1. General. These GolfNow Entertainment and Off-Course Terms and Conditions (the “Terms”) shall govern Client’s use of the products and services provided by GolfNow, LLC (“GolfNow”) or a subsidiary or affiliate of GolfNow, as applicable. For purposes of these Terms, any reference to Client shall mean the legal entity listed as “Client” on the Order Form (including any applicable addenda) or other agreement referencing these Terms between Client and GolfNow (collectively, “Order Form”). These Terms and the applicable Order Form shall be collectively referred to as the “Agreement”.
This Agreement shall constitute a legally binding agreement by and between Client and GolfNow, and Client accepts and agrees to the terms of the Agreement by (1) clicking a box indicating acceptance or (2) executing an Order Form that references these Terms. GolfNow, in its sole discretion, may modify or update these Terms from time to time, effective upon posting an updated version of these Terms on the applicable GolfNow website. Client is responsible for regularly reviewing the Terms for such updates, and continued use of the GolfNow products and services after any such updates or modifications shall constitute Client’s consent to such changes. Client’s access and use of the applicable GolfNow products and services shall at all times be governed by the then current Terms, including in the event Client accesses or uses GolfNow’s products or services without an active Order Form.
2. Term and Termination. The Initial Term of this Agreement, along with any applicable Renewal, shall be for the period of time as set forth in the Order Form (the “Term”), and shall be non-cancellable except as provided herein. Either Party may immediately terminate this Agreement in the event that the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days’ written notice of such breach. Furthermore, GolfNow reserves the right to immediately suspend Client’s access to the Services in the event that either Client is in breach of this Agreement or engaged in any unauthorized conduct (including any violation of the terms of this Agreement or any applicable law or third party right).
3. GolfNow Services. During the Term and subject to the terms of this Agreement, GolfNow shall provide Client with the GolfNow Services set forth in the Order Form (“Services”) in exchange for the Total Payment.
(a) GolfNow Distribution. Where the Services include GolfNow Distribution, GolfNow shall make the Inventory (as defined in the Order Form) at Client’s Facilities (“Inventory”) available for booking through GolfNow’s branded websites and mobile apps (including but not limited to GolfNow.com and/or TeeOff.com), partner or affiliated websites, or any other distribution channel (collectively, the “GolfNow Platform”). “Reservations” shall refer to completed bookings of the Inventory through the GolfNow Platform. Client shall have the right to approve the price and amount of all non-Trade Time Inventory offered through GolfNow’s Distribution Channels. GolfNow shall receive Inventory and rates at least as favorable to GolfNow as the most favorable Inventory and rates offered or provided by Client to any other third-party distribution service or any third party with substantially similar features, functionality, or capabilities as those provided by the GolfNow Platform. Client shall honor all Inventory reserved through the GolfNow Platform and shall treat all customers originating from the GolfNow Platform with proper courtesy and respect. Client shall make every effort to maintain its Inventory in the most up-to-date manner possible, with proper communication to GolfNow regarding changes in availability, facility conditions, or other factors that may impact the Inventory, and the Parties shall work cooperatively to minimize double-bookings and cancellations.
(b) Integrations. If applicable, Client shall provide GolfNow with access to all of Client’s internal and external systems (including third party systems licensed to Client) necessary for GolfNow to provide the Services. Client acknowledges and agrees that all third-party vendors must have a written agreement with GolfNow before GolfNow will create any interface between that third-party vendor’s software and the GolfNow Platform, and when necessary, Client will reasonably cooperate with assisting GolfNow in the securing of such agreement.
4. Payment Terms. Client’s payment to GolfNow for the Services shall be the “Total Payment” set forth on the Order Form.
(a) Commissions. If applicable, Client shall pay any Commissions due to GolfNow on a quarterly basis no later than thirty (30) days following the end of the applicable calendar quarter. At the time Client makes each Commissions payment, Client shall provide GolfNow with a statement containing any details reasonably necessary to evidence the calculation of the applicable Revenue Share payment.
(i) Records. Client shall keep all books and records adequate to support Client’s calculation of the Commissions hereunder. If, in good faith, GolfNow believes there has been a miscalculation of any Commissions payment, GolfNow may audit Client’s books and records during normal business hours, and with no less than thirty (30) days prior written notice, to inspect and audit such applicable books and records which are reasonably necessary for adequate evaluation of the calculation of the Commissions. Such audits shall not take place more than once per calendar year. Mutually agreed upon adjustments in favor of GolfNow arising from any such audit of Client shall be paid by Client to GolfNow within thirty (30) days following conclusion of the audit. If the Parties disagree on whether an adjustment is appropriate, the Parties shall engage in good faith discussions among senior executives in an attempt to resolve the dispute. Any information reviewed or disclosed during such audit will be considered Confidential Information of Client. Client reserves the right to exclude or redact any information from such audit that is not reasonably necessary to determine the Commissions.
