructions of the golf courses at which you play, including safety guidelines. You hereby authorize your caddies to share with ClubUp data regarding your rounds of golf, including stat cards, for purposes of receiving the reports described below as part of the Services.
Use of Site Content
Other than as expressly permitted in the next sentence of this Section 6, you may not copy, reproduce, distribute, transmit, display, perform, publish, license, modify, translate, adapt, create derivative works from, transfer, sell or otherwise exploit the Site, the Services, or any content, information, software, products or obtained from the Site or Services (including Reports) without our prior written permission in each instance. You may view and display the Site and use the Services solely for your own internal, noncommercial, lawful use, subject to the expressly stated restrictions or limitations relating to specific material on the Site, and such other additional terms and conditions or agreements as ClubUp may require you to agree to as a condition to use such material, if any, which are incorporated into these Terms of Use by this reference. If you make other use of the Site or Services, except as otherwise permitted above, you may violate copyright and other laws of the United States and other countries, as well as applicable state laws and may be subject to liability for such unauthorized use.
Limits on Use of Site
You may not (a) decompile, disassemble or reverse engineer the Site, its content, the Services or any portion of the Site or Services, or (b) attempt to gain unauthorized access to the Site, the Services, other user accounts or any other computer systems, software, or social media or mobile platforms linked to or through the Site or Services. You agree that you will not use the Site or Services in any manner that could damage, disable, overburden, or impair the Site or interfere with any other party’s use and enjoyment of the Site. You may not obtain or attempt to obtain any materials or information from the Site through any means not intentionally made available or provided for through the Site. Additionally, to promote a positive, useful and safe user experience across our users, you may not use the Site or Services to:
Intellectual Property
ClubUp and its licensors own all right, title and interest in and to the Site, all the text, content, graphics, interfaces, code and materials thereon, the look and feel, selection and arrangement, design and organization of the Site, and the compilation of the content, code, data and materials on the Site, including but not limited to all intellectual property and proprietary rights therein. Your use of the Site or Services does not grant to you ownership in or rights to of any of the foregoing. The Site is copyrighted as a collective work under the United States’ and other copyright laws, and is the property of ClubUp. The collective work includes works that are licensed to ClubUp. Unless otherwise indicated on the Site, displayed trademarks, corporate logos, services marks, trade names and emblems (collectively, the “Marks”) are subject to the trademark rights of, and are proprietary to, ClubUp, its licensors, partners or affiliates. ClubUp does not grant any license or other authorization to use the Marks except through a separate written license agreement.
Caddie Feedback
While ClubUp seeks to provide a helpful service to allow golfers and caddies to connect, and accepts feedback on caddies for use in ClubUp’s discretion, ClubUp does not oversee and is not responsible for the caddie’s performance. Feedback on caddies, if shared by ClubUp with the caddie to help them improve, is not intended to identify the reviewer, so please be candid in your reviews. If you share feedback on caddies with ClubUp, you consent to ClubUp’s use of such feedback, in its discretion, with caddies as described in this paragraph.
Unsolicited Submissions
Any unsolicited information, remarks, suggestions, ideas, graphics, or comments, including comments to improve our Services or the Site, whether submitted to us in person, by phone, email, upload, or otherwise (“Unsolicited Submissions”), is non-confidential, and automatically becomes ClubUp’s property upon receipt, without any compensation to you. We have no obligation to review or use any Unsolicited Submissions or to keep them confidential, but if we elect to use them, we are free to use and repurpose such Unsolicited Submission for any purpose. Specifically, we are free to use any ideas or concepts contained in any such Unsolicited Submission for any purpose whatsoever, without any compensation to you. ClubUp does not waive any rights it may have to similar or related ideas previously known to it or developed by its employees and representatives, or obtained from sources other than you. “Unsolicited Submissions” does not include round of golf information described in, and used according to, Sections 4 and 5 above. Nor does it include feedback on caddies, described in, and used according to, Section 9 above.
Password Security
A user ID and password are required to access the Services. You have the option to change your password. You are solely responsible for maintaining the confidentiality of any user ID and password you use to access the Services or any other portions of the Site and are fully responsible for all activities that occur under your password or account. You agree (i) to notify us immediately of any unauthorized use of your password or account or any other breach of security, and (ii) to ensure that you exit from your account at the end of each session. ClubUp is liable for any loss or damage arising from your failure to comply with this provision.
