End User License Agreement (EULA)
Last updated: December 18, 2018
Please read the following binding Agreement, to which you must agree to be bound in order to play the games called “The Golf Club Simulator (TGC for Simulators)” and “The Golf Club Simulator 2019 (TGC2019 for Simulators)” (known for the purposes of this Agreement as the “Game”). In the event you choose not to accept this Agreement or by technical means bypass/disable the “accept” mechanism, by installing, copying or otherwise using the Game, you shall be deemed to have agreed to be bound by the terms of the Agreement.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE DO NOT INSTALL OR USE THE GAME.
This Agreement between you and ProTee United B.V. (“PROTEE”) is effective as of the date
you (the “Player”) accept this Agreement (the “Effective Date”).
- Representation of Player. By playing the Game, the Player represents and warrants to PROTEE that Player has read this Agreement prior to accepting and is fully familiar with its contents.
- Definitions. The definitions in Schedule A form part of this Agreement. Terms may also be defined elsewhere in this Agreement.
- Use of Game. In consideration for the fee or other consideration which User lawfully pays for the Game, User has a personal, revocable, non-transferable, non-exclusive right to access and use the Game, subject to the terms of this Agreement. The words “use” or “using” in this Agreement means any time a User, directly or indirectly, with or without the aid of a machine or device, does or attempts to access, interact with use, display, view, print or copy from the Game, transmit, receive or exchange data or communicate with the Game, or in any way utilizes, benefits, takes advantage of or interacts with any function, service or feature of the Game, for any purpose whatsoever. For clarity, the “Game” as defined herein shall include all services provided by PROTEE in association with the Game.
- Ownership of the Game. PROTEE retains all right, title and interest in and to the Game including to all associated intellectual property and proprietary rights existing anywhere in the world and the Player acquires no right, title or interest in or to the Game. The Player warrants that Player will not commercially exploit or otherwise deal with any intellectual property, trademark, copyright, or any other part of the Game. For the avoidance of doubt, the Player shall not have any right, directly or indirectly, to reproduce or create derivative works of any products, software, documentation, or other aspects of the Game.
- User Content.
- “User Content” means and refers to any and all content, media and materials the Player submits to or in association with the Game, including designs, landscapes, images, writings, spoken statements, music, audio, video, video recordings, audio-visual works and recordings, animated and/or motion pictures, likenesses, vocal or other sounds, sound recordings, voices, voice reproductions, computer graphics and visual effects, postings and all derivative works, translations, adaptations or variations of same, regardless of the medium, format or form, now known or hereinafter developed or discovered, and such User Content may include any golf and golf course elements.
- Once the Player has submitted User Content, PROTEE will acquire title and ownership rights in or to such User Content. Ownership of the User Content will be deemed to have been granted to PROTEE immediately upon submission of the Player’s User Content and PROTEE shall have the right to execute any documentation required for such purpose as set out in the “attorney appointment” below. Once the Player submits or attempts to submit User Content, the Player shall have no right to prohibit, restrict, revoke or terminate any of the rights granted to PROTEE. Player waives all moral rights. The Player hereby constitutes and appoints PROTEE as Player’s attorney (“attorney appointment”) for the purpose of executing such documentation. The rights of PROTEE pursuant to this subparagraph constitute a power coupled with an interest, with rights of substitution and delegation, and are irrevocable.
- Without limiting the foregoing, PROTEE will be deemed to have an unqualified, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual and royalty free right, license, authorization and permission, in any form or format, on or through any media or medium and with any technology or devices now known or hereafter developed or discovered, in whole or in part, to store, maintain, use, reproduce, publish, transmit, modify, prepare derivative works of, adapt, reformat, make, sell, re-sell, distribute and otherwise exploit all or any portion of the User Content on the Game and any on other channels, services, and other distribution platforms, whether currently existing or existing or developed in the future, for any purpose whatsoever without accounting, notification, credit or other obligation to the Player.
- The Player is not entitled to and the Player will not receive any compensation or other consideration for the Player’s User Content or any use made of the Player’s User Content once submitted.