(b) Trade Payment. Where the Total Payment includes Trade, Client shall provide GolfNow with the Trade Times set forth on the Order Form, subject to Section 5 below.
5. Trade Times.
(a) Trade Times. A single “Trade Time” is defined as one (1) unit of Inventory, which shall be for the standard duration of Inventory available at Client’s Facilities and shall include one to six (1-6) individual reservations (“Trade Reservations”), made available for sale by GolfNow for its own benefit. GolfNow shall have the ability to sell Trade Times at a price that is at the discretion of GolfNow (except where mutually agreed upon otherwise). Trade Times shall be available for purchase on the GolfNow Platform and Client’s website (if applicable).
(b) Trade Times with Rolling Terms. Each Trade Time with Rolling Terms shall be made available for sale beginning on the first day of the month and will be made available on subsequent days throughout the month until a maximum of thirty- one (31) Trade Times (or 124individual Trade Reservations) have been sold each month. Any Trade Time that ‘rolls’ to a subsequent day may be posted at any time during that day’s Bookable Window, regardless of the Trade Load Time.
(c) Trade Times with Non-Rolling Terms: Trade Times with Non-Rolling Terms will not roll to subsequent days if they go unsold on a given day.
(d) Trade Time Posting. The Inventory provided as Trade Times shall be posted during the Bookable Window (defined below), or at the specified Trade Load Time(s) set forth in the Order Form. “Bookable Window” shall mean any time throughout the day unless as specified Bookable Window is defined otherwise in the Order Form. For the avoidance of doubt, if the Order Form includes specified TradeLoad Time (s), but not a defined Bookable Window, the applicable Bookable Window shall be any time throughout the day. In addition to the above, GolfNow may also offer Trade Times for sale as “Pay Now & Save” reservations at any time throughout the Bookable Window. For the avoidance of doubt, once a Trade Time has been sold as a “Pay Now & Save,” it will be removed from the applicable Trade Load Time or Bookable Window.
(e) Availability. In the event a Trade Time (full or partial), Trade Load Time, or Bookable Window becomes unavailable on a given day for any reason, including but not limited to a scheduled event, maintenance, or the applicable Inventory was sold by Client outside of GolfNow’s Distribution Channels, GolfNow may re-post the applicable Trade Times or individual tee times at any available time(s) during the Bookable Window on either the same day or earlier/subsequent date(s).
(f) Smart Trade (TeeOff.com only): If noted on the Order Form, GolfNow may employ the “Smart Trade” system for selling Trade Times, whereby the Trade Time Inventory shall include “auto-switching” the Trade Time inventory from floating time slots to a fixed time slot if the target window becomes more than 80% booked.
(g) Trade Over-Sell. In the event that GolfNow inadvertently oversells Trade Reservations due to a technology or interface error,GolfNow shall block future Trade Reservations to make up for such oversell. If the oversold Trade Reservations are valued at more than One Thousand Dollars ($1,000), GolfNow agrees to issue a refund check to Client. For the avoidance of doubt, if the oversold rounds are valued at less than One Thousand Dollars ($1,000), GolfNow shall reimburse Client via future blocked trade rounds.
6. Acceptable Use. Client shall use the Services in accordance with this Agreement for purposes of operating its business and not for further resale or distribution. Client shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party; (b) use the Services to collect, transmit or process () infringing, offensive, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; or (ii) send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; (c) interfere with the integrity of performance of the Services or any of GolfNow’s and/or its licensors’ proprietary technology, including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, the documentation, training materials, templates, and other tangible or intangible technical material or information and any components thereof, used by GolfNow or its third party licensors and providers to provide the Services (collectively referred to herein as “GolfNow Technology”; references to the Services shall also include the GolfNow Technology); or (d) attempt to gain unauthorized access to the Services; (e) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Services; (f) access the Services for the purpose of building a similar or competitive offering; (g) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Services or any part thereof or otherwise attempt to discover any source code or modify the Services. Client shall: (x) notify GolfNow customer support as promptly as practicable by email, fax or telephone of any unauthorized use of any password or account or any other known or suspected breach of security; (y) report to GolfNow as promptly as practicable and use reasonable efforts to stop immediately any copying or distribution of any Client proprietary information that is known or suspected by Client through the Services; and (z) not impersonate another User or provide false identity information to gain access to or use the Services. If applicable, Client is responsible for the compliance with this Agreement of all its personnel or contracts that utilize the Services (“Users”), for charges incurred under Client’s account, and for using commercially reasonable efforts to ensure that its Users maintain the confidentiality of their passwords and user names. Certain editions of the Services offer integration capabilities via an application programming interface, or API. The number of API calls Client can make per account at no additional charge is limited (excluding calls resulting from use of GolfNow End User applications, golfnow.com, and GolfNow- certified applications) to an aggregate maximum of two hundred thousand (200,000) calls/day/account. Calls to the API that exceed the daily maximums in the preceding sentence may require payment of additional charges.
