General Terms and Conditions

1. Subscription Service.

1.1          Access to the Subscription Service.  OnLink grants to User the right to access or provide access to and use the Service.  The Service is provided on servers controlled by OnLink and accessed by User (or its authorized user(s)) via an Internet connection.  User must have an Internet connection and hardware and software that is compatible with the Services.

1.2          Scope of Use.  If User is a golf club or country club, the Service is for use at User’s facilities only.

1.3          Service Modifications; Interruptions.  OnLink may at its sole discretion modify or change any of the features of the Service without materially affecting the functionality of the Service.  OnLink may from time-to-time perform software maintenance that may cause the Service to be temporarily interrupted.  Such maintenance shall be performed during non-peak hours (9:00 PM to 5:00 AM Eastern Time), to the extent that it is reasonably possible.  In the event any routine maintenance will not be performed during non-peak hours, OnLink will make commercially reasonable efforts to notify User in advance of such maintenance.

2. Term and Termination

2.1          Term.  The initial term of the Agreement shall be outlined as in the Software Service Agreement and shall continue for successive renewal terms of one (1) year following the end of the Initial Term (each a “Renewal Term”) unless either party provides sixty (60) days written notice to the other prior to the date of termination of the Initial Term or any then-current Renewal Term informing the other party that it does not wish to renew the Agreement.  The Initial Term or any Renewal Terms are sometimes referred to herein as the “Term.”

2.2          Termination for Cause.  Either party may terminate this Agreement for cause by giving the other party thirty (30) days prior written notice specifying a material breach of the other party’s obligations under this Agreement; and provided that said breach has not been cured within such thirty (30) day period, the non-defaulting party shall have the right, at its election and without prejudice to any other rights or remedies, to cancel this Agreement in whole or in part.

2.3          Termination for Convenience.  User may terminate the Agreement during the Initial Term or any Renewal Term at any time for any reason or no reason.  If the pricing plan selected on Attachment A includes a minimum annual commitment, then upon termination for convenience, User agrees to pay an amount equal to the minimum annual commitment minus the sum of all payments made by User during the Initial Term or current Renewal Term.

2.4          Effect of Termination.  Upon the termination of this Agreement (whether pursuant to this Section 2 or for any other reason), User shall immediately (i) cease use of the Service, and (ii) pay any outstanding, amounts due to OnLink hereunder; and each party shall return to the other party all copies of such other party’s Intellectual Property and Confidential Information and certify in writing to such other party that no copies of such Intellectual Property and Confidential Information have been retained by it within ten (10) days of such termination or, if requested by the owner of the property, destroy all copies of their Intellectual Property and Confidential Information and certify in writing to the owner of the property that all copies have been destroyed.

3. Fees and Payments.

3.1          Subscription Fee.  OnLink provides the Service to User for term agreed upon in Software Service Agreement.  Pricing for OnLink Services for the Initial Term is specified in Attachment A to this Agreement.  If User is to be invoiced for Services provided, invoices are payable in full at the execution of this Agreement and with a received invoice, and no later than ten (10) days of invoicing.  If User wishes to pay by credit card, the credit card will be charged upon execution of this Agreement.

3.2          Late Payments.  If User fails to pay any Fee by the applicable due date, OnLink will have the right to: (a) assess late charges in the amount equal to the greater of one percent (1%) per month or the maximum allowable under applicable law; and/or (b) suspend access to any or all of the Service.  Any such suspension or termination will not relieve User from paying any outstanding Fees plus late charges.  User will be responsible for any cost associated with collecting such fees including without limitation, legal costs, reasonable attorney’s fees, court costs and collection agency fees.

3.3          Sales and Use Taxes.  Sales and Use Taxes vary from state to state.  User shall consult its tax advisor to determine whether Sales or Use Tax should be remitted to the appropriate taxing authority in your jurisdiction.

4. Proprietary Rights

4.1          Ownership of User Data.  As between the parties, User retains all right, title and interest in and to User information in the form submitted to and used by the Service (the “User Data”), but excluding any OnLink Intellectual Property (as defined below in Section 4.2).  OnLink will not distribute any materials that bear any connection to User or User Marks without the permission of User, and will not use User Data for any purpose other than providing the Service to Users.  Without derogating User’s ownership of User Data in the form provided to and used by the Service, OnLink shall retain all right, title and interest in and to all processed data and aggregation results that are necessary or useful for providing or improving the Service.

