NOTICE: ALL TRANSACTIONS BETWEEN VIEWLICITY USA INC., A DELAWARE CORPORATION (“VIEWLICITY”) AND THE CUSTOMER NAMED IN THE APPLICABLE CONTRACT (“CUSTOMER”) (EACH, A “PARTY”, AND TOGETHER, THE “PARTIES”), AND ALL DOCUMENTS PERTAINING TO SUCH TRANSACTIONS, ARE SUBJECT TO AND CONDITIONED UPON THESE TERMS AND CONDITIONS OF SALE (“TERMS AND CONDITIONS”) AND THESE TERMS ARE INCORPORATED BY REFERENCE INTO AND ARE A PART OF ALL TRANSACTIONS BETWEEN VIEWLICITY AND CUSTOMER. NO TERM CONTAINED IN ANY CUSTOMER CORRESPONDENCE OR ANY SALES DOCUMENTS ISSUED BY CUSTOMER, OTHER THAN CUSTOMER’S ACCEPTANCE OF THESE TERMS, SHALL BECOME A PART OF THE TRANSACTION BETWEEN THE PARTIES OR BIND VIEWLICITY.
1. Definitions
The following capitalized terms shall have the meaning set forth below. Other defined terms (whether capitalized or not) used in these Terms and Conditions shall have the meaning set forth elsewhere in these Terms and Conditions:
“Affiliate”means, with respect to a Party, an entity that, directly or indirectly, controls, is controlled by, or is under common control with such Party.
“Authorized User” means Customer and Customer’s employees, consultants, contractors, customers, clients, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to these Terms and Conditions, and (ii) for whom access to the Services has been purchased hereunder.
“Ball Tracking Services”means access to a ball tracking software service (including certain data storage as required for ordinary use of Ball Tracking Services) as made available by Viewlicity via the internet.
“Collateral” has the meaning set forth in Section 3.2 of these Terms and Conditions.
“Contract” means these Terms and Conditions and any applicable Sales Documents issued by Viewlicity in connection with the Products or Services, in each case after an Offer has been accepted by Viewlicity.
“Consumer” means a consumer, as such term is defined under the Magnuson-Moss Warranty Act.
“Contractual Software” means Viewlicity proprietary augmented reality software for golf putting practice in object code, as it is included and / or integrated in Products and described in the Contract, together with all updates thereto. The term Contractual Software shall not include software provided as a service, including, without limitation, ball tracking software made available in connection with the Ball Tracking Services.
“Customer Data” means information, data, and other content, in any form or medium, that is submitted, uploaded, or otherwise transmitted by or on behalf of Customer to the Ball Tracking Service, excluding any data derived therefrom by Viewlicity.
“Green” means a stand-alone indoor putting green developed by Viewlicity and any other stand-alone indoor putting green distributed by Viewlicity for use in conjunction with the Contractual Software and Ball Tracking Services.
“Initial Term” has the meaning set forth in Section 6.2 of these Terms and Conditions.
“Invitation”means, as applicable, (i) a Viewlicity order form, as provided by Viewlicity to Customer via email or other means, and (ii) any website listing published by Viewlicity on the PuttView Online Store, including all information and provisions associated therewith.
“Products” means any Viewlicity products, including PuttView Indoor Products and PuttView X, and any other goods provided by and sold by Viewlicity. A Product may consist of several products, including third party products, which are combined to form one integrated Product.
“PuttView Indoor Product(s)” means the indoor augmented reality system(s) for putting practice, including any Green, projector, computer, tablet or touchscreen, ball tracking camera and Wi-Fi-router, as described on https://www.puttview.com. The term PuttView Indoor Product(s) shall not include PuttView X.
“PuttView Online Store” means Viewlicity’s online store for Products and Services.
“PuttView X”means the augmented reality system known as PuttView X, including augmented reality glasses, Contractual Software, a portable Wi-Fi router, heat and sun protection and a portable case, as specified in the product description on https://www.puttview.com.
“Renewal Period(s)”has the meaning set forth in Section 6.2 of these Terms and Conditions.
“Sales Documents” means any quotation, proposal, Invitation, statement of work, service request, purchase order, order acceptance, and invoice issued in writing, including via email or electronically, by an authorized representative of Viewlicity.
“Services” means any services, including Support and Ball Tracking Services, provided by Viewlicity.
“Subscription”has the meaning set forth in Section 6.1 of these Terms and Conditions.
“Support” means the support services provided by Viewlicity to Customer as specified in Section 7 of these Terms and Conditions.
2. Order Process; Additional or Conflicting Terms
2.1 After Viewlicity submits an order form constituting an Invitation to Customer via email or by any means other than on the PuttView Online Store, Customer extends an offer to Viewlicity by (a) completing and signing the order form provided by Viewlicity related to such Invitation or (b) paying the deposit related to such Invitation (each, an “Offer”). Similarly, when Customer submits an order on the PuttView Online Store, Customer submits an Offer to Viewlicity. After receipt of an Offer from Customer, Viewlicity will communicate order acceptance by sending Customer confirmation in writing (email being sufficient). Viewlicity reserves the right, in its sole discretion, to put a time limit on any Invitation or to reject any Offer before communicating order acceptance to Customer. Once Viewlicity has communicated order acceptance, but no later than upon delivery, a Contract is formed.