- Notwithstanding the foregoing, the Player acknowledges and agrees that PROTEE shall not be required or have any obligation to accept or use any submitted User Content (or take advantage of any or all of the particular rights and authorities granted or otherwise available) and PROTEE may, in its sole discretion, remove or refuse to use or do anything at all with respect to any User Content.
- The Player is solely responsible and liable for Player’s submissions of User Content and for compliance with the laws of the any applicable jurisdiction. If PROTEE determines, in its sole discretion, that the Player or any User Content violates this Agreement, or for any other reason, PROTEE reserves the right, at any time, without notice and without limiting any and all other rights that PROTEE may have under this Agreement, at law or in equity, to refuse to allow the Player to make additional submissions of User Content, revoke the Player’s right to use the Game and use any technological, legal, operational or other means available to enforce the terms of this Agreement.
- The Player represents and warrants that Player owns the rights to the User Content Player submits and has the unconditional right to grant all of the authorizations, permissions, approvals, consents, rights and licenses as described in this Agreement. If the Player does not exclusively own all of these rights, the Player must have all necessary authorizations, permissions, approvals, consents, rights and licenses from the owner(s) to enter into this Agreement, transfer ownership of such User Content to PROTEE and perform and comply with all of its obligations. The Player represents and warrants that the User Content does not violate this Agreement, any law or regulation or infringe upon or misappropriate any intellectual property, privacy, publicity or other rights of any party. Upon the request of PROTEE, the Player will furnish PROTEE any documentation and releases necessary and reasonably required to verify and substantiate the Player’s compliance with any or all of the terms and conditions of this Agreement.
- The Player acknowledges that other persons may have submitted User Content to PROTEE, may have made public or developed, or may originate, submit, make public or develop, material similar or identical to all or a portion of the Player’s User Content or concepts contained therein, and the Player understands and agrees that the Player will not be entitled to any compensation because of the use or exploitation thereof and the submission of User Content is not any claim or admission of novelty, priority or originality.
- Subject to the terms of this Agreement, the Player shall be entitled to:
- share screenshots and videos of the Player playing the Game; and
- comment publicly on the Game provided that such comments do not disparage or defame PROTEE, its personnel or the Game.
- Deletion of User Content. The occurrence of any of the following events, without limitation, may lead to a decision by PROTEE, in its sole discretion, to delete all, or a portion, of the User Content:
- when the User Content exceeds any applicable memory capacity;
- when the User Content violates this Agreement or the rules of PROTEE or any game distributors;
- when such deletion is necessary for operating, maintaining and managing the Game;
- when the User Content is an impediment to providing the Game;
- when the User Content is inappropriate (such as abusive, defamatory, obscene, pornographic, in violation intellectual property rights, or unacceptable to PROTEE); and/or
- when PROTEE determines it to be necessary for other reasons.
- Right To Provide Information To Law Enforcement Officials. PROTEE reserves the right to provide information to law enforcement officials, governmental agencies and pursuant to judicial or regulatory compulsion, to protect its interests in the Game or to comply with legal, regulatory, audit and compliance obligations.
- Copyright Infringement. If the Player believes any User Content violates the copyright of any other party, the Player can notify PROTEE by providing notice to PROTEE. A notice of infringement submitted by a Player must be a written communication that includes the following information:
- the name and contact information of the Player submitting the notice;
- identification of the copyrighted work claimed to have been infringed;
- identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit PROTEE to locate the material; and
- a statement that the Player has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner or the law.
- Alterations to the Game. The Player shall not copy, alter, modify, disassemble, reverse engineer, or decompile the Game, without the prior written consent of PROTEE. If such a prohibition is not permitted pursuant to applicable law, the Player shall provide PROTEE written notice prior to undertaking any such reverse engineering and shall give PROTEE a reasonable amount of time to provide any interface information required by law prior to commencing such reverse engineering. At PROTEE’s request or upon completion, the Player agrees to promptly return to PROTEE any and all of these materials and all copies and notes that may have been made.