4.2          Ownership of OnLink Intellectual Property.  User acknowledges that OnLink owns and retains all right, title, and interest in and to all software programs incorporated into the Service, data resulting from operation of the Service (which may process, modify, aggregate, genericize, and anonymize User Data), the OnLink Marks, all Intellectual Property rights pertaining thereto (including, without limitation, any and all data, technology, software, code, user interfaces, trademarks and other items posted thereon or used in connection or associated therewith) for the Service. Except as expressly granted herein, no license or right to access the source code or object code of the Software or to duplicate the OnLink Intellectual Property are granted or implied by this Agreement.  Specifically, User shall not (a) modify, port, translate, localize or create derivative works of OnLink Intellectual Property; (b) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the OnLink Intellectual Property by any means whatsoever, or disclose any of the foregoing; or (c) sell, lease, license, sublicense, copy, market or distribute the OnLink Intellectual Property. User shall not remove, obscure or alter OnLink’s copyright notice or the OnLink Marks from the Service or the Software.

4.3          For purposes of this Agreement, “Intellectual Property” means all rights in, to or arising out of: (i) any proprietary information, know-how, and data, including but not limited to, all proprietary intellectual property rights arising out of common law principles, and (ii) all copyrights, trademarks (“Marks”) or patents, and applications thereof in the U.S. and any foreign country.

5. Confidentiality

5.1. OnLink Trade Secrets. The Service contains valuable trade secrets that are the sole property of OnLink, and which derive independent economic value from being maintained confidential and proprietary.  User agrees to exercise the utmost care in preventing other parties from learning of these trade secrets, and shall in any event treat such trade secrets as User treats its own confidential and proprietary information of similar importance.  User will take commercially reasonable care to prevent unauthorized access to the Services.

5.2. Section 5.1 does not apply to any information that (i) is now, or subsequently becomes, through no act or failure to act on the part of User, generally known or available; (ii) is subsequently provided to User by a third party, as a matter of right and without restriction on disclosure; or (iii) is required to be disclosed by law.

6. Warranties, Indemnification and Limitation of Liability

6.1          Warranties.  The parties to this Agreement represent and warrant as follows:

                6.1.1       Each party warrants that it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder and each party warrants that its execution of this Agreement by such party and performance of its obligations hereunder, do not and will not violate any agreement to which it is a party or by which it is bound; and in performance under and related to this Agreement, the parties shall comply with all applicable laws, rules and regulations (including, without limitation, laws related to privacy).

6.1.2       OnLink represents and warrants that all User Data provided to OnLink during the Term will be used by OnLink solely to provide the Service and will not be disclosed in the form provided by User to any third party.  However, OnLink shall be permitted to use such User Data (not including personally identifiable information) regarding the Service and the performance thereof for its own internal purposes, for improving or optimizing the Service, and for marketing purposes and making the Service available to other Users.  OnLink shall not violate the privacy rights of any user or other third party.

6.2          OnLink Indemnification. OnLink hereby indemnifies and holds harmless User from and against any and all claims, actions, liabilities, costs and demands including reasonable attorneys fees arising out of (i) any violation of state or federal laws or regulations by OnLink, (ii) invasion of any privacy rights by OnLink; (iii) any breach of OnLink’s representations or warranties or covenants set forth in this Agreement, or (iv) any third party claims that the Service, OnLink content, OnLink material or logo, in the form provided by OnLink, infringes any United States patent, trademark, copyright, trade secret or other intellectual property right of such third party, except to the extent such claim is based on an allegation that the User Data so infringes.  User agrees that OnLink shall have the obligations in this Section 6.2 only if User provides OnLink with: (a) prompt written notification of the claim or action; (b) sole control and authority over the defense or settlement thereof; provided OnLink does not make any claim that would adversely affect the rights of User with respect to such claim without prior approval; and (c) all available information, assistance and authority to settle and/or defend any such claim or action. Notwithstanding the foregoing, OnLink will not be liable for any claim arising from or based upon: (i) any unauthorized use, reproduction, or distribution of the Service or its underlying code; (ii) any modification or alteration of the Service or its underlying code without OnLink’s prior written approval, and any modification or alteration of the Service that is made at User’s request; (iii) use of the Service in combination with any other software or hardware not provided by OnLink; or (iv) use of a prior version of the Service, if use of a newer version would have avoided such claim and such newer version is made available without charge.