Payments
ClubUp may charge a fee for Services offered, such as a fee for each time you use a caddie with whom you connected through the Services. Fees are due at the time a service is rendered and will be payable by credit card through individual user accounts. ClubUp reserves the right to change the amount of its fees from time to time. For more information on how your personal information is used in connection with payment processing, please review our Privacy Policy.
NO WARRANTY; DISCLAIMERS OF WARRANTIES
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE AND ITS CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND CLUBUP HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SITE, ITS CONTENT, AND THE SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT AND/OR OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. CLUBUP DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SITE, THAT THE FUNCTIONS OR CONTENT CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY OR THROUGH, THE SITE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SITE WILL BE CORRECTED. WITHOUT LIMITING THE FOREGOING, CLUBUP DISCLAIMS ANY WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CLUBUP OR ITS AUTHORIZED REPRESENTATIVE(S) SHALL CREATE A WARRANTY. IF YOU ARE DISSATISFIED WITH THE SITE OR SERVICES, YOUR SOLE REMEDY IS TO DISCONTINUE USING THEM.SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE LIMITATIONS ABOVE MAY NOT APPLY TO YOU.ANY REPORTS ACCESSIBLE AS PART OF THE SERVICES ARE FOR YOUR INFORMATION AND RECREATION. CLUBUP MAKES NO REPRESENTATION OR WARRANTY THAT USE OF THE SITE OR SERVICES WILL IMPROVE THE GOLF PLAY OF ANY USER.
LIMITATIONS OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL CLUBUP OR ANY OF ITS OWNERS, MEMBERS, MANAGERS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, OR REPRESENTATIVES BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SITE OR THE SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF CLUBUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL CLUBUP’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF USD $10.00 OR THE FEES PAID BY YOU FOR ACCESS TO THE SITE AND SERVICES, IF ANY, DURING THE PREVIOUS 12-MONTH PERIOD, WHICHEVER IS GREATER. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE-STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. GOLF IS A GAME OF OPEN AND OBVIOUS DANGERS. CLUBUP IS NOT RESPONSIBLE IN ANY MANNER FOR ANY PERSONAL INJURIES OR PROPERTY DAMAGE SUSTAINED BY USERS OF THE SITE AND SERVICES, OR ANY OTHER PERSONS.
Indemnification
You agree to: (a) defend, at ClubUp’s request, ClubUp and its owners, members, managers, employees, contractors, agents, licensors, and/or representatives (collectively, the “Indemnified Parties”) against any action or suit that arises out of your use or misuse of the Site, its content or Services, any transaction or other dealings in which you and any other user or other third party are involved and/or your breach of any of your representations, warranties or covenants under these Terms of Use; and (b) indemnify and hold harmless the Indemnified Parties for all settlement amounts or damages, liabilities, costs and/or expenses (including, without limitation, attorneys’ fees) awarded or arising out of such a claim. ClubUp reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you will assist and cooperate with ClubUp in asserting all available defenses.
Jurisdictional Issues; No Export
The Site is operated out of the United States and ClubUp services, materials, products, offers, and information appearing on the Site are intended for U.S. users. The Site may not be available to users outside of the United States. ClubUp makes no representation that materials or information on the Site are appropriate or available for use outside of the United States, and access to them from jurisdictions where their content is illegal is prohibited. Those who choose to access the Site outside of the United States do so at their own initiative and are responsible for compliance with applicable local laws. You may not use or export any materials on the Site in violation of United States’ or any other jurisdiction’s export, re-export, or import laws and regulations.
Changes to these Terms of Use, Site, Services
ClubUp reserves the right to modify these Terms of Use, and to add new or additional terms or conditions on your use of the Site or Services, for any reason, without notice, at any time. Such modifications and additional terms and conditions will be effective immediately and incorporated into these Terms of Use upon posting of revised Terms of Use, or other terms, as applicable, on the Site. You are free to discontinue use of the Site and Services at any time, provided that you are responsible for any payments due prior to your discontinuance. Your continued use of the Site and Services after any modification to their applicable terms will be deemed acceptance of the then-current terms (including then-current version of these Terms of Use). ClubUp may modify or discontinue providing the Site or Services, in whole or in part, at any time, for any reason, without prior notice.