7. Data Privacy.
(a) Definitions.
(i) “Applicable Law” means all applicable laws, rules, regulations, rulings, judgments, directives, or other requirements of any governmental authority in any country or jurisdiction, as may be amended or otherwise revised from time to time and all applicable, current industry self-regulatory principles, including but not limited to the CAN-SPAM, TCPA, and Privacy Laws.
(ii) “Personal Data” means any information that relates to an individual and that, alone or in combination with other data, can be used to identify, contact, or precisely locate an individual, or other information that constitutes “personal data” or “personal information” under Privacy Laws.
(iii) “Privacy Laws” means all Applicable Laws and third-party platforms restrictions relating to the Processing of Personal Data, privacy and security that may exist in any relevant jurisdiction, including but not limited to CCPA and GDPR.
(iv) “Process”, “Processing” and words of similar nature mean using, accessing, storing, securing, sharing, disclosing, altering, destroying and deleting Personal Data and other actions as set forth in the applicable Privacy Laws.
(b) GolfNow Account Data. GolfNow shall own the rights to all Personal Data collected by GolfNow directly from end users of the GolfNow Platform (“End Users”), including but not limited to, name, phone number, login credentials, reservation details, requests for amenities such as food orders, information about other End Users, and other profile information (collectively, “GolfNow Account Data”).
(c) Shared Data. When applicable, GolfNow shall provide Client with the portions of GolfNow Account Data necessary to enable End Users to interact with Client through the Services and for Client to fulfill certain transactions made through the Services (e.g., End User name, phone number, and reservation details for GolfNow.com bookings). Except as otherwise provided in this Agreement, GolfNow and Client, with respect to the portion of the GolfNow Account Data that Client may receive from GolfNow, each Client and GolfNow will independently own such data (the “Shared Data”), provided, however, Client shall not “sell” Shared Data as “sell” is defined under applicable Privacy Laws, including but not limited to the CCPA. Client represents and warrants that Client will comply with all Applicable Law, including but not limited to CAN-SPAM, CIPA, TCPA, Telemarketing Sales Rule, CCPA, and/or any other similar Privacy Laws, with respect to (i) any and all Shared Data; and (ii) Client’s use of Shared Data in conjunction with the Services, including but not limited to Client’s distribution of marketing communications (via e-mail, text message, or otherwise) through the Services, whether by Client directly or by GolfNow on Client’s behalf or at Client’s direction. Client shall comply with its obligations as a “business” or “controller” under applicable law, including the CCPA for all Client Personal Data and Shared Data.
(8) Data Security. Industry standards have been set by the Payment Card Industry Data Security Standards (“PCI Standards”) for protection of customer information. GolfNow and Client both represent and warrant that they will comply with PCI Standards during the entire Term of this Agreement and thereafter with respect to customer Personal Data accumulated during the Term, and further agree to adhere to all other applicable standards, laws, rules, and regulations for protection of customer Personal Data to which they have access during the entire Term of this Agreement. GolfNow shall be free to provide certain required levels of access to contracted third party vendors that may need access to such data in order to provide the Services.
9. Intellectual Property.
(a) Client Intellectual Property Rights. Client hereby grants GolfNow during the Term a revocable, limited, non-exclusive, royalty-free, worldwide license to use certain materials provided by Client, including but not limited to Facility information, logos, branding, images, and video (the “Client Materials”), as may be necessary for GolfNow to provide the Services to Client; and (ii) to promote Client and provide the marketing services contemplated herein. Client retains all right, title and interest, including all related intellectual property rights, in and to the Client Materials. Client represents and warrants that any Client Materials provided to GolfNow will be fully cleared (e.g. for copyrights, rights of publicity, etc.) for commercial use in all mediums (including, without limitation, on the internet, in print, and via mobile distribution channels).
