LAST UPDATED 6/1/2020
“Supreme” shall mean Supreme Golf, Inc., a Delaware corporation. “Operator” shall mean the legal entity listed as such on the attached Golf Course Distribution and Services Agreement (together with these Standard Terms and Conditions, the “Agreement”). The parties acknowledge and agree that except as otherwise provided herein, these Standard Terms and Conditions, which may also include certain terms and conditions required by any third parties with which Supreme has contracted in order to provide the software and services referenced in the Agreement or herein to Operator, (“Terms and Conditions”) shall be updated and amended from time to time by Supreme in its sole and absolute discretion. Operator’s use of the Supreme’s software and services as designated in the Agreement and described herein shall be subject at all times to the then current Terms and Conditions, as amended from time to time by Supreme in its sole discretion.
1. Supreme Software. To the extent Supreme provides Operator with any proprietary software (including both source code and executable format) under the Agreement (whether such software is owned by Supreme or is owned by a third-party for which Supreme has a license to use and/or to provide to Supreme’s customers, including, but not limited to, Operator), Supreme grants Operator a limited, non-exclusive, non-transferable license to utilize the software as set forth on and designated in the Agreement (collectively, the “Software”). Operator may use the Software for the purpose of managing and marketing Operator’s golf course properties and shall not sell, sublicense, lend or otherwise transfer the Software to others. Neither Operator, nor any third party working with or on behalf of Operator, may reverse engineer, decompile, disassemble, or customize the Software including, but not limited to, creating any software interface with the Software for the purpose of selling or marketing tee times through the internet or any internet site, without the express knowledge and written consent of Supreme. The parties acknowledge and agree that except as otherwise provided herein, the Terms and Conditions shall be reasonably updated and amended from time to time by Supreme in its sole discretion.
2. Supreme Services. Supreme shall provide one or more certain services to Operator as set forth on and designated in the Agreement (whether such services are owned by Supreme or is owned by a third-party for which Supreme has a license to use and/or to provide to Supreme’s customers, including, but not limited to, Operator), which may include, but shall not be limited to, tee time inventory management, tee sheet/point of sale, membership services, revenue management, website services, marketing services, setup/training/data implementation services, 24/7 phone and email support, and/or any other agreed upon services (collectively, the “Services”) for the purpose of marketing, promoting and selling Operator tee times and/or enhancing Operator’s technology. Supreme shall provide access to Operator tee times to any of its branded websites, partner or affiliated websites, or any other distribution channels offered by or designated by Supreme from time to time (which may include, but shall not be limited to, Supreme Golf, GolfBook and/or any other distribution channels or platform) (collectively, the “Supreme Platforms”), and the technology delivery methods may include, but shall not be limited to, website, smart phone applications, and through other third-party tee time distributors, booking engines, aggregators and/or wholesalers. Supreme shall apply the latest version of its Services to the marketing and administration of Operator tee times. Supreme shall notify Operator in advance in writing of any Supreme Services updates and will provide appropriate training and/or materials to Operator concerning all updates. Operator shall provide Supreme with access to all of the internal and external systems (including third party systems licensed to Operator) necessary for Supreme to provide the Services. Operator shall honor all tee times reserved through Supreme’s distribution channels and shall treat all golfers originating from Supreme with appropriate customer service. Operator shall make every effort to maintain its inventory in the most up-to-date manner possible, with proper communication to Supreme regarding changes in availability, Operator conditions, etc. The parties shall work cooperatively to minimize double bookings, cancellations, etc.
3. Supreme Owned Hardware. Unless otherwise agreed to by the parties in writing, no hardware shall be supplied to Operator. To the extent that Supreme has provided Operator with any hardware, all such hardware shall remain Supreme’s property and shall be returned by Operator to Supreme within fourteen (14) days upon the earlier of (i) termination of the Agreement due to breach, or (ii) expiration of the Term, unless any such hardware was purchased and paid for in full by Operator. In the event Supreme provides Operator with one or more iPads or any other electronic device(s), Operator shall be responsible for all monthly data fees unless otherwise agreed to by the parties
4. Golf Courses/Locations. Operator shall use the Software and Services only at Operator’s website(s) and mobile application(s) (or any other website and/or mobile application provided by or approved by Supreme) (the “Approved Locations”). Operatory may temporarily transfer the Software and Services to a different website for testing purposes but in no case for more than twenty-four (24) hours unless Operator provides Supreme advance notice, in writing, identifying the location of the test site. Operator acknowledges and agrees that it will purchase an additional license from Supreme if Operator desires to use the Software and Services for commercial purposes on a different site. Any additional licenses required by Operator will be entered into on terms and conditions negotiated and specified in a separate license agreement between Supreme and Operator.