Copyright Notice
If you believe that any content available through the Site or the Services infringes a copyright claimed by you, please contact ClubUp at contact@clubup.com
Governing Law; Arbitration Agreement & Waiver of Certain Rights
The laws of the State of North Carolina, U.S.A., excluding its conflicts of law rules, govern these Terms of Use, your use of the Site, its content, and Services. Your use may also be subject to other local, state, national or international laws. You irrevocably consent to binding arbitration under the rules of the American Arbitration Association in Winston-Salem, North Carolina, USA to resolve any dispute in connection with these Terms of Use or your use of the Site and Services. YOU HEREBY CONSENT TO WAIVE ANY RIGHT TO A TRIAL BY JURY FOR SUCH A DISPUTE, AND THAT DISPUTES WILL NOT BE ARBITRATED ON A CLASS OR REPRESENTATIVE BASIS, SO YOU WILL NOT PARTICIPATE AS A CLASS REPRESENTATIVE OR MEMBER OF A CLASS OF CLAIMANTS IN ANY DISPUTE WITH CLUBUP. The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. You and we agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies. This arbitration agreement does not preclude you or we from seeking action by federal, state, or local government agencies. In addition, you and we retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with these Terms of Use, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms of Use.Any action relating to the use of the Site or any transaction with ClubUp must be brought in the state or federal courts located in the County of Forsyth, North Carolina, USA. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.
Other Provisions
Effective Date: February 1, 2021
Please read these Terms of Use carefully before downloading, accessing or using the ClubUp mobile application (the “App”) operated by ClubUp, LLC (“us”, “we”, or “our”) and using any of our services provided via the App (the “Services”). Your access to and use of the App and our Service is conditioned upon your acceptance of and compliance with these Terms of Use. These Terms of Use apply to all visitors, users and others who wish to access or use the App and Services.
Acceptance; Privacy Policy
By accessing or using the App and the Services you agree to be bound by these Terms of Use, and you represent and warrant that you are at least 13 years of age, and that if you are a minor under the age of majority in your jurisdiction of residence, your parent or legal guardian has signed a separate Caddie Agreement with us on your behalf. If you are a non-minor in your jurisdiction of residence, you represent and warrant that you are fully able and competent to enter into the terms, conditions, representations and warranties set forth in these Terms. If you disagree with any part of the terms then you do not have permission to access the App or use our Service. Along with these Terms of Use, please read our Privacy Policy and refer to it before you submit any personal information to the App. The Privacy Policy is hereby incorporated and made part of these Terms of Use.
Purpose
This App is for caddies. Caddies may use the App to accept engagements from golfers to assist golfers with a round of golf at a mutually agreed date and time at a mutually agreed golf course. As a caddie, you understand and agree that you are an independent contractor and not an employee, representative or agent of ClubUp or of the golfer you assist. Both you, as the caddie, and the golfer you assist, are each required to follow all applicable rules and instructions of the golf courses at which play occurs, including safety guidelines. Once you accept an engagement to assist a golfer and schedule the date/time and location of play, in the event that you will be delayed or need to reschedule, you may do so through the App up to 24 hours in advance of the time of play. We encourage you not to reschedule or cancel on shorter notice than 24 hours, but if necessary to do so on less than 24 hours notice, you must contact ClubUp as directed through the App or otherwise, which contact may be by phone. The App does not permit short notice changes. We encourage you to keep all appointments when at all possible; a good reputation enhances demand for your services.
Use of App
You may not copy, reproduce, distribute, transmit, display, perform, publish, license, modify, translate, adapt, create derivative works from, transfer, sell or otherwise exploit the App, the Services, or any content, information, software, products or obtained from the App or Services without our prior written permission in each instance. You may view and display the App and use the Services solely for your own internal, noncommercial, lawful use, subject to the expressly stated restrictions or limitations relating to specific material on the App, and such other additional terms and conditions or agreements as ClubUp may require you to agree to as a condition to use such material, if any, which are incorporated into these Terms of Use by this reference. If you make other use of the App or Services, except as otherwise permitted above, you may violate copyright and other laws of the United States and other countries, as well as applicable state laws and may be subject to liability for such unauthorized use.
