Uxplore Customer Agreement
Welcome to the Callaway Golf Company ('Callaway') uxplore website (sometimes referred to as the 'Site'). Like the game of golf, this Site has certain rules that you must follow which we call our 'Terms of Service'. Please read the Terms of Service carefully. Most of all, have fun while you discover Callaway's uxplore website.
Who We Are: When we refer to 'Callaway Golf,' 'Callaway,' 'we,' 'our' or 'us,' it means Callaway Golf Company and its subsidiaries. Callaway Golf Company's headquarters are located at 2180 Rutherford Road, Carlsbad, California 92008, USA. The telephone number is (760) 931-1771. Currently, Callaway Golf has subsidiaries in the United States, Canada, Europe, Japan, Korea, China, Thailand, Malaysia, India and Australia. In addition to the Callaway Golf® brand of products, Callaway Golf's brands include, among others, Odyssey® and upro®. Unless otherwise noted, these Terms of Service are for the uxplore site associated with our upro golf gps rangefinders and for other sites, devices, and services on which these Terms of Service may be found. Purchase of a Callaway upro device is not required to use the uxplore site.
1. Your Acceptance
A. By using or visiting Callaway's uxplore site or using any Callaway uxplore features, products, software, data feeds, information, or services provided to you on, from, or through the Callaway uxplore website (collectively the 'Service'), you signify that you have the legal authority to bind yourself and your acceptance of and agreement to (1) these Terms of Service, and (2) Callaway's privacy notice, found here (the 'Privacy Notice'). DATA FROM USERS IN EUROPE WILL BE TRANSMITTED TO CALLAWAY GOLF OR ITS WEBSITE VENDOR IN THE UNITED STATES FOR STORAGE AND/OR USE BY CALLAWAY AS SET FORTH HEREIN. IF YOU CONNECT TO THE UXPLORE SITE, YOU ARE CONSENTING TO THE TRANSMITTAL OF YOUR INFORMATION OUTSIDE EUROPE IN ACCORDANCE WITH THE PRIVACY NOTICE.
B. If you do not agree to these Terms of Service please do not use the Service. Your decision not to use the Service does not permit you to return the Callaway upro mx or any other product purchased from Callaway. Pursuant to the terms of these Terms of Service, you are granted a non-exclusive, non-transferable, terminable license to the use of the uxplore site and the software associated with the use of the upro mx or other product or service offered by Callaway in connection with the Service. The license is terminable according to these Terms of Service.
C. Although we may choose to notify you when major changes are made to the Site, these Terms of Service, to the Callaway upro mx, or to any other product or service offered by Callaway, you should periodically review the most up-to-date version of the Service and our product offerings on our website. Callaway may, in its sole discretion, modify or revise these Terms of Service at any time and you agree to be bound by such modifications or revisions when they occur. D.Callaway may choose to suspend support of any Callaway upro product previously offered and designed to operate through the Site. Nothing in these Terms of Service shall be deemed to confer any right to require continued support of such products, including but not limited to course features for a particular golf course.
E. Use of the Service requires one or more compatible devices, certain software and internet access with compatible ISP (broadband required for web applications); separate fees may apply. The Service is compatible with and requires Windows XP with SP3, Windows Vista, Windows 7, or Mac OS X v10.4.10 or later. Compatible browsers include current or later versions of Internet Explorer 7, Firefox 3.0, Safari 4.0, or Chrome. Your use of the Service may be affected by certain combinations of hardware, software and/or internet access. High speed internet access is strongly recommended.
F.You agree that the Service and Site are controlled and operated in whole or in party by Callaway from its offices within the United States. Callaway makes no representation that the Service, Site, and/or Content are appropriate or available for use in particular locations outside of the United States.
2. Important Notice for Amateur Golfers
A. You are solely responsible for ensuring that your use of the Service, the Callaway upro mx, or any other rangefinder offered by Callaway does not affect your eligibility as an amateur golfer. Please check with your amateur athletic association (e.g. United States Golf Association, Royal and Ancient, Japan Golf Association) for the rules that apply in competition or in recreational play.