5. Restrictions on Use. Operator agrees to use the Software and Services only for Operator’s business. Operator shall not (a) permit any parent, subsidiaries, affiliated entities or third parties to use or have access to the Software and Services, (b) process or permit to be processed the data of any other party captured through any site other than the Approved Locations, (c) permit any other party to create any data connections to the Software to use such data for the display, offer, or sale of any retail goods, except that Operator shall be permitted to push data to third parties whose services are used to facilitate Operator’s business, which services may include, but shall not be limited to, merchant processing, product shipping, web analytics, state sales tax reporting or the like, or (d) permit, give, or authorize any other party to possess the Software source code or executable code, except that Operator, its employees, and its software programming contractors are permitted to possess, view, and modify the Software source code to debug or create any improvements necessary to repair, modify or enhance the Software (“Improvements”). Improvements may be made by either party hereto as approved by Supreme.
6. Proprietary Rights/Ownership of Property. Operator acknowledges and agrees that as between Operator and Supreme, except for the license granted under the Agreement, Supreme retains, on its own behalf and on the behalf of any third party with which Supreme has contracted in order to provide the Software and Services to Operator, (i) title and interest in and to the Software and Services (including any Improvements created thereto by or for Supreme and including any Improvements created by Operator after the Effective Date); and (ii) all copyrights, trademarks, patents, trade secrets, and other intellectual and proprietary rights in and to the foregoing. Notwithstanding anything else herein, each party reserves all intellectual property rights not expressly granted hereunder. Except as expressly provided otherwise herein, the Agreement will not be construed to assign or transfer from either party hereto to the other party any intellectual property rights developed or acquired after the Effective Date.
7. Fees and Pricing. Operator’s payment to Supreme shall be made pursuant to the “Payment Terms” set forth in the Agreement and/or on any schedule or exhibit attached thereto. If applicable, Operator shall have the right to approve the price and amount of all non-trade time inventory offered in one or more of the Supreme Platforms. Supreme shall receive tee times and rates equal to or better than those offered by Operator to any third-party distribution service. Operator acknowledges and agrees that Operator’s payment to Supreme is a material element of the Agreement, and that in the event that Operator does not comply with the payment requirements set forth in the Agreement and hereunder or otherwise breaches the Agreement (each a “Non-Compliance Event”), Supreme may, unless Operator cures such Non-Compliance event within thirty (30) days as stated in Section 8 below, terminate the Agreement and Operator shall be required to pay Supreme (i) all accrued but unpaid expenses through the date of such termination, plus (ii) any and all amounts due under the Agreement for the duration of the Term, including any remaining amount owed to Supreme (and/or any third parties that Supreme has contracted with in order to provide the Software and Services to Operator) for the unexpired portion of the Term.
8. Term and Termination. The Initial Term of the Agreement, along with any applicable Renewal Term, shall be for the period of time as set forth in the Agreement (collectively, the “Term”) and shall be non-cancellable except as provided herein. Either party may immediately terminate the Agreement in the event that the other party materially breaches and fails to cure such breach within thirty (30) days’ written notice of such breach. Upon termination of the Agreement, Operator shall immediately delete and return all Software (including all copies) and sign a statement certifying the same.
9. Marks and Intellectual Property. Except as expressly provided in the Agreement or herein, neither party will have any rights in the other party’s name, logo, service marks, trademarks, trade names, taglines or any other proprietary designation (“Marks”); however, Operator grants to Supreme a nonexclusive, sub-licensable, worldwide right to use Operator’s Marks for purposes of marketing, promoting, and providing the Services. Operator represents and warrants that the use by Supreme of Operator’s Marks will not infringe, violate or misappropriate the rights of any third party (including, without limitation, intellectual property rights). Operator will provide Supreme information about Operator’s facilities and Golf Course(s) (including but not limited to Golf Course photos, descriptions, logos, etc.) that Supreme may request from time to time, and Operator authorizes Supreme to publish such information on any Supreme Platform.
10. Data Security. Industry standards have been set by the Payment Card Industry Data Security Standards (“PCI Standards”) for protection of customer information. Both parties represent and warrant that they will comply with PCI Standards during the Term of the Agreement and thereafter with respect to customer data accumulated during the Term and further agree to adhere to all other applicable standards, laws, rules, and regulations for protection of customer data to which they have access during the Term. Supreme agrees that it will use systems, tools and security and take commercially reasonable steps to ensure Operator customer data hosted by Supreme is not accessed, redistributed, duplicated, or modified. Supreme 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 services.