(b) GolfNow Intellectual Property Rights. GolfNow and its licensors retain all right, title and interest, including all related intellectual property rights, in and to the GolfNow Services Documentation. This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the GolfNow Services. Any GolfNow-related names, logos, and the product or service names associated with the Services are trademarks of GolfNow or its licensors or other affiliated third parties, and no right or license shall be deemed granted to use them to Client, any End User, or any other third party without the prior, express written consent of GolfNow. GolfNow shall be free to use or incorporate and permit its third party licensors to use or incorporate into the GolfNow Services any suggestions, enhancement requests, recommendations or other feedback provided by Client and End Users relating to the GolfNow Services, and all such recommendations shall be free from any confidentiality restrictions that might otherwise be imposed upon GolfNow hereunder, all of which once incorporated shall be the sole and exclusive property of GolfNow and its licensors.
10. Confidentiality.
(a) Definition. “Confidential Information” means all non-public information of a Party (“Disclosing Party”) disclosed to the other Party under this Agreement (“Receiving Party”), whether orally or in writing and whether or not designated as confidential at the time of disclosure, including without limitation the terms and conditions of this Agreement (including pricing and other terms), business information, specifications, research, software (in the case of GolfNow, including but not limited to, the GolfNow Services, flow of screens, and Documentation), trade secrets, designs, drawings, flow charts, data, computer programs, marketing plans, budget figures, and other financial and business information of the Disclosing Party.
(b) Treatment of Confidential Information. Except with the Disclosing Party’s permission, the Receiving Party shall not use any Confidential Information of the Disclosing Party for any purpose other the performance of the Receiving Party’s obligations under this Agreement, and shall not disclose the Confidential Information to any third party other than its contractors or authorized representatives who are subject to binding obligations of confidence substantially similar to those set forth in this Agreement and solely for the purposes of this Agreement.
(c) Permitted Disclosure. The obligation of nondisclosure set forth herein shall not apply to any Confidential Information that: (i) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party, including, by way of example but not limitation, the posting of Client materials by Client on any publicly-available portions of the Services; (ii) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party; (iii) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party; or (iv) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information (except for patentable subject matter, which shall not be subject to this exception); or (v) the Receiving Party is required to disclose by any applicable law, by any rule or regulation of any court or government agency of competent jurisdiction, or pursuant to legal process; provided that the Receiving Party provides the Disclosing Party with prompt written notice of the requirement to disclose, reasonable assistance in the opposing or limiting of such disclosure and limits such disclosure to that strictly required by such court, government agency or legal process.
(d) Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Disclosing Party will be entitled, in addition to any other available remedies, to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages. Notwithstanding damages. Notwithstanding the foregoing, Client irrevocably waives any right to enjoin or restrain the operation of the GolfNow Services as a whole, or GolfNow’s, its providers’, or its customers’ use of any content or other material used or displayed through the Services other than Client’s Confidential Information.
11. Limited Warranties and Remedies; Disclaimers. Both Parties represent and warrant that: (a) they have the authority to enter into this Agreement and that their signatories are duly authorized and empowered to sign this Agreement on their behalf; and (b) they will comply with all applicable laws, ordinances, statutes, regulations and rules, and that they have the power to settle fully and completely all claims, causes of action, demands, charges and liabilities arising out of or relating to this Agreement. Client represents and warrants to GolfNow that any intellectual property provided to GolfNow by Client (including without limitation, any photographs, drawings, or works of art) do not violate the rights of any third party. GolfNow will provide the Services in a professional and workmanlike manner and free from any unreasonable defects, and GolfNow will use all reasonable means to fix any defect in the Services that may arise. Notwithstanding the foregoing, in the event that Client creates its own content and/or software, and/or utilizes third party software to deliver services to the Client’s Users, such content and software or services are not included within this Limited Warranty and GolfNow is not responsible for any damages or remedies of any kind in connection with Client’s content and/or use of such software or services. GolfNow shall notify Client in advance of any updates to the Services and will provide appropriate training and/or materials to Client concerning all updates. Client and its authorized Users shall use the Services only in accordance with this Agreement. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER GOLFNOW NOR ITS PROVIDERS MAKE ANY REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE GOLFNOW SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER GOLFNOW NOR ITS PROVIDERS REPRESENT OR WARRANT THAT (A) THE USE OF THE GOLFNOW SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE GOLFNOW SERVICES WILL MEET CLIENT’S OR END USERS’ REQUIREMENTS OR EXPECTATIONS, OR (C) THE GOLFNOW SERVICES THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, SO LONG AS GOLFNOW HAS TAKEN REASONABLE STEPS TO SAFEGUARD AGAINST SUCH VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE GOLFNOW SERVICES, ARE PROVIDED TO CLIENT STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND IMPLIED OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY GOLFNOW AND ITS PROVIDERS. With respect to malfunctioning Services, GOLFNOW’S entire liability and Client’s exclusive remedy shall be the repair/replacement of the impacted Services.