B. You are responsible for determining if the use of the Callaway upro mx or any other golf gps rangefinder conforms to the Rules of Golf, including for recreational play, for purposes of posting a score for handicap purposes, for competitions, or otherwise.
C. Callaway is not responsible for any ruling by any tournament official as a result of the use of any rangefinder or Service offered or sold by Callaway.
3. Intellectual Property Rights
A. Unless otherwise stated herein, all intellectual property rights associated with the Service and the provision of the Service is owned by Callaway, its website vendors, licensors or licensees as the case may be. All Callaway trademarks, service marks and trade names (e.g. Callaway, uxplore, and upro) are trademarks or registered trademarks of Callaway. Unless otherwise stated, the content of the site included with the Service is a collective work under the United States and other copyright laws and is the property of Callaway. All rights reserved.
B. Depictions of competitor products, including golf clubs that you or any other user may identify when you access the Site may be subject to trademark rights of the respective companies who sell those products. Callaway is not seeking to trade on the success of those marks or to associate its own products with the trademarks of its competitors. Your right to post or include information about other companies' products on the Site, for purposes of comparison, information, shot tracking, practice or otherwise, is therefore subject to the trademark rights of those companies. If they object to your use of their marks on the Site, it is your responsibility to determine if you must discontinue said use.
4. Use of the Service, Product Purchases and Beta versions of the Service
A. You may use the Service only for your own non-commercial purposes, to purchase Callaway products, or for any other purpose permitted by Callaway. Any other use is prohibited. This permission terminates automatically if you breach any of these Terms of Service. You agree not to change or delete any ownership notices from any materials on the Site whether downloaded or printed. You agree not to modify, copy, translate, broadcast, perform, display, distribute, frame, reproduce, republish, download, display, post, transmit or sell any content appearing on the Site, including User Generated Content (defined in Section 8 below) unless it is your own User Generated Content legally posted on the Site in accordance with these Terms of Service. You agree that you will use the Service and access the Site and the Content (as defined below) only for the purposes permitted herein and that all information you submit is accurate and otherwise complies with these Terms of Service.
B. These Terms of Service apply to all users of the Service, including users who are also contributors of Content on the Service. 'Content' includes the text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features and other materials you may view on, access through, or contribute to the Service, including, without limitation, User Generated Content. The definition of Service includes all aspects of Callaway uxplore, including but not limited to all products, software and services offered via the Site.
C. The Service may contain links to third party websites that are not owned or controlled by Callaway. Callaway has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party. In addition, Callaway will not and cannot censor or edit the content of any third-party site. By using the Service, you expressly relieve Callaway from any and all liability arising from your use of any third-party website.
E. All orders placed through the Service, including orders to purchase credits to be used for purchasing golf course displays on the Callaway upro mx, other products, or other services, are subject to Callaway's acceptance. This means that Callaway may refuse to accept your order, whether or not it has been confirmed, for any reason or no reason, without liability to you or anyone else. If your credit card has been charged, and Callaway refuses your order, you will be issued a refund.
F. Callaway may choose to inactivate your account after an appropriate period of inactivity (typically two years). Account deactivation does not entitle you to a refund of any credits or other sums.
G. If you access the Service from a mobile phone, personal computing device, tablet or other such personal device, you are solely responsible for payment of any service charges associated with use of said device. Use of the Service from a wireless device may require wireless mobile data service, which must be obtained from your wireless carrier. You may be required to send and receive, at your cost, electronic communications related to the Service, including without limitation, administrative messages, service announcements, diagnostic data reports, and Service updates from Callaway, your mobile carrier or third party service providers. If you do not have an unlimited wireless mobile data plan, you may incur additional charges from your wireless service provider in connection with your use of the Service. The Service may also require Internet access, which must be obtained from your service provider. You are responsible for obtaining and paying for such additional services, including without limitation all usage charges related thereto. You are solely responsible for obtaining any additional subscription or connectivity services or equipment necessary to access the Site and/or Service, including but not limited to payment of all third party fees associated therewith, including fees for information sent to or through the Service. Neither the Service nor the Site will work with all mobile carriers. Callaway makes no representations that the Services or the Site will be compatible with or provided by all mobile carriers. In the event that fees are charged for the Service, or other third party service providers charge a fee for the products or services they provide, you agree to pay such fee to the respective party in exchange for your continued use of such products or services. Some services may be subject to different or additional terms (including fees), which you will be required to agree to prior to your use of such services.