2.2 Each Contract will be subject to and governed solely by these Terms and Conditions and any applicable Sales Documents issued by Viewlicity in connection with the Products and Services. These Terms and Conditions supersede and control any inconsistent terms and conditions proposed by Customer or contained in any purchase order, service request, commercial document, Customer’s website or other correspondence from Customer, regardless of any knowledge Viewlicity may have of such terms, and such terms will not bind Viewlicity or be applicable to any transaction (even if Customer’s purchase order is referenced in the Sales Documents). If any of these Terms and Conditions conflict with the Sales Documents, the specific terms in the applicable Sales Documents will prevail over these Terms and Conditions to the extent of such conflict. The applicable terms of any revised or later-issued Sales Document will control over such terms in a prior, similar Sales Document. No other changes, modifications, amendments or waivers of any terms in a Contract will apply to Viewlicity unless in writing and signed by an authorized representative of Viewlicity. No revisions to a Contract or to these Terms and Conditions shall be valid unless in writing and signed by an authorized representative of Viewlicity.
3. Product Delivery; Security Agreement
3.1 Viewlicity shall deliver to Customer the Products pursuant to the Contract. In the event that a Contract does not specify delivery terms, all deliveries of Products shall be made EXW (Incoterms 2020), Viewlicity’s facility. All shipment dates are estimates only and are in no way delivery timeline guarantees by Viewlicity; the ultimate delivery date and time in transit is solely dependent on Customer’s location and Viewlicity will not be liable for any delay or failure to deliver all or any part of any order for any reason.
3.2 Customer hereby grants Viewlicity a continuing first priority purchase money security interest in all Products sold or delivered to it and the proceeds of Products (collectively, “Collateral”) to secure the full payment of the purchase price of Products and all other obligations of Customer arising out of a Contract. Customer hereby authorizes Viewlicity to execute, deliver, and file, on Customer’s behalf, all financing statements, continuation statements, and other documents necessary or desirable to establish, perfect, maintain, preserve, and enforce Viewlicity’s security interest in the Collateral. Customer shall maintain adequate insurance against casualty, loss, fire, or theft of Collateral for so long as the security interest is in effect.
4. PuttView Indoor Product Installation; Training; Additional Services
4.1 Unless otherwise explicitly agreed between the Parties, Viewlicity shall not install the PuttView Indoor Product purchased by Customer. However, in case that the Parties explicitly agree on such installation by Viewlicity, the following provisions of this Section 4.1 shall apply:
4.1.1 Viewlicity shall install the PuttView Indoor Product at the location agreed to by the Parties. Installation may include the measuring of a newly installed Green or existing putting green at Customer’s facility, wiring the PuttView Indoor Product, aligning and calibrating the projectors, installing Contractual Software, and executing the function tests with the entire PuttView Indoor Product.
4.1.2 Customer shall support, at its own expense, Viewlicity in all necessary installation and set-up measures that are required for the PuttView Indoor Product to function correctly, including, without limitation, creating the conditions necessary for installing and operating the Green (if purchased by Customer) and any other PuttView Indoor Product. This shall include, but not be limited to, the following measures: preparing the ceiling for affixing the projectors, laying the required electrical connections (power, wired internet), and installing lighting within the limits required for operating the PuttView Indoor Product (e.g., by installing window blinds or dimmers for the artificial lighting). In order to mount the projectors to a wall or ceiling, Customer agrees to provide a scaffold or an electric lift on site for easy access to the ceiling.
4.1.3 Upon installation, Viewlicity shall provide basic training for the group of people that are designated by Customer to use the PuttView Indoor Product. Additional training may be provided through manuals, video content, or remote training sessions.
4.1.4 Customer shall subsequently accept due installation and functioning of the PuttView Indoor Product and confirm such acceptance in writing using the form for acceptance provided by Viewlicity.
4.2 Customer must ensure that the PuttView Indoor Product is consistently operated by a trained person qualified to use the PuttView Indoor Product or that a trained person qualified to use the PuttView Indoor Product supervises the use thereof.
5. Granting of Rights to Contractual Software
5.1 Upon full payment of the purchase price pursuant to Section 11 of these Terms and Conditions, Customer shall receive a non-exclusive right to use the Contractual Software. If Customer has purchased a PuttView Indoor Product, Customer may use such Contractual Software only together with the hardware as delivered by Viewlicity as part of the PuttView Indoor Product. If Customer has purchased PuttView X, Customer may use the Contractual Software only together with and as part of PuttView X as delivered and instructed by Viewlicity.
5.2 Customer shall NOT: (a) modify, change, enhance or prepare derivative works of the Contractual Software except as expressly permitted by Viewlicity; (b) reverse engineer, disassemble or decompile the Contractual Software; (c) remove, obscure, or alter any notice of patent, copyright, trade secret, trademark, or other proprietary rights notices; (d) use the Contractual Software to make available the Contractual Software and/or provide services to third parties, or otherwise use the same on a “service bureau” basis; or (e) use the Contractual Software, or allow the transfer, transmission, export, or re-export of the Contractual Software, in violation of any export control laws or regulations.
5.3 Any standalone distribution of the Contractual Software is prohibited. Customer shall inform Viewlicity before reselling any Products.
6. Subscription
6.1 The purchase of Products shall include twelve (12) months of Support for Contractual Software included in such Products (as described in Section 7 of these Terms and Conditions) (hereinafter “Subscription”). If Customer purchases a PuttView Indoor Product, Subscription shall also include Ball Tracking Service per Section 6.2.