12. Limitation of Liability. EXCEPT FOR THIRD PARTY LIABILITIES AND EACH PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES BASED ON LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION OR LOSS OF DATA), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF THE CAUSE OR THE FORM OF ACTION (WHETHER BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE). IN NO EVENT SHALL GOLFNOW’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID OR OWED BY CLIENT HEREUNDER (WHICHEVER IS GREATER) OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE AMOUNT PAID BY CLIENT HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT CLIENT’S PAYMENT OBLIGATIONS UNDER THE TOTAL PAYMENT SECTION OF THE ORDER FORM.
13. Indemnification.
(a) By Client. Client shall indemnify, defend, and hold harmless GolfNow, LLC and its parents, affiliates, officers, directors, employees, contractors, vendors, agents, and representatives, (collectively, the “GolfNow Indemnified Parties”), from any and all claims, demands, actions, suits, investigations, proceedings, damages, losses and liabilities, including reasonable attorney’s fees and expenses (collectively, “Losses”) as incurred, arising from or related to any third-party claim (a) that any materials provided to GolfNow by Client, or utilized by Client in its use of the GolfNow Services infringe, misappropriate, or otherwise violate or conflict with applicable law or any third-party’s intellectual property rights or rights of privacy or publicity; or (b) to the extent arising from or relating to (i) the breach of Client’s obligations, representations, or warranties under this Agreement, including any third-party claim alleging any act, omission, or fact that constitutes a breach; (ii) any death, personal injury, bodily injury to persons, or damage to property caused by Client or occurring at Client’s Facility(ies); (iii) any dispute between Client and a customer, including in connection with the customer’s experience at Client’s Facility(ies), without regard for the basis of such claim; and (iv) any negligence or willful misconduct of Client or Client’s employees, vendors, agents or other personnel.
(b) By GolfNow. GolfNow agrees to defend, indemnify, and hold harmless Client, its parents, affiliates, officers, directors, partners, employees, contractors, vendors, guests, volunteers, agents, and representatives from and against all Losses arising out of or resulting from any act undertaken or committed by GolfNow, or any contractors hired or engaged by GolfNow, in connection with the performance of GolfNow’s obligations under this Agreement. GolfNow also agrees to defend, indemnify, and hold harmless Client from any liability resulting from any claim, action or cause of action which may be asserted by third-parties arising out of the performance of the GolfNow’s obligations pursuant to this Agreement, except those actions or liabilities which are due to the misconduct or negligence of Client.
14. Insurance. Client acknowledges and agrees that it will at all times during the Term and at its own expense, keep in full force and effect the following insurance coverages: (a) commercial general liability insurance for limits of not less than One Million Dollars ($1,000,000.00) per occurrence for bodily injury and property damage, product liability, personal and advertising injury and completed operations liability; and (b) worker’s compensation insurance in compliance with applicable law; (c) employers’ liability insurance with a limit not less than One Million Dollars ($1,000,000.00); and (d) property insurance on an “all risk” basis with replacement cost coverage for property and equipment in care, custody, and control of the insured. GolfNow, LLC must be listed as an “additional insured” on the policies described above. Promptly after signing this Agreement, Client will deliver to GolfNow certificates of insurance for the required coverage. All required insurance will be placed with carriers rated no lower than A-VII in the most current edition of AM Best’s Property Casualty Key Rating Guide and will provide thirty (30) days’ written notice of cancellation or non-renewal, which notice shall be provided in accordance with these Terms. The stipulated limits of coverage will not be construed as a limitation of any potential liability to GolfNow. Failure to request evidence of insurance is not a waiver of Client’s obligation to obtain the required insurance.