H. The Service, or any feature or part thereof, may not be available in all languages or in all countries and Callaway makes no representation that the Service, or any feature or part thereof, is appropriate or available for use in any particular location.
I. From time to time, Callaway may choose to offer new and/or updated features of the Service (the 'Beta Features') as part of a public Beta Program (the 'Beta Program') for the purpose of providing feedback on the quality and usability of the Beta Features. You understand and agree that your participation in the Beta Program is voluntary and does not create a legal partnership, agency, or employment relationship between you and Callaway, and that Callaway is not obligated to provide you with any Beta Features. Callaway may make such Beta Features available to Beta Program participants by online registration or enrollment via the Service. You understand and agree that Callaway may collect and use certain information from your account, devices and peripherals in order to enroll you in a Beta Program and/or determine your eligibility to participate. You understand that once you enroll in a Beta Program you may be unable to revert back to the earlier non-beta version of a given Beta Feature. In the event such reversion is possible, you may not be able to migrate data created within the Beta Feature back to the earlier non-beta version. Your use of the Beta Features and participation in the Beta Program is governed by these Terms of Service and any additional license terms that may separately accompany the Beta Features. The Beta Features are provided on an 'AS IS' and 'AS AVAILABLE' basis and may contain errors or inaccuracies that could cause failures, corruption or loss of data and/or information from your device and from peripherals (including, without limitation, servers and computers) connected thereto. Callaway strongly encourages you to back-up all data and information on your device and any peripherals prior to participating in any Beta Program. You expressly acknowledge and agree that all use of the Beta Features is at your sole risk. YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH YOUR PARTICIPATION IN ANY BETA PROGRAM, INCLUDING, WITHOUT LIMITATION, ANY INTERNET ACCESS FEES, BACK-UP EXPENSES, COSTS INCURRED FOR THE USE OF YOUR DEVICE AND PERIPHERALS, AND ANY DAMAGE TO ANY EQUIPMENT, SOFTWARE, INFORMATION OR DATA. Callaway may or may not provide you with technical and/or other support for the Beta Features. If support is provided it will be in addition to your normal support coverage for the Service and only available through the Beta Program. You agree to abide by any support rules or policies that Callaway provides to you in order to receive any such support. Callaway reserves the right to modify the terms, conditions or policies of the Beta Program (including ceasing the Beta Program) at any time with or without notice, and may revoke your participation in the Beta Program at any time. You acknowledge that Callaway has no obligation to provide a commercial version of the Beta Features, and that should such a commercial version be made available, it may have features or functionality different than that contained in the Beta Features. As part of the Beta Program, Callaway may provide you with the opportunity to submit comments, suggestions, or other feedback regarding your use of the Beta Features. You agree that in the absence of a separate written agreement to the contrary, Callaway will be free to use any feedback you provide for any purpose, including endorsement of the Beta Features and the Beta Program.
J. You further agree not to modify, re-design, or reverse engineer the Services or the Callaway uPro; or copy, de-compile, re-compile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works or translations of any of the software related thereto. The Services may not be transferred or transmitted to any other hardware, software, or user, unless, and except as, expressly permitted herein.
K. Apart from your own use of any of your own User Generated Content, all other use of the Service, Site, and/or Content (including, but not limited to uploading, downloading, modification, publication, transmission, participation in the transfer or sale of, copying, reproduction, republishing, creation of derivative works from, distribution, performance, display, incorporation into another service reproducing the Services or Content (whether by linking, framing or any other method)), including in any other way exploiting any of the Content, in whole or in part, or downloading and using the Service and/or Site for uses other than those expressly permitted may not be made without Callaway's permission. You agree that Callaway, in its sole discretion, may modify, suspend, terminate or restrict your use or access to the Service, for any or no reason.