6.2 If Customer purchases a PuttView Indoor Product, Subscription shall begin on the day on which Ball Tracking Services are made available to Customer. Subscription shall continue for twelve (12) months (“Initial Term”). The term of Subscription shall automatically renew for additional twelve-month term(s) (“Renewal Period(s)”), unless either Party terminates Subscription at the end of the then current term by giving one (1) month’s prior written notice to the other. Moreover, during any Renewal Period either Party may terminate Subscription at any time upon one (1) month’s written notice.
6.3 If Customer allows Subscription to lapse for any period of time, and Customer subsequently elects to re-subscribe to Subscription, Customer hereby agrees to pay Viewlicity a reinstatement fee equal to the total fees that would have been due for Subscription during the non-subscription period.
7. Support
7.1 Support shall include email support and may, at the sole discretion of Viewlicity, include telephone support and remote web support. Moreover, Support may include, in Viewlicity’s sole discretion, the delivery of Contractual Software updates, patches and workarounds which are generally made available by Viewlicity during the Initial Term and any Renewal Period. Viewlicity may deliver such updates, patches and workarounds by making them available to Customer for download via the internet or similar method. Support does not include general training, import of Customer Data, or an adaptation of the Contractual Software.
7.2 Support is provided Monday to Friday from 6:00 am to 3:00 pm Eastern Standard Time, except for public holidays.
7.3 In the event that Customer purchases hardware services from Viewlicity, Support shall, in addition to the Services described in this Section 7, include the delivery of certain hardware replacement parts as specified by Viewlicity in writing.
8. Ball Tracking Services
8.1 Subject to and conditioned on Customer’s payment of Fees and compliance with the Contract, Viewlicity hereby grants Customer a non-exclusive, non-transferable right to access and use the Ball Tracking Services during the term of the related Subscription per Section 6.2, solely for use by Authorized Users in accordance with the terms and conditions of this Section 8, provided that Customer purchases a PuttView Indoor Product. Such use is limited to Customer’s internal use. Viewlicity shall, subject to the network availability as set forth in Section 8.2, make available to Customer Ball Tracking Services, including the network links or connections and as may further be specified in the Contract, on a server operated by Viewlicity or a third party authorized by Viewlicity to host the Ball Tracking Service (“Server”). Viewlicity may at any time reasonably amend, modify, update or upgrade the Ball Tracking Services. Viewlicity is not obligated to install or maintain an internet connection from Customer’s computer to the exchange node operated and designated by Viewlicity or its subcontractors. Subject to reasonable prior notice to Customer, Viewlicity or its subcontractors may change such exchange node at any time.
8.2 The Ball Tracking Services are available for the vast majority of each calendar month except for Scheduled Maintenance. “Scheduled Maintenance” means maintenance of the Ball Tracking Service, which may delay or interrupt Customer’s use of the Ball Tracking Services, and the necessity of which is known to Viewlicity in advance of its occurrence. Where commercially reasonable, Viewlicity shall schedule Scheduled Maintenance during periods of non-peak usage among its buyer base.
8.3 Viewlicity acknowledges that, as between Viewlicity and Customer, Customer owns all right, title, and interest, including any intellectual property rights, in and to the Customer Data. Customer hereby grants to Viewlicity a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Viewlicity and its Affiliates to provide the Ball Tracking Services to Customer and to continue to research and develop its current technologies and improve its offerings.
8.4 Customer shall use suitable measures to secure the Ball Tracking Services, including any respective login data, against access by unauthorized third parties. If Customer becomes aware of any unauthorized access to the Ball Tracking Services, Customer shall promptly notify Viewlicity and provide Viewlicity with assistance, as reasonably requested, to stop or remedy such access. In the event Customer cannot satisfactorily resolve any issue of unauthorized access to Ball Tracking Services, Viewlicity may, notwithstanding any other remedies it may have under the Contract or relevant law, suspend Customer’s access to the Ball Tracking Services until the issue is resolved.
8.5 Customer shall use the Ball Tracking Service only in accordance with these Terms and Conditions and any relevant laws. Customer shall in particular comply with criminal, data protection, competition and copyright laws. Customer shall not import damaged or illegal data or misuse the Ball Tracking Service in any way.
8.6 Customer shall not use the Ball Tracking Services (i) to provide any content into the storage space made available on the Server that contains or constitutes illegal or unlawful content or promotes hate or incitements to violence, or (ii) to perform any act which, directly or indirectly, causes any “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other like form of solicitation. If Customer becomes aware of any violation of this Section 8.6, Customer shall immediately notify Viewlicity and provide Viewlicity with assistance, as reasonably requested, to stop or remedy the violation. In the event that Customer’s use of the Ball Tracking Services adversely impacts the Ball Tracking Services or the systems or content of any other customer of Viewlicity or third party provider, or may subject Viewlicity or any third party to liability, Viewlicity may, in its sole discretion and in conjunction with any other remedies it may have under the Contract or under statutory laws, suspend Customer’s access to the Ball Tracking Services until the issue is resolved.
8.7 After the date of termination or expiration of the Ball Tracking Services (the “Termination Date”) Customer has no access to the Customer Data. Within two (2) weeks of the Termination Date, Customer may upon Customer’s request retrieve Customer Data, free of charge, in a commonly used and machine-readable format. If no such request is made within such term, Viewlicity may delete all Customer Data completely and permanently, except to the extent that applicable laws require Viewlicity to retain certain Customer Data.