Limits on Use
You may not (a) decompile, disassemble or reverse engineer the App, its content, the Services or any portion of the App or Services, or (b) attempt to gain unauthorized access to the App, the Services, other user accounts or any other computer systems, software, or social media or online or mobile platforms linked to or through the App. You agree that you will not use the App or Services in any manner that could damage, disable, overburden, or impair the App or interfere with any other party’s use and enjoyment of the App. You may not obtain or attempt to obtain any materials or information from the App through any means not intentionally made available or provided for through the App. Additionally, to promote a positive, useful and safe user experience across our users, you may not use the App or Services to: violate any law or regulation; violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights; post or share anything that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, or otherwise objectionable; send unsolicited or unauthorized advertising or commercial communications, such as spam; engage in spidering or harvesting, or participate in the use of software, including spyware, designed to collect data from the App; transmit any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems; stalk, harass, or harm another individual; impersonate any person or entity or perform any other similar fraudulent activity, such as phishing; use any means to scrape or crawl any web pages contained in the App; or advocate, encourage, or assist any third party in doing any of the foregoing.
Intellectual Property
ClubUp and its licensors own all right, title and interest in and to the App, all the text, content, graphics, interfaces, code and materials thereon, the look and feel, selection and arrangement, design and organization of the App, and the compilation of the content, code, data and materials on the App, including but not limited to all intellectual property and proprietary rights therein. Your use of the App or Services does not grant to you ownership in or rights to of any of the foregoing. The App is copyrighted as a collective work under the United States’ and other copyright laws, and is the property of ClubUp. The collective work includes works that are licensed to ClubUp. Unless otherwise indicated on the App, displayed trademarks, corporate logos, services marks, trade names and emblems (collectively, the “Marks”) are subject to the trademark rights of, and are proprietary to, ClubUp, its licensors, partners or affiliates. ClubUp does not grant any license or other authorization to use the Marks except through a separate written license agreement.
Caddie Feedback. ClubUp may, but is not required, to share with you feedback from the golfers whom you assist. You understand that in the interest of candor, golfers submit feedback anonymously.
Unsolicited Submissions
Any unsolicited information, remarks, suggestions, ideas, graphics, or comments, including comments to improve our App or Services, whether submitted to us in person, by phone, email, upload, or otherwise (“Unsolicited Submissions”), is non-confidential, and automatically becomes ClubUp’s property upon receipt, without any compensation to you. We have no obligation to review or use any Unsolicited Submissions or to keep them confidential, but if we elect to use them, we are free to use and repurpose such Unsolicited Submission for any purpose. Specifically, we are free to use any ideas or concepts contained in any such Unsolicited Submission for any purpose whatsoever, without any compensation to you. ClubUp does not waive any rights it may have to similar or related ideas previously known to it or developed by its employees and representatives, or obtained from sources other than you.
Password Security. A user ID and password are required to access the Services through the App. You have the option to change your password. You are solely responsible for maintaining the confidentiality of any user ID and password you use to access the Services or any other portions of the App and are fully responsible for all activities that occur under your password or account. You agree (i) to notify us immediately of any unauthorized use of your password or account or any other breach of security, and (ii) to ensure that you exit from your account at the end of each session. ClubUp is liable for any loss or damage arising from your failure to comply with this provision.
Payments
Payment due to you is collected from the golfer you assist after the round of golf with which you assisted is completed and remitted to you less ClubUp’s then-current fee for having provided you with the Services. Payment is collected from the golfer with 24 hours, but it may take longer for the payment to show up in your bank account based on your individual bank’s processing times. ClubUp uses Stripe, an independent payment processor, to remit golfers’ payments to caddies (less ClubUp’s fee). In order to receive such payments, you must agree to the terms of the Stripe Connected Account Agreement. If you do not agree to such terms, no payments may be made to you, so please discontinue use of the App immediately and do not accept any engagements with golfers through the App. ClubUp has no responsibility to you in the event that a golfer’s payment card is declined or for any other circumstances under which a golfer fails to make payment. For more information on how your personal information is used in connection with payment processing, please review our Privacy Policy.
NO WARRANTY; DISCLAIMERS OF WARRANTIES
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APP AND SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APP AND ITS CONTENT AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND CLUBUP HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APP, ITS CONTENT, AND THE SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT AND/OR OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. CLUBUP DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APP, THAT THE FUNCTIONS OR CONTENT CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY OR THROUGH, THE APP WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APP WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE APP WILL BE CORRECTED. WITHOUT LIMITING THE FOREGOING, CLUBUP DISCLAIMS ANY WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CLUBUP OR ITS AUTHORIZED REPRESENTATIVE(S) SHALL CREATE A WARRANTY. IF YOU ARE DISSATISFIED WITH THE APP OR SERVICES, YOUR SOLE REMEDY IS TO DISCONTINUE USING THEM.SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE LIMITATIONS ABOVE MAY NOT APPLY TO YOU.