5. Callaway uxplore Accounts
A. In order to access features of the Service, you will have to create a Callaway uxplore account. Each user may establish a unique account associated with a unique email address. You are entitled to establish only one account per email address. You may never use another's account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account. Keep your account password secure. You must notify Callaway immediately of any breach of security or unauthorized use of your account. You may not authorize any third party to access or use your account.
B. Although Callaway will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Callaway or others due to such unauthorized use.
C. You agree to pay all fees and charges specified when you signed up for the Service and any part thereof. All fees are exclusive of applicable taxes (e.g. sales, use, or value-added tax), unless otherwise stated, and you are solely responsible for the payment of any such taxes that may be imposed on your use of the Service.
D. You may be asked to provide a credit card number from a card issuer that we accept in order to activate and/or pay for any fees related to the Service. We may seek pre-authorization of your credit card account prior to a purchase to verify the credit card is valid and/or has the necessary funds or credit available to cover your purchase. These pre-authorizations will reduce your available balance by the authorization amount until it is released or reconciled with the actual charge. Please contact your card issuer if you have additional questions regarding when an authorization amount will be removed from your statement.
E. Callaway may offer you a one-time free trial period during which you can try out the Service for free ('Free Trial Period'). If you are participating in a Free Trial Period, you must cancel the Service by the end of the Free Trial Period to avoid incurring any charges. If you do not cancel the Service before the Free Trial Period expires, and we have informed you that the Service will automatically be converted into a paid subscription at the end of the Free Trial Period, then you authorize us to charge your credit card the applicable fees as indicated at the time you signed up for the Service. During the Free Trial Period, you agree that Callaway will have the right (subject to applicable local law) to send you communications, notices and news about the Service to your email address and to any alternate email address you may have provided. Local law may allow you to revoke your consent to receiving these communications at any time during the Free Trial Period. Callaway reserves the right to modify, cancel and/or limit any Free Trial Period offer at any time.
F. You may consult your account management page for account information including payment method and billing currency. Callaway shall send an electronic invoice to your email address whenever any Service fees are charged to your account. If you believe you have been billed in error for the Service please notify us within 45 days of the billing date. All fees and charges paid by you in relation to the Service are nonrefundable, except as otherwise stated herein.
G. Callaway may at any time, upon notice required by applicable law, change the price of the Service or any part thereof, or institute new charges or fees. Price changes and institution of new charges implemented during your subscription term will apply to subsequent subscription terms after the effective date of the change. If you do not agree to any such price changes, then you must cancel your account and stop using the Service. Your continued use of the Service after the effective date of any such change shall constitute your acceptance of such change.
6. General Use of the Service
Callaway hereby grants you permission in the form of a limited license, to access and use the Service as set forth in these Terms of Service, provided that:
A.You agree not to distribute in any medium any part of the Service or the Content without Callaway prior written authorization.
B. You agree not to alter or modify any part of the Service.
C. You agree not to access Content through any technology or means other than through the Service itself, or other explicitly authorized means Callaway may designate.
D. You agree not to use the Service for any of the following commercial uses unless you obtain Callaway's prior written approval:
- Sale of access to the Service;
- Sale of advertising, sponsorships, or promotions placed on or within the Service; or
- Sale of advertising, sponsorships, or promotions on any page of an ad-enabled blog or website containing Content delivered via the Service.
E. Prohibited commercial uses do not include:
- Uploading your own User Generated Content to the Site in accordance with the Posting Guidelines set forth below; or
- Any use that Callaway expressly authorizes in advance, in writing.
F. If you use Site software you may not modify, build upon, or block any portion or functionality of it including but not limited to links back to the Callaway website. You are licensed to use the software necessary to access the Site only so long as you follow these Terms of Service and as permitted by Callaway. You may install, access and use the upro Materials on your upro mx device and on computers directly supporting that upro mx device. We reserve the right to limit the number of computers that may support a device. You are not allowed to make the upro Materials available over a network where they could be used or accessed by multiple devices or computers at the same time. You may make one copy of the upro Materials stored on your computer in machine-readable form for backup purposes only, provided that the backup copy must include all copyright or other proprietary notices contained on the original.