9. Property Rights in Results of Services
9.1 Title to and ownership of any software, documentation, utilities, tools, methodologies, specifications, techniques, data, data models and other materials or know-how developed by Viewlicity during and in the course of performing Services for Customer (including, without limitation, installation services in accordance with Section 4 above) together with the intellectual property rights therein shall vest in Viewlicity. Further, title to and ownership of all systems, software, tools, utilities, methodologies, specifications, techniques, data, data models and other materials, know-how and hardware owned by Viewlicity or in the possession of Viewlicity prior to the performance of such Services and used by Viewlicity in connection with the Services together with the intellectual property rights therein, shall remain with Viewlicity whether or not they are specifically adapted by Viewlicity for use by Customer.
9.2 If Viewlicity owes to Customer a certain result, including any related software, documentation, specifications, data model and other materials, Viewlicity grants Customer, upon payment of the corresponding remuneration, a world-wide, perpetual, non-exclusive and non-transferable license to use such result as integrated in or, as applicable, in connection with, the respective Contractual Software.
10. Subcontractors
Viewlicity is entitled to engage qualified subcontractors, including Viewlicity Affiliates, for or related to the provision of installation services, Support and any other Services.
11. Purchase Price and Licensing Fees; Taxes
11.1 The purchase price for Products and Services is set forth in the Contract. Unless explicitly otherwise provided in the Contract, payment shall be due within fourteen (14) days of Customer’s receipt of invoice.
11.2 The payment of Subscription fees for any Renewal Period shall be due in advance on the first (1st) day of such Renewal Period. In the event that Subscription terminates within a Renewal Period, Viewlicity shall reimburse to Customer Subscription fees for the period after the effective date of termination pro rata temporis.
11.3 Viewlicity has the right to adjust the amount of Subscription fees annually. In the event of an adjustment, Viewlicity shall take into account any cost changes that have occurred in the meantime in the area of wages, salaries, IT services, and general costs. Viewlicity shall provide Customer with thirty (30) days’ written notice in advance of the effective date of any change in such fees.
11.4 Any payment shall be paid to the account referred to in the applicable invoice.
11.5 Customer may only set-off claims, and only exercise rights of retention due to claims, which are undisputed or recognized by a non-appealable judgment.
11.6 All amounts invoiced under the Contract exclude any sales, use, excise, import (i.e., duties or tariffs), export, value added, or other similar taxes or governmental charges, including any related penalties and interests however designated, with respect to the sale of Products or provision of Ball Tracking Services or Services under the Contract, other than taxes based on the net income of Viewlicity (collectively, “Taxes”). Customer hereby agrees to pay all Taxes, even if billed after termination or expiration thereof, and will reimburse, indemnify and hold harmless Viewlicity from all liabilities for Taxes. If Customer is exempt from federal or state income tax, or certain state and local sales and use taxes, Customer must provide Viewlicity with appropriate documentation of such exemptions upon Customer’s Offer.
12. Transfer of Rights to Development Ideas
12.1 While the Products and Services are being used, new development ideas for further enhancing or supplementing the PuttView Indoor Products, Ball Tracking Services and/or PuttView X may arise. In accordance with copyright law, patent law, design and related property rights, including know-how, Customer shall transfer all assignable rights of ownership and use, to which it is entitled, to development ideas generated during collaboration and to developments arising therefrom for all types of use to Viewlicity for economic and intellectual property exploitation without restrictions in terms of time, territory or content. This shall especially include but is not limited to all creations that constitute a protected work as defined under copyright law. This transfer of rights especially comprises the right of reproduction, i.e., the right for the full or partial permanent or temporary reproduction of the work with any means and in any form, the right of distribution including the rental right, the right of exhibition, recital, performance and demonstration, the right to broadcast (including satellite broadcasting and cable retransmission), the right of communication to the public (including the display through video or audio recording, via online services, the internet or radio broadcasts) as well as the right to make adaptations and the right to advertise.
12.2 With the foregoing transfer of rights, the Parties are pursuing the objective of allowing Viewlicity to receive the full rights of use to the development ideas and to the developments arising therefrom to the greatest extent wherever possible. The transfer of rights also covers the right to exploit the development also in all unknown types of use and it extends accordingly as well to the exploitation of all currently unknown rights of use, unlimited in terms of territory, time and content. The foregoing transfer of rights likewise includes Viewlicity’s right to grant third parties exclusive or non-exclusive rights of use to the development without Customer’s consent and to transfer rights of use to third parties without Customer’s consent. Customer shall grant Viewlicity the unlimited right to produce the respective subject matter of the right and to place it on the market. Viewlicity is not under any obligation to register or to exploit rights.
13. Marketing
13.1 If Customer purchases a Product, Viewlicity is entitled to demonstrate to interested parties how the Product is practically applied at Customer’s location. To this end, such demonstration dates shall be agreed upon in consultation with Customer.
13.2 Viewlicity may affix its logo in Customer’s location where the Product is installed. The installation of additional materials for marketing the Product must be coordinated with Customer.
13.3 Any publications, public relations campaigns, etc. with regard to Products and Services must be coordinated with and approved by Viewlicity in advance. Viewlicity may mention Customer’s name together with Customer’s logo on its website as a reference to Customer as well as provide the exact location where a Product is being or was used. Moreover, Viewlicity may take photos and/or videos of the installed Product and use these for its own marketing purposes. In addition, select projects may be shown on Viewlicity’s website and in other marketing materials.