LIMITATIONS OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL CLUBUP OR ANY OF ITS OWNERS, MEMBERS, MANAGERS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, OR REPRESENTATIVES BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APP OR THE SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF CLUBUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL CLUBUP’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF USD $10.00 OR THE FEES PAID BY YOU FOR ACCESS TO THE APP AND SERVICES, IF ANY, DURING THE PREVIOUS 12-MONTH PERIOD, WHICHEVER IS GREATER. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE-STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.GOLF IS A GAME OF OPEN AND OBVIOUS DANGERS. CLUBUP IS NOT RESPONSIBLE IN ANY MANNER FOR ANY PERSONAL INJURIES OR PROPERTY DAMAGE SUSTAINED BY USERS OF THE APP AND SERVICES, OR ANY OTHER PERSONS.
Indemnification
You agree to: (a) defend, at ClubUp’s request, ClubUp and its owners, members, managers, employees, contractors, agents, licensors, and/or representatives (collectively, the “Indemnified Parties”) against any action or suit that arises out of your use or misuse of the App, its content or Services, any transaction or other dealings in which you and any other user or other third party are involved and/or your breach of any of your representations, warranties or covenants under these Terms of Use; and (b) indemnify and hold harmless the Indemnified Parties for all settlement amounts or damages, liabilities, costs and/or expenses (including, without limitation, attorneys’ fees) awarded or arising out of such a claim. ClubUp reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you will assist and cooperate with ClubUp in asserting all available defenses.
Jurisdictional Issues; No Export
The App is operated out of the United States and ClubUp services, materials, products, offers, and information appearing on the App are intended for U.S. users. The App may not be available to users outside of the United States. ClubUp makes no representation that materials or information on the App are appropriate or available for use outside of the United States, and access to them from jurisdictions where their content is illegal is prohibited. Those who choose to access the App outside of the United States do so at their own initiative and are responsible for compliance with applicable local laws. You may not use or export any materials on the App in violation of United States’ or any other jurisdiction’s export, re-export, or import laws and regulations.
Changes to these Terms of Use, App, Services
ClubUp reserves the right to modify these Terms of Use, and to add new or additional terms or conditions on your use of the App or Services, for any reason, without notice, at any time. Such modifications and additional terms and conditions will be effective immediately and incorporated into these Terms of Use upon posting of revised Terms of Use, or other terms, as applicable, on the App. You are free to discontinue use of the App and Services at any time. Your continued use of the App and Services after any modification to their applicable terms will be deemed acceptance of the then-current terms (including then-current version of these Terms of Use). ClubUp may modify or discontinue providing the App or Services, in whole or in part, at any time, for any reason, without prior notice.
Copyright Notice
If you believe that any content available through the App or the Services infringes a copyright claimed by you, please contact ClubUp at contact@clubup.com
Governing Law; Arbitration Agreement & Waiver of Certain Rights
The laws of the State of North Carolina, U.S.A., excluding its conflicts of law rules, govern these Terms of Use, your use of the App, its content, and Services. Your use may also be subject to other local, state, national or international laws. You irrevocably consent to binding arbitration under the rules of the American Arbitration Association in Winston-Salem, North Carolina, USA to resolve any dispute in connection with these Terms of Use or your use of the App and Services. YOU HEREBY CONSENT TO WAIVE ANY RIGHT TO A TRIAL BY JURY FOR SUCH A DISPUTE, AND THAT DISPUTES WILL NOT BE ARBITRATED ON A CLASS OR REPRESENTATIVE BASIS, SO YOU WILL NOT PARTICIPATE AS A CLASS REPRESENTATIVE OR MEMBER OF A CLASS OF CLAIMANTS IN ANY DISPUTE WITH CLUBUP. The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. You and we agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies. This arbitration agreement does not preclude you or we from seeking action by federal, state, or local government agencies. In addition, you and we retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with these Terms of Use, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms of Use.Any action relating to the use of the App or any transaction with ClubUp must be brought in the state or federal courts located in the County of Forsyth, North Carolina, USA. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.
Other Provisions