G. If you use the Callaway uxplore software you agree that Callaway or its designated agent may automatically download and install updates from time to time. These updates are designed to improve, enhance and further develop the software and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit Callaway or its authorized agents to deliver them) as part of your use of Callaway uxplore.
H. You agree not to damage, disable, overburden, or impair the Site or Service (or the network(s) connected to the Site and/or Service).
I. You agree not to use or launch any automated system, including without limitation, 'robots,' 'spiders,' or 'offline readers,' that accesses the Service in a manner that sends more request messages to the Callaway uxplore servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. You agree not to collect or harvest any personally identifiable information, including account names, from the Service, nor to use the communication systems provided by the Service (e.g., comments, email) for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Service with respect to their Content.
J. In your use of the Service, you will comply with all applicable laws.
7. Your Use of Content
In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of Content other than your own User Generated Content posted on the site.
A. Content from Callaway, or other users, is provided to you AS IS. You may access Content for your information and personal use solely as intended through the provided functionality of the Service and as permitted under these Terms of Service. For avoidance of doubt, you are not permitted to use any imagery available on the Site or on any upro device beyond the use necessary to personally use the Callaway upro device or participate in the Site.
B. You understand that when using the Service, you will be exposed to Content from a variety of sources, including other users, and that Callaway is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Callaway with respect thereto, and, to the extent permitted by applicable law, agree to indemnify and hold harmless Callaway, its owners, operators, affiliates, licensors, and licensees to the fullest extent allowed by law regarding all matters related to your use of the Service or the purchase of products on the Site.
8. Your Content and Conduct
A. As a Callaway uxplore account holder you may submit User Generated Content to the Service, including videos and user comments in accordance with the Posting Guidelines set forth below ('User Generated Content').
B. You shall be solely responsible for your own Content and the consequences of submitting and publishing your Content on the Service. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit; and you license to Callaway all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to these Terms of Service.
C. For clarity, you retain all of your ownership rights in your Content. However, by submitting Content to the Site, you hereby grant Callaway a perpetual, worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with Callaway's (and its successors' and affiliates') business, including without limitation for promotion and redistribution in any media formats and through any media channels; for purposes of endorsing Callaway's products; or for advertising and sale of any product offered by Callaway or any other third party to whom Callaway provides the Content you posted. You also hereby grant each user of the Service a non-exclusive license to access your Content through use of the Service, and to use, reproduce, distribute, and display such Content if permitted through the functionality of the Service and under these Terms of Service. You understand and agree that Callaway may retain server copies of your Content that have been removed or deleted by you. The above licenses and permission granted by you are perpetual and irrevocable.
D. You further agree that you will not submit to the Service any Content or other material that is contrary to the Community Guidelines set forth below, or contrary to applicable local, national, and international laws and regulations.
E. Callaway does not endorse any Content submitted to the Service by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and Callaway expressly disclaims any and all liability in connection with Content. Callaway does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and Callaway will seek to remove all Content if properly notified, as provided below, that such Content infringes on another's intellectual property rights.
F. Testimonials are generally unsolicited and are non-representative of all golfers. Testimonials represent the viewpoints and unique experiences of individual golfers and should not be taken as indications or guarantees of future results.
G. The Site may offer you opportunities to vote on certain matters and also to enter contests and sweepstakes. By casting a vote or entering contests or sweepstakes, you signify your agreement to all of the terms and conditions associated therewith.
9. Account Termination
A. You agree that Callaway, in its sole discretion, may modify, suspend, terminate or restrict your use or access to the Service, for any or no reason. You agree that Callaway shall not be liable to you or to any third party for any modification, suspension, withdrawal, discontinuance or termination of the Service, Site, and/or Content.
B. Callaway reserves the right to decide whether Content violates these Terms of Service such as, but not limited to, pornography, obscenity, or excessive length. Callaway may at any time, without prior notice and in its sole discretion, remove such Content and/or terminate a user's account for submitting such material in violation of these Terms of Service.
10. Digital Millennium Copyright Act
A. You understand that Callaway has no responsibility to monitor User Generated Content.
B. Notice: If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ('DMCA') by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Please send the notice to:
Callaway Golf Company
Attention: Legal Department
2180 Rutherford Road
Carlsbad, CA 92008
You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid.