14. Limited Warranties
14.1 Product Warranty. Subject to the provisions in these Terms and Conditions and in the Sales Documents, Viewlicity warrants to Customer that when operated in accordance with the documentation, and used within the scope of the licenses granted herein, the Product in the form originally provided by Viewlicity will perform in all material respects in accordance with Viewlicity’s published specifications for such Products, if any (the “Limited Product Warranty”) for a period of ninety (90) days after delivery of the Product to Customer (the “ProductWarranty Period”). The Limited Product Warranty is conditioned upon Customer following the claims process outlined in Section 14.5, which Viewlicity may change from time to time. This Limited Warranty extends to Customer only, and not to any resale customer of Customer or end consumer, and is non-transferable.
14.2 Customer’s sole and exclusive remedy, and Viewlicity’ sole and exclusive liability under the Limited Product Warranty is, in the first instance, for Viewlicity to use commercially reasonable efforts to correct any defects that Customer identifies in writing (including reproduceable errors of Contractual Software) during the Product Warranty Period which renders the Product materially non-conforming to the published specifications of the applicable Product, if any. If the breach is not cured within reasonable time following Viewlicity’s receipt of Customer’s notice, but within no less than thirty (30) days, Customer may withdraw from the applicable Contract and receive, subject to Customer returning the respective Products at Customer’s sole expense, a refund from Viewlicity of the purchase price and any pre-paid, unused Fees less any expenses incurred by Viewlicity in its attempt to cure, including travel, shipment, installation, and project management costs.
14.3 Ball Tracking Service Warranty. Viewlicity warrants to Customer that the Ball Tracking Services shall perform in material accordance with Viewlicity’s applicable published documentation, if any (the “Ball Tracking Limited Warranty”). Viewlicity does not warrant that the Ball Tracking Services will be uninterrupted, error-free, or secure, or that any data stored or transmitted through the Ball Tracking Services will be accurate or preserved without loss. Customer acknowledges that the Ball Tracking Services may be subject to limitations, delays, and other issues inherent in the use of the Internet and electronic communications. If the Ball Tracking Services fail to perform materially in accordance with the applicable documentation, and Customer notifies Viewlicity in writing within thirty (30) days of the non-conformance, Viewlicity will use commercially reasonable efforts to correct the non-conformance. If Viewlicity is unable to do so within a reasonable time but within no less than thirty (30) days, Customer’s sole and exclusive remedy shall be to terminate the affected Ball Tracking Services and receive a pro rata refund of any pre-paid, unused Fees. This remedy is exclusive and in lieu of all other remedies.
14.4 Non-Ball Tracking Services Warranty and Remedy. Viewlicity warrants to Customer that the Services other than Ball Tracking Services (e.g., installation Services) will be performed in a workmanlike manner, consistent with generally accepted industry standards, and that for a period of thirty (30) days from completion of the Services (the “Services Warranty Period” and, together with the Product Warranty Period, each a “Warranty Period”), the Services delivered under a Contract will conform in all material respects to the applicable requirements for such services in the respective Invitation (the “Services Limited Warranty” and, together with the Ball Tracking Limited Warranty and the Product Limited Warranty, collectively, the “Limited Warranties” and each, a “Limited Warranty”). Any claim relating to a breach of the Services Limited Warranty must be made in writing by Customer within the Services Warranty Period. Customer’s sole and exclusive remedy, and Viewlicity’ sole and exclusive liability for breach of the Services Limited Warranty is for Viewlicity to use commercially reasonable efforts to re-perform the non-conforming Services. If after using such commercially reasonable efforts, the applicable defects in the Services have not been corrected, at Customer’s option, Viewlicity agrees to refund the fees paid by Customer for the defective Services.
14.5 Warranty Claims. Customer must give Viewlicity detailed written notice of any Products or Services that Customer alleges do not conform to the applicable Limited Warranty, stating the alleged non-conformities (each, a “Warranty Claim”). Any Warranty Claim must be made within fourteen (14) days after Customer is aware of the alleged non-conformity and, in any event, within the applicable Warranty Period. Unless expressly stated otherwise in the Sales Documents, the Warranty Period of any software shall be limited to the term of the relevant Subscription: Contractual Software shall be limited to the Warranty Period applicable to the underlying Products, whereas Ball Tracking Services shall be limited to the Subscription term per Section 6.2. The Limited Warranty expires when, and no claims made be made after, the Warranty Period ends. Customer will follow Viewlicity’s then-current Warranty Claims process. At Viewlicity’s request, Customer will allow Viewlicity access to the Products to inspect the Products or Services and evaluate the alleged non-conformity.
14.6 The Limited Warranties do not cover: (a) accessories or peripherals (including putting greens) not manufactured by Viewlicity, which shall be subject only to any transferable warranty the manufacturer of such product may issue; (b) damage to Products during or after delivery; (c) damage caused by normal wear and tear; (d) user error, including unsuitable or improper use; (e) use under circumstances or resale for uses exceeding Viewlicity’s specifications or limitations or contrary to any instructions or information from Viewlicity; (f) unauthorized use, or unauthorized or improper installation, repair, modification, or alteration; (g) improper storage; (h) defects or failures of Products sold or Services performed arising from, in whole or part, Customer’s instructions, information, design, plans, or other non-Viewlicity specifications; (i) faulty or negligent treatment; (j) any warranties or representations given by Customer on resale of Products or use of Services; (k) repackaging or rebranding (l) modification or alteration of Products or Services; (m) abuse or accidents; (n) faulty assembly or commissioning by Customer or third parties related to Customer; (o) unsuitable operating equipment or media; (p) chemical, electrochemical, or electrical influences; (q) use of unsuitable working material; (r) damage caused by natural calamities; (s) Service finish defects due to mishandling; (t) Product warping, color discoloration, surface finish defects, or color matching; (u) improper maintenance, including unauthorized repair; or (v) non-conforming specifications or technologies caused by placement or installation of Viewlicity’s Products on top of third-party putting greens. Notwithstanding the foregoing, if the Customer is a Consumer, no Limited Warranty shall be voided due to a failure by Customer to use any particular item or service and Customer shall not be required to use any item or service manufactured or offered by Viewlicity to repair or service a Product unless such item or service is provided by Viewlicity free of charge; provided, however, that any damage caused to a Product or Service by Customer or any non-authorized third party, may void the applicable Limited Warranty.