6.3          User Indemnification. User hereby indemnifies and holds harmless OnLink from and against any and all claims, actions, liabilities, costs and demands including reasonable attorneys fees arising out of (i) any violation of state or federal laws or regulations by User, (ii) invasion of any privacy rights by User; or (iii) any breach of User’s representations or warranties or covenants set forth in this Agreement. OnLink agrees that User shall have the obligation in this Section 6.3 only if OnLink provides User with: (a) prompt written notification of the claim or action; (b) sole control and authority over the defense or settlement thereof; provided User does not make any claim that would adversely affect the rights of OnLink with respect to such claim without prior approval; and (c) all available information, assistance and authority to settle and/or defend any such claim or action.

6.4          Third Party Access. The parties agree that in the event the User Data stored or communicated through the Service is accessed by a third party through illegal or illicit means, including situations where such User Data is accessed through the exploitation of security gaps, weaknesses or system flaws (whether known or unknown to either party or its suppliers at the time) which may exist, the party aware of such access shall notify the other party immediately in writing of such access.  After such notice, the parties will work together to terminate such access and to notify each affected party, including the public authorities and to pursue such actions as are commercially reasonable.

6.5          WARRANTY DISCLAIMER.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SUBSCRIPTION SERVICE IS PROVIDED WITH NO OTHER WARRANTIES OF ANY KIND, AND ONLINK DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY. ONLINK DOES NOT WARRANT THAT THE USE OF THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

6.5.1       LIMITATION OF LIABILITY.  NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THIS POSSIBILITY. USER ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE SUBSCRIPTION SERVICE NECESSARY TO ACHIEVE USER’S INTENDED RESULTS, AND FOR THE USE AND RESULTS OF THE SUBSCRIPTION SERVICES OR WORK PRODUCT. EACH PARTY’S TOTAL LIABILITY FOR ANY DIRECT LOSS, COST, CLAIM OR DAMAGES OF ANY KIND RELATED TO USE OF THE SERVICE SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE BY, FOR THE BENEFIT OF, OR ON BEHALF OF USER TO ONLINK DURING THE 12 MONTHS BEFORE THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES. THIS LIMITATION ON LIABILITY WAS AND IS AN EXPRESS PART OF THE BARGAIN BETWEEN ONLINK AND USER AND WAS A CONTROLLING FACTOR IN THE SETTING OF THE FEES PAYABLE TO ONLINK. HOWEVER, THERE IS NO LIMITATION ON DIRECT LOSS, CLAIM OR DAMAGES ARISING AS A RESULT OF FRAUD OR WILLFUL MISCONDUCT, OR IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS.

7. General

7.1          Notices.  All notices, demands or consents permitted under this Agreement shall be in writing and shall be delivered personally or sent by certified or registered mail to the respective parties at the addresses set forth above and on the signature page of this Agreement or at such other address as shall be given by either party to the other in writing pursuant hereto.

7.2          Waiver.  No waiver, amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by the party against whom such waiver, amendment or modification is sought to be enforced.  No failure or delay by either party in exercising any right, power or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy.

7.3          Assignment.  Neither OnLink nor User may assign any of its rights or delegate any of its obligations under this Agreement to any third party without the express written consent of the other party, except that OnLink may assign this Agreement to any affiliate of OnLink and to a successor to its business (whether by purchase or otherwise).

7.4          Force Majeure.  Neither party shall be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of service, resulting directly or indirectly from acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, interruptions in telecommunications or Internet system or network provider system, failure of third party equipment and/or software, or any other occurrences which are beyond such party’s reasonable control.

7.5          Governing Law. The validity, construction and performance of this Agreement shall be governed by and construed in accordance with the internal substantive laws of the Commonwealth of Pennsylvania.

7.6          Arbitration.  All disputes, controversies or differences arising out of or relating to this Agreement or the breach thereof which cannot be settled by mutual accord, shall be settled by arbitration, conducted in Philadelphia, Pennsylvania, in accordance with the rules of the American Arbitration Association.  Notice of a desire to arbitrate any such dispute, controversy or difference shall be deemed sufficient if mailed, prepaid by registered mail, return receipt requested, to the party at its last known address.  The award of such arbitration shall be final and binding upon both parties hereto.  The arbitrator shall award the substantially prevailing party its attorneys’ fees and the costs of the arbitration.

7.7          Relationship of the Parties.  It is expressly agreed that no agency, joint venture, partnership, or any employment relationship is created by this Agreement.  The parties are in all respects independent contractors.

7.8          Publicity.  OnLink will not use User’s name, or logo in any public display including; press releases, marketing and sales materials and user literature, without written permission from User.

7.9          Counterparts.  This Agreement may be executed in counterparts, each of which will be deemed an original, and all of which together constitute one and the same instrument.

 

Updated 10/12/17