Upon receipt of a completed and signed notice, if appropriate, Callaway will disable access to the allegedly infringing materials and will promptly notify the individual who posted the materials that access has been disabled. If your notification is unsigned or is not on our form and does not contain the authorization language of our form, Callaway will work with you to obtain a properly executed notification. If any of the other information is missing from your notification, however, Callaway will not be able to respond to your request. The individual who posted the materials may provide Callaway with counter-notification that the materials were removed or disabled as the result of a mistake or misidentification of the materials. This counter-notification must (1) be signed, (2) include the individual's name, address and telephone number, (3) include a statement that the individual is making the counter-notification under penalty of perjury, and (4) state that the person consents to the jurisdiction of the federal district court where his or her address is located. If Callaway receives such a counter-notification, and Callaway determines that it would like to restore access to the materials, a copy will be sent to you notifying you that access to the materials will be restored within ten business days. Access will be restored between the tenth and fourteenth business day after Callaway receives a counter-notification unless you inform Callaway that you have filed an action seeking a court order to restrain the individual who made the posting from engaging in infringing activity on our network and servers. If Callaway determines that it does not want to restore access to the materials, you will not receive any further notification.
The foregoing take-down obligation shall only apply to Content under Callaway's direct control, and shall not apply to Content residing on third party websites or websites linked to or accessed through the Services or Site; Callaway shall have no liability for any misuse of intellectual property rights occurring on such third party services or websites.
11. Warranty Disclaimer
YOU AGREE THAT YOUR USE OF THE SITE AND SERVICE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, CALLAWAY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE THEREOF. CALLAWAY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICE, INCLUDING THE ACCURACY OF THE GPS DATA MADE ACCESSIBLE THROUGH THE SERVICE, OF THIS SITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. CALLAWAY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND CALLAWAY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
12. Limitation of Liability
IN NO EVENT SHALL CALLAWAY, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR VENDOR'S SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF THE, SERVICE, AND/OR ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT CALLAWAY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
YOU SPECIFICALLY ACKNOWLEDGE THAT CALLAWAY SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Callaway, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your Content caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of the Service.
14. Ability to Accept Terms of Service
You affirm that you have reached the age of majority in the state or territory of your residence or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. In any case, you affirm that you are over the age of 13, as the Service is not intended for children under 13. If you are under 13 years of age, then please do not use the Service.
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Callaway without restriction, including the transfer of information about you for marketing or other purposes by Callaway, its subsidiaries, its affiliates, its licensors and licensees, or any other third party as Callaway unilaterally determines. You may make a one-time permanent transfer of all of your license rights to the upro software necessary to operate the device in question to another party in connection with the transfer of ownership of your upro mx device, only if: (a) the transfer includes your upro mx device and all of the upro software, including all its component parts, original media, printed materials; (b) you do not retain any copies of the upro software or other materials, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the upro reads and agrees to accept the terms and conditions of these Terms of Service.
16. Choice of Law and ARBITRATION
You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive website that does not give rise to personal jurisdiction over Callaway, either specific or general, in jurisdictions other than California. These Terms of Service shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute between you and Callaway that arises in whole or in part from the Service shall be decided exclusively in arbitration between you and Callaway, and not in a representative or class action, pursuant to the JAMS Streamlined Arbitration Rules and Procedures. Callaway shall select and pay the cost of the arbitrator, but you shall have the right to object to the choice of arbitrator on grounds of bias. In the event that you recover more than Callaway has offered to resolve the matter in the arbitration, you shall be entitled, in addition to any damage award by the arbitrator, an attorneys' fee award equal to ten percent of the arbitration award. You may elect to conduct the arbitration telephonically or only on written submissions. No electronic discovery shall be permitted or required in any arbitration with respect to the Service. These Terms of Service, together with the Privacy Notice referenced above or any other legal notices published by Callaway on the Service, shall constitute the entire agreement between you and Callaway concerning the Service. If any provision of these Terms of Service is deemed invalid by the arbitrator, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and Callaway's failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. Callaway reserves the right to amend these Terms of Service at any time without notice, and it is your responsibility to review these Terms of Service for any changes. Your use of the Service following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms. YOU AND CALLAWAY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. BY USING THE SERVICE YOU AGREE THAT YOU SHALL NOT BE ENTITLED TO PUNITIVE DAMAGES IN CONNECTION WITH ANY CLAIM YOU MAY PURSUE.