14.7 No Limited Warranty shall apply to used or refurbished Products. Except when Viewlicity has otherwise expressly provided in the Sales Documents an express written warranty, all used or refurbished Products, and all Services related thereto are sold and performed “AS IS AND WITHOUT WARRANTY.”
14.8 Any depictions, statements, claims, advertising, technical advice, trials, projections, diagrams, samples, drawings, illustrations, and other descriptions or other information from Viewlicity or its Affiliates, applicable to Products, Services, or a Contract, whether included in catalogs, datasheets or otherwise, are descriptions or approximations only, and do not constitute any specifications, representations, warranties, or guarantees, implicitly or explicitly.
14.9 No employee, dealer, distributor, sales representative, or any other person or entity is authorized to offer any different or additional warranties or remedies, or to change the Limited Warranty, without the signature of an authorized officer of Viewlicity. No descriptions, representations and other information or claims made by an employee, dealer, distributor, sales representative, or any other person or entity affiliated with Viewlicity are binding on Viewlicity. Customer may obtain a copy of the applicable Limited Warranty by going to www.puttview.com/terms or calling +1-984-300-7888.
14.10 EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY PROVIDED IN THIS SECTION 14, VIEWLICITY MAKES NO REPRESENTATIONS OR WARRANTIES, STATUTORY OR OTHERWISE, REGARDING OR RELATING THE PRODUCTS AND ANY SERVICES, AND VIEWLICITY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS AND IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE PRODUCTS AND ANY SERVICES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. VIEWLICITY MAKES NO WARRANTY OF ANY KIND THAT THE BALL TRACKING SERVICES OR CONTRACTUAL SOFTWARE, ANY SUPPORT RELATED THERETO, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
14.11 NOTWITHSTANDING THE FOREGOING LANGUAGE IN SECTION 14.10, IF CUSTOMER IS A CONSUMER, NO IMPLIED WARRANTIES ARE DISCLAIMED; HOWEVER, SUCH IMPLIED WARRANTIES SHALL ONLY EXTEND FOR AS LONG AS THE APPLICABLE WARRANTY PERIOD. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
15. Limitation of Liability
15.1 IN NO EVENT WILL VIEWLICITY OR VIEWLICITY’S AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, WHETHER ARISING FROM THE SALE OF PRODUCTS OR PROVIDING OF SERVICES, THE INSTALLATION AND/OR SETUP OF ANY PRODUCTS, ANY TRAINING, ANY SERVICES, ANY DEFECT IN THE PRODUCTS OR SERVICES, ANY NON-CONFORMITY WITH WARRANTIES, ANY USE OR INABILITY TO USE THE PRODUCTS, OR OTHERWISE, REGARDLESS OF THE THEORY OF RECOVER, EVEN IF VIEWLICITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL VIEWLICITY OR VIEWLICITY’S AFFILIATES BE LIABLE FOR DAMAGES TO GOODS OR MATERIALS PROCESSED IN OR HANDLED WITH THE PRODUCTS. THESE TERMS CONTAIN CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES RELATING TO THESE TERMS, A BREACH OF THESE TERMS, THE SALES DOCUMENTS, THE PRODUCTS OR THE SERVICES, REGARDLESS OF THE THEORY OF RECOVERY.
15.2 IN NO EVENT WILL VIEWLICITY OR VIEWLICITY’S AFFILIATES BE RESPONSIBLE FOR ANY LOSS, LIABILITY, INJURY, OR DAMAGE ARISING OUT OF OR RELATING TO (I) IMPROPER USE OF THE PRODUCTS OR BALL TRACKING SERVICES; (II) CUSTOMER’S DETERMINATION AS TO THE SUITABILITY OR FITNESS OF THE PRODUCTS OR SERVICES FOR A PARTICULAR PURPOSE; (III) THE USE OR APPLICATION OF THE PRODUCTS OR SERVICES, ALONE OR IN CONJUNCTION WITH OTHER PRODUCTS OR SERVICES; (IV) THE NEGLIGENCE OR WILLFUL MISCONDUCT OF CUSTOMER; OR (V) FROM DEFECTS OR DEFICIENCIES IN CUSTOMER’S OTHER EQUIPMENT. ANY UNAUTHORIZED MODIFICATION, TAMPERING, OR INTERFERENCE WITH THE PRODUCTS OR THE BALL TRACKING SERVICES IS STRICTLY PROHIBITED AND WILL RESULT IN THE IMMEDIATE VOIDING OF ALL WARRANTIES AND LIABILITIES FROM VIEWLICITY.