11. Confidential Information. The parties acknowledge and agree that proprietary or nonpublic information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), directly or indirectly, and whether owned by the Disclosing Party or owned by a third party with which the Disclosing Party has contracted with in connection with the Software and Services, which information is marked as “proprietary” or “confidential” or, if disclosed orally, is designated as confidential or proprietary at the time of disclosure and is summarized in writing within thirty (30) days of disclosure, constitutes the confidential and proprietary information (“Confidential Information”) of the Disclosing Party. The Receiving Party shall retain in confidence and not disclose to any third party any Confidential Information of the Disclosing Party without the Disclosing Party’s express written consent, and the Receiving Party shall not use such Confidential Information except to exercise the rights and perform its obligations under the Agreement. Without limiting the foregoing, each party shall use at least the same procedures and degree of care which it uses to protect its own Confidential Information of like importance, and in no event less than reasonable care. Confidential Information shall not include information that (i) was already known by the Receiving Party without an obligation of confidentiality; (ii) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the Receiving Party; (iii) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the Receiving Party in breach of the Agreement; or (iv) was subsequently lawfully disclosed to the Receiving Party after the Effective Date by a person other than the Disclosing Party or developed by the Receiving Party without reference to any information or materials disclosed by the Disclosing Party. Nothing in the Agreement shall prohibit either party from disclosing Confidential Information of the other party if legally required to do so by judicial or governmental order or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process in a judicial or governmental proceeding (“Required Disclosure”); provided that the disclosing party shall (i) give the other party prompt written of such Required Disclosure in advance, (ii) cooperate with the other party in the event it elects to contest such disclosure or seek a protective order with respect thereto, and (iii) in any event only disclose the exact Confidential Information, or portion thereof, specifically requested by the Required Disclosure.
12. Limited Warranties and Remedies. 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 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 the Agreement. Operator represents and warrants to Supreme that any intellectual property provided to Supreme by Operator (including without limitation, any photographs, drawings, or works of art) does not violate the rights of any third party. Operator agrees to indemnify Supreme for any alleged or actual breach of this warranty. Operator and its authorized users will use the Software and Services only in accordance with this Agreement. Aside from these warranties, THE SOFTWARE AND SERVICES ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
13. Limitation of Liability. EXCEPT FOR THIRD PARTY LIABILITITES, 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).
14. Dispute Resolution. This Agreement shall be governed, interpreted and construed under the laws of the United States and the State of Texas 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. The parties agree that any Dispute arising out of this Agreement which cannot be resolved by the parties shall exclusively be heard in the courts located in Dallas County, Texas.
15. Assignment. This Agreement shall be binding upon Supreme and Operator, and their respective successors and assigns; however, this Agreement may not be assigned by either party without the prior written consent of the other party.
16. Relationship. At all times during the Term, the relationship of the parties shall be that of a independent contractors, and nothing herein shall be deemed in any way to create the relationship of (i) agent and principal, (ii) a partnership, (iii) a joint venture, or (iv) any other relationship other than that of independent contractors. Except as expressly set forth herein, neither party shall have the ability to obligate or bind the other party to any contractors or obligations of any type or kind.
17. Indemnification. Each party shall indemnify, defend and hold harmless the other party and its affiliates, and their respective members, managers, directors, officers, partners, agents, employees, managers, trustees, and any successors or assigns of any of the foregoing, for, from and against any and all third party claims, suits, actions, proceedings, losses, liabilities or expenses (including without limitation attorneys’ fees and all court costs and other expenses) to the extent caused by (i) the indemnifying party’s breach of any covenant, representation, warranty, or other material term of the Agreement, (ii) the indemnifying party’s negligence or willful misconduct, or (iii) the violation by the indemnifying party of any applicable law or regulation in connection with the Agreement.
18. Force Majeure. Supreme shall not be deemed to be breach of the Agreement nor liable for a failure or delay in performing any of its obligations under the Agreement if such failure or delay results from events, circumstances, or causes beyond its reasonable control, including without limitation network outages, transmission failures, system failures inherent in the technology industry (such as hacks, malware, hardware failures or software failures), changes in law or regulations, pandemics, fire, flood, disaster, civil riot, terrorism, or war.
19. Entire Agreement. This Agreement, including the Terms and Conditions, 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 Supreme and Operator. The parties acknowledge and represent that they have carefully read and fully understand all of the terms and conditions set forth in the 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 representation or promises made by any party, its attorneys or its agents.