- Prohibited Conduct. The Player agrees that Player will not engage in any of the following conduct:
- violate this Agreement or obstruct the operation of the Game;
- cause damage to PROTEE’s or the Game’s credibility or reputation;
- use any cheat codes or cheat devices, including but not limited to any third party tools or proprietary developed code sets or tools;
- anything that will violate or that has a possibility of violating the intellectual property rights of PROTEE or others or the property, privacy or the rights of likeness of others;
- anything that alters or deletes information of PROTEE or others;
- pretend to be a manager, an employee or an agent of PROTEE;
- forward, request to forward, or fulfill a request to forward chain mail, or send to others or enable others to receive a harmful computer program such as a virus, ‘spam’ or annoying e-mail messages;
- violate any law in association with using the Game;
- any other conduct determined by PROTEE, in its sole discretion, to be inappropriate or harmful.
- Mobile Applications. If PROTEE offers products and services including the Game through applications available on your wireless or other mobile device (the ‘Mobile Application Services’), these Mobile Application Services will be governed by additional terms outlining the applicable Mobile Application Service. PROTEE does not charge for these Mobile Application Services unless otherwise provided in the applicable additional terms. However, the Player’s wireless carrier’s standard messaging rates and other messaging, data and other rates and charges will apply to certain Mobile Application Services. The Player is responsible for checking with Player’s carrier to determine the amount of such rates and charges. In addition, the Player is responsible for determining whether the Mobile Application Services are available for Player’s wireless device, and what restrictions, if any, may be applicable to Player’s use of such Mobile Application Services. Under no circumstances will PROTEE be responsible for any wireless email, text messaging or other communications charges incurred by a Player (or any person that has access to a Player’s wireless device, telephone number, or email address) using any Mobile Application Services or any other communications services.
- Password and Access to the Game. PROTEE and its distributors may require each Player to have a unique user name and password combination in order to access and use certain features or functions of the Game and may also, from time to time, provide Players with additional codes or passwords necessary to access and use certain features or functions of the Game. As part of the registration process for the Game, you may choose a user name and password (or we may assign an initial password which we will give you the option to change). You must provide truthful and accurate information, and update such information to keep it true, accurate, current and complete. You may not select the name of another person, any third party’s trademark, copyright or other intellectual property infringement, any name that could mislead others to believe you to be an employee or agent of PROTEE, or any name that PROTEE deems in it is sole discretion to be vulgar, offensive, or otherwise violates this Agreement. Your user name and password are personal to you and you may not allow any others to use your user name or password under any circumstances. We are not liable for any harm caused or related to the theft or misappropriation of your user name or password, disclosure of your user name or password, your authorization of anyone else to use your user name or password, or any other activities conducted under your user name or password. You agree to immediately notify us if you become aware of or believe there is or may have been any unauthorized use of (or activity using) your user name or password or any other need to deactivate your user name or password due to security concerns. You agree that you do not own any account you create for the Game, any user names created on the account, or any content or data stored or associated with an account. You may also be required to register an account with the digital distribution platform or social networking service through which you seek to connect to or access the Game.
- Promotions and in Game Advertising. From time to time, PROTEE may conduct promotions on or through the Game including competitions, contests and sweepstakes (each a ‘Promotion’). Each Promotion may have additional terms and/or rules which will be posted or otherwise made available to the Player and, for purposes of each Promotion, will be deemed incorporated into and form a part of this Agreement.
- Hyperlinks to Third Party Services. The appearance, availability, or use of advertising, URLs or hyperlinks referenced or included anywhere on the Game or any other form of link or re-direction of the Player’s connection to, with or through the Game, to websites or other content that are not affiliated with PROTEE or the Game is not an endorsement by, nor does it incur any obligation, responsibility or liability on the part of PROTEE. The Player’s access of such unaffiliated content is at Player’s own risk, and PROTEE does not verify, endorse or have any responsibility for the content of any such third parties or any goods or services associated with or obtained in connection with any such third parties, whether the Game’s or PROTEE’s logo or sponsorship identification is on the third party services/goods as part of a co-branding or promotional arrangement, or for any loss or damage incurred in connection with the Player’s use of such services/goods. If any third party services obtain or collect personal information from the Player, in no event shall PROTEE assume or have any responsibility or liability.