If any provision of these Terms of Service is held to be invalid by any law, rule, order or regulation of any government or by the final determination of any state or federal court, such invalidity shall not affect the enforceability of any other provision of these Terms of Service. The failure of Callaway to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to the Terms of Service.
The section titles in these Terms of Service are for convenience only and have no legal or contractual effect.
The Terms of Service are the entire agreement between you and us regarding your use of the Site and/or Services. Callaway may amend or modify the Terms of Service at any time. Any use of the Site and/or Services by you after such notice shall be deemed to constitute acceptance of such modified terms.
18. Posting Guidelines
A. Callaway uxplore is a site for golfers about golf. It is not for pornography or sexually explicit content. If this describes your content, even if it's a video of yourself, don't post it.
B. Don't post videos showing bad stuff like animal abuse, drug abuse, under-age drinking and smoking.
C. Graphic or gratuitous violence is not allowed. If your video shows someone being hurt or humiliated, don't post it.
D. Golf is a game of respect. Don't post gross-out content intended to shock or disgust.
E. Only upload content that you made or that you are authorized to use. This means don't upload content you didn't make, or use content that someone else owns the copyright to, such as music tracks, snippets of copyrighted Beta Programs, or videos made by other users, without necessary authorizations.
F. We encourage free speech and defend everyone's right to express unpopular points of view. But we don't endorse hate speech (speech which attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and sexual orientation/gender identity).
G. Everyone hates spam. Don't create misleading descriptions, tags, titles or thumbnails in order to increase views. It's not okay to post large amounts of untargeted, unwanted or repetitive content, including comments and private messages. Do not use the Service for commercial purposes or to annoy others with your own agenda.
H. Do not misrepresent your identity, your affiliation with others, your age, your gender, your index, your handicap, your employment, or the like. Do not use another's account, password, or registration. In other words, do not pretend to be someone else.
I. This is a site about golf for golfers. It is designed to help golfers enjoy the game that we love. Stay on topic.
J. Do not use the Service to harass, annoy, offend, intimidate, or mislead others. Treat others as you would expect to be treated. Callaway reserves the unilateral and absolutely discretionary right to delete any Content for any reason or no reason, including content that is defamatory, offensive, libelous, slanderous, misleading, malicious, false, fraudulent, indecent, harmful, sexual, racial, culturally insensitive, vulgar, or the like.
K. Do not use the Service in any way that is intended or does in fact violate the law, including by way of example only, gambling, breaching a contract; interfering with intellectual property rights, theft of trade secrets; or publishing confidential information.
L. Callaway does not prescreen content. Callaway does not guarantee that user generated content will not be offensive, vulgar, objectionable, fraudulent, inaccurate, defamatory, threatening or the like. Callaway assumes no responsibility to monitor or remove offensive content or to curtail activities that may be lawful or just plain offensive. If Callaway chooses to delete user generated content, it undertakes no continuing obligation to do so in the future.
M. You have no right of privacy associated with any Content. You do not have the right to keep information confidential or to seek compensation for any content you choose to post. By posting, you give Callaway an unlimited, worldwide, transferable, irrevocable, royalty-free, and unfettered right to use the content for any purpose it so chooses, including the right to use the information as an endorsement of Callaway, its products, the Service; to sell to you or others any other product offered by Callaway or its approved vendors; to advertise Callaway's products or services; or to share your information with any third party that Callaway so chooses.
N. Please do not send us any creative ideas, original materials, or suggestions relating to products or marketing plans. Any communication or material you transmit to Callaway Golf or post to the Site by electronic mail or otherwise, including any questions or answers, comments, suggestions, or the like, will be treated as non-confidential and non-proprietary, and may be disseminated or used by Callaway or its affiliates for any purpose including, but not limited to, developing, manufacturing or marketing products.
Last Updated: June 14, 2011