15. Dispute Resolution. This Agreement shall be governed, interpreted and construed under the laws of the United States and the State of Florida without regard to any conflict of law principles. The Parties shall act in good faith and use commercially reasonable efforts to promptly resolve any claim, dispute, controversy or disagreement (each a “Dispute”) between the Parties under or related to this Agreement. Any Dispute arising out of this Agreement which cannot be resolved by the Parties shall be governed exclusively by binding arbitration initiated and conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association, conducted in the Orlando, Florida, metropolitan area. The arbitrator shall have the power to award reasonable attorneys’ fees and costs to the prevailing Party in any arbitration, and either Party shall have the right to take appropriate action to enforce any arbitration award in any court having jurisdiction over the applicable Party.
16. Binding Nature; Assignment. This Agreement shall be binding upon GolfNow and Client, and their respective successors and assigns; provided, however, that Client may not assign this Agreement or any of its rights or obligations hereunder, without the prior written consent of GolfNow, which consent shall not be unreasonably withheld, conditioned, or delayed. Any assignment or transfer in violation of this Section shall be void and of no force or effect. Any subcontractors retained by GolfNow to perform certain obligations hereunder shall be bound by and their actions are governed by this Agreement as if GolfNow itself was performing such obligations.
17. Export Control. Client and GolfNow agree, in connection with Client’s use of the Services, to comply with all applicable export and re- export laws and regulations. GolfNow makes no representation that the Software or Services is appropriate, will comply with applicable laws, or available for use in locations other than the United States of America.
18. Taxes. Client represents and warrants that it will be responsible for the payment of all taxes it may incur in connection with the performance of this Agreement or use of GolfNow Services. Client will indemnify, defend and hold GolfNow harmless from any liability incurred by GolfNow in connection with Client’s failure to comply with this Taxes provision.
(a) Sale of Inventory or Other Items to End Users: With regard to the sale by Client of Inventory or other taxable items directly to an End User through or in connection with services provided by GolfNow under this contract, Client will, as required by applicable laws, collect and remit all applicable taxes relating to consideration paid by End Users directly to Client. GolfNow will collect and remit all applicable taxes relating to consideration paid directly to it by End Users.
(b) Barter for or Cash Purchase of GolfNow Services by Client: The license by Client of some or all of GolfNow Services (including software) under this contract may be subject to sales or use tax in the state(s) in which Client operates. GolfNow recognizes that the value to Client of its Services, including software solutions provided under this contract, lies principally in the provision of access to and effective execution within the market created by GolfNow. Client and GolfNow agree that the consideration due from Client to GolfNow under this contract that is applicable to software equals the lesser of twenty percent (20%) of the total remuneration collected by GolfNow from End Users for Inventory (or cash from Client) under the contract or $2,500 (“The Allocation”) calculated on a per account (not per course or facility) basis. To the extent that the state(s) in which Client operates impose tax on the license of software provided through this contract, tax will be computed on The Allocation, and will be payable by Client to GolfNow for remittance to the appropriate tax authority.
19. Survival. Sections 1, 2, 7(a) and (b), 9 through 13, 15, 18 and 20 shall survive notwithstanding the expiration or termination of thisAgreement.
20. Miscellaneous. This Agreement shall constitute the entire understanding of the Parties with respect to the subject matter hereof and supersedes any and all prior understandings and agreements, written or oral, relating thereto between Client and GolfNow. Additionally, this Agreement shall terminate and supersede any and all prior Order Form(s) entered into between Client and GolfNow regarding the Facility(ies) and Products/Services listed herein. For the avoidance of doubt, this Agreement shall not terminate and/or supersede any non-Order Form agreements between Client and GolfNow or any prior Order Form(s) or other agreement(s) between Client and GolfNow relating to facilities not listed in this Agreement. The Parties acknowledge and represent that they have carefully read and fully understand all of the terms and conditions set forth in this Agreement. The Parties further acknowledge and represent that they enter into this Agreement freely, knowingly and without coercion and based on their own judgment and investigation of this matter, and not in reliance upon any representations or promises made by any Party, its attorneys, or its agents. The Parties hereby acknowledge and agree that GolfNow is an independent contractor and not an employee, agent, joint venturer or partner of Client or any of its affiliates. Nothing in this Agreement shall be interpreted or construed as creating or establishing a joint venture, partnership, employment, or agency relationship among any of the Parties as a result of this Agreement. The headings in this Agreement are intended for convenience of reference and shall not affect its interpretation. None of the Parties shall have any power to obligate or right to bind any other Party. This Agreement may be executed in one or more counterparts, with electronic exchange of signatures (e.g., pdf and DocuSign) sufficient to bind the Parties. Notices of either Party as required herein shall be sent to the addresses provided in the attached Order Form.