15.3 VIEWLICITY’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF, OR RELATING TO A CONTRACT, OR PRODUCTS, OR SERVICES, OR THE USE (OR INABILITY TO USE) ANY PRODUCTS OR SERVICES, WHETHER IN WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE AMOUNT CUSTOMER PAID TO VIEWLICITY FOR THE PARTICULAR PRODUCTS OR SERVICES AT ISSUE WITHIN THE PRIOR TWELVE (12) MONTHS.
16. INDEMNIFICATION
Customer agrees to indemnify and hold harmless Viewlicity and its Affiliates, and their respective officers, directors, employees, and agents, from and against any and all claims, actions, suits, damages, liabilities, costs, obligations, and expenses (including attorneys’ fees and expenses) brought by third parties and arising out of or relating to: (a) Customer, its employees, agents, or customers’ selection, installation, setup, use of, incorporation of, modification of, or application of the Products alone or in conjunction with other products or Services; (b) any processing or modification of Products in any manner by Customer, its employees, agents, or customers; (c) claims regarding warnings or failure to warn of dangers related to Products or services; (d) any violation or failure to comply with applicable laws and regulations, including those pertaining to health and/or safety; (e) any intentional or negligent act, or misrepresentation by Customer, its employees, contractors or agents; (f) any breach of warranty or misrepresentation (express or implied) made by Customer, its employees, contractors or agents; (g) any violation, misappropriation, or infringement of any patent, trademark, copyright or other intellectual property rights of any person or entity arising out of or related to compliance with Customer’s design, specifications or instructions or Customer’s use of a Product with other goods; (h) use of a Product or Services inconsistent with or exceeding Viewlicity’s specifications, limitations or recommendations; (i) any breach by Customer of any terms of a Contract; (j) any personal injury or property damage arising out of Customer’s or its employees, contractors or agents’ acts or omissions; (k) unauthorized use or alteration of Products or (l) any personal injury or property damage sustained by Viewlicity’s employees or agents during installation of Products at Customer’s site. At Viewlicity’s request, Customer shall also defend Viewlicity and its Affiliates, and their respective officers, directors, employees and agents at Customer’s expense, against any such claims made against Viewlicity or its Affiliates, and their respective officers, directors, employees and agents.
17. CONFIDENTIALITY
17.1 “Confidential Information” means any confidential and/or proprietary information, relating to past, present or future, research, technology, know-how, ideas, inventions (whether patentable or not), concepts, designs, products, computer programs, processes, business plans, financial, operational or technical information (whether in oral, written, electronic or other form) provided by Viewlicity to Customer that is marked or otherwise identified orally or in writing as being confidential or proprietary, or that Customer knows or under the relevant circumstances surrounding the disclosure, ought reasonably to know is of a confidential or proprietary nature. Customer acknowledges and agrees that the Products, Contractual Software, Ball Tracking Services, each including its documentation, and any other work activity or material provided to Customer by Viewlicity under these Terms and Conditions and the terms of and pricing under the Contract constitute Confidential Information of Viewlicity. Confidential Information excludes information which: (a) has entered the public domain except where such entry is the result of Customer’s breach of the Contract or the breach of other obligations of confidentiality; (b) prior to disclosure hereunder was already in Customer’s possession without confidentiality restrictions; (c) subsequent to disclosure hereunder is obtained by Customer on a non-confidential basis from a third party who has the right to disclose such information; or (d) was independently developed by Customer without use of the Confidential Information of Viewlicity.
17.2 Customer shall use appropriate reasonable measures to protect the confidentiality of all Confidential Information of Viewlicity and shall not use such Confidential Information other than for the purpose of the Contract. Customer may disclose Confidential Information of Viewlicity to their affiliates, officers, directors and employees who have a need to know the Confidential Information to carry out Customer’s duties hereunder and shall not copy, disclose, convey or transfer any of the Confidential Information, or any part thereof, to any third parties without Viewlicity’s prior written consent. Customer is permitted to disclose Confidential Information of Viewlicity that is required to be disclosed by a governmental authority or applicable law, in connection with a legal or administrative proceeding provided that Customer shall: (a) promptly notify the Viewlicity of any such disclosure requirement; (b) reasonably cooperate with Viewlicity if Viewlicity seeks a protective order or other remedy in respect of any such disclosure; and (c) furnish only that portion of the Confidential Information which Customer is legally required to disclose and only in connection with such proceeding.
17.3 Viewlicity shall retain exclusive ownership of all rights, title and interest in its Confidential Information. Nothing in these Terms and Conditions is intended to grant Customer any rights in or to the Confidential Information of Viewlicity except as expressly set forth herein. All intellectual property rights, including patents, trademarks, and copyrights arising out of or in connection with the Products and provision of Services shall be the sole and exclusive property of Viewlicity and its Affiliates. Customer shall not name or designate any Viewlicity information or Product or Service in any patent application. Customer may not alter or remove, and will abide by, any patent, trademark, copyright, trade secret, proprietary or other notices, serial numbers, labels, tags, or other identifying marks, symbols or legends contained on or in a Product (including containers or packages).
18. Data Protection; Use of Customer Data
18.1 By submitting Customer Data through the Services and/or Products, Customer consents to Viewlicity, its Affiliates, or their respective service providers processing of Customer Data, including, without limitation Customer’s personal information in accordance with Viewlicity’s Privacy Policy.