- NO WARRANTIES. THE GAME, AND ALL ASSOCIATED MATERIALS, PRODUCTS AND POSTINGS ARE MADE AVAILABLE ON AN ‘AS IS’ AND ‘AS AVAILABLE’ BASIS, WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR ANY GUARANTEE OR ASSURANCE THE GAME WILL BE AVAILABLE FOR USE, ACCURATE UNINTERRUPTED, FREE OF VIRUSES OR THAT ALL PRODUCTS, FEATURES, FUNCTIONS OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED.
- GAME CHANGES, WAIVER AND RELEASE.
- The Player’s use of the Game is at the Player’s own risk. The Game may have bugs and other problems that make it unplayable, and that could potentially cause damage to the Player’s computer and game equipment. PROTEE may alter, suspend, or discontinue the Game in whole or in part, at any time and for any reason, without notice. PROTEE may modify the Game software, forums, and related content and services automatically and without notice, and the Player acknowledges and agrees that such modifications may cause a loss of data or content or loss of function or utility. The Player waives protections afforded by the relevant legislation or law and agrees that PROTEE is not liable for nor had control over the Player’s actions, any loss of data, content, function or utility or any behavior of other Players using the Game.
- PROTEE reserves the right, at any time and from time to time, for any reason in our sole discretion, to change the terms of this Agreement. We will post or display notices such changes; and the form and manner of such notice is at our discretion. If you use the Game after posting it will signify your agreement to be bound by the changes. You should check back frequently and review the terms and conditions of this Agreement.
- THE PLAYER HEREBY RELEASES, DISCHARGES AND HOLDS HARMLESS PROTEE, ITS AFFILIATES, AND EACH OF ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS AND AGENTS FROM ANY AND ALL CLAIMS, LOSSES, CAUSES OF ACTION AND LIABILITIES OF ANY KIND ARISING OUT OF OR RELATING IN ANY WAY TO USE OF THE GAME.
- THE PLAYER FURTHER RELEASES PROTEE FROM ANY AND ALL CLAIMS OF ANY RIGHTS, ENCUMBRANCES, LIENS, CLAIMS, DEMANDS, ACTIONS OR SUITS WHICH THE PLAYER MAY OR CAN HAVE IN CONNECTION WITH THE PLAYER’S USER CONTENT, INCLUDING, WITHOUT LIMITATION, ANY AND ALL LIABILITY FOR ANY USE OR NON-USE OF THE PLAYER’S USER CONTENT, CLAIMS FOR DEFAMATION, EMOTIONAL DISTRESS OR ECONOMIC LOSS.
- LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROTEE SHALL NOT BE LIABLE TO THE PLAYER OR ANY OTHER PERSON FOR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES FROM ANY CAUSE OF ACTION ARISING WITH RESPECT TO THIS AGREEMENT OR THE GAME, USER CONTENT, OR OTHER GOODS OR SERVICES PROVIDED HEREUNDER, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT THE PLAYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND IN NO EVENT SHALL PROTEE’S AGGREGATE LIABILITY TO THE PLAYER UNDER THIS AGREEMENT EXCEED FIFTY UNITED STATES DOLLARS (USD$50).
- Indemnification. The Player will indemnify and hold PROTEE harmless from and against all claims, losses, liabilities, damages, expenses, and costs (including reasonable fees for attorneys and expert witnesses) which result from any breach or alleged breach of any of Player’s covenants, representatives, warranties or obligations herein, provided, however, that this indemnification obligation shall not be conditioned on any demonstration of the truth of the facts or circumstances alleged by any third party. For greater certainty, the Player’s indemnification obligations under this Agreement include any third party claims arising from, related to or caused by the Player’s User Content and/or the submission of User Content.
- Remedies. The Player acknowledges and agrees that the Game and all parts thereof constitute valuable intellectual property of PROTEE, and that any unauthorized reproduction, use, and/or disclosure of such materials by Player shall cause PROTEE irreparable harm for which its remedies at law would be inadequate. The Player agrees that PROTEE shall be entitled