18.2 Subject to Viewlicity’s Privacy Policy, Viewlicity and Viewlicity’s Affiliates (hereinafter, individually and collectively, “PuttView”) may use Customer Data for the training of artificial intelligence and possibly develop individual trainings for users of the Ball Tracking Service. Moreover, subject to Customer’s explicit consent, PuttView may download through Ball Tracking Services Customer videos for use of such videos in the training of an AI model which is designed by PuttView to further improve Ball Tracking Services. Customer shall be responsible for any such video content uploaded by Customer to Ball Tracking Services (hereinafter “AI Input”). Customer represents and warrants to have all necessary rights and permissions to share any data included in the AI Input and will reimburse, indemnify and hold harmless PuttView from all liabilities arising from Viewlicity’s use of AI Input in accordance with this Section 18.2.
19. Miscellaneous Provisions
19.1 Neither Party may assign or transfer any part of the Contract without the written consent of the other Party; provided, however, that the Contract may be assigned, without the other Party’s written consent, (a) by either Party to a person or entity that acquires, by sale, merger or otherwise, all or substantially all of such assigning Party’s assets, stock, or business, and (b) by Viewlicity to an Affiliate of Viewlicity. Subject to the foregoing, these Terms and Conditions will bind and inure to the benefit of the Parties, their respective successors and permitted assigns. Any attempted assignment in violation of this Section 19.1 will be void and of no effect.
19.2 Viewlicity may amend the Terms and Conditions upon one (1) month’s written notice (including notices via email) to Customer. The amendments shall be deemed having been approved by Customer, and apply as of their effective date proposed by Viewlicity, unless Customer has notified Viewlicity in writing of its disapproval prior to their proposed date of entry into force. In the event of Customer’s written notice of disapproval, the Contract shall, subject to either Party’s right to terminate Subscription according to Section 6.2, continue without any changes based on the previous terms and conditions.
19.3 No amendment or modification to the Terms and Conditions will be valid or binding upon the Parties unless made in writing and signed by the Parties.
19.4 Viewlicity will not be liable or responsible, nor be deemed to have defaulted under or breached a Contract, and its performance (and delivery dates and delivery periods) will be deemed extended for any failure or delay in fulfilling or performing any provision of a Contract, when such failure or delay is caused by or results from acts beyond the reasonable control of Viewlicity, its Affiliates, or either Viewlicity’s or its Affiliates’ respective subcontractors or suppliers, including the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, explosion, epidemic, or pandemic; (c) war, invasion, hostilities (whether war is declared or not), terroristic threats or acts, riot, or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect after the date of the Contract; (f) national or regional emergency; (g) strikes, labor stoppages or labor slowdowns or other industrial disturbances; (h) changes in the law; and (i) delays in obtaining or the inability to obtain labor, materials, Products or Services through usual sources at normal prices.
19.5 Unless the context requires otherwise, any reference to any law will be deemed also to refer to all amendments thereto. All words in these Terms and Conditions will be construed to be of such gender or number as the circumstances require. References in these Terms and Conditions to time periods in terms of a certain number of days mean calendar days unless expressly stated herein to be business days. The word “or” in these Terms and Conditions is disjunctive but not necessarily exclusive.
19.6 Any consent, approval or agreement required or allowed by Viewlicity may be given or withheld by Viewlicity in its sole discretion and must be in writing and signed by an authorized representative of Viewlicity to be effective. No delay or failure by Viewlicity to exercise or enforce any of its rights or remedies under a Contract will be construed as a waiver of such rights or remedies. The express waiver of any right or remedy in a particular instance will not constitute a waiver of that right or remedy in any other instance.
20. Governing Law, Jurisdiction and Dispute Resolution
20.1 Subject to Section 20.3 below, before either Party initiates any legal action or proceeding, such Party must notify the other Party of the dispute or controversy and make one or more of its executives available to meet with executives of the other Party to attempt in good faith to resolve the dispute or controversy. If the dispute or controversy has not been resolved within thirty (30) days (and in the case of a payment dispute, five (5) days) after such notice is given, either Party may initiate a legal action or proceeding.
20.2 These Terms and Conditions will be governed by and construed exclusively by the laws of the State of North Carolina, without regard to its conflict of laws principles. These Terms and Conditions shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. Any legal action or proceeding arising out of or relating to the Terms and Conditions shall be brought exclusively in the state or federal courts located in Charlotte, North Carolina. The Parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any such action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or defense.
20.3 Notwithstanding the foregoing, neither Party has an obligation to resolve a dispute in accordance with Section 20.1 above, if the claim based on actual or threatened infringement or misappropriation of a Party’s intellectual property rights or actual or threatened misappropriation or unauthorized use or disclosure of a Party’s Confidential Information. Each of the Parties hereby acknowledges that the violations of the restrictions and obligations relating to intellectual property rights or Confidential Information may cause irreparable harm and that remedies at law may be inadequate to redress any actual or threatened violation of such restrictions and obligations. Accordingly, each of the Parties agrees that, in addition to other relief, such restrictions and obligations may be enforced by either Party seeking temporary and permanent injunctive relief, specific performance or other equitable relief with respect to such matters, without the necessity for the posting of any bond or security.
20.4 In the event an applicable legal or equitable action is brought by either Party, the prevailing Party shall be entitled to recover reasonable attorneys’ fees and expenses.
21. Severability Clause.
Should individual provisions of the Terms and Conditions be invalid or unenforceable for actual or legal reasons, without rendering the continuity of the remaining provisions unreasonable as a whole for either Party, this shall not affect the validity of the remaining provisions. The same shall apply in the event of a contractual gap. In lieu of the invalid or unenforceable provisions or to close any contractual gap, the Parties shall agree to a provision that comes closest to fulfilling the economic purpose intended by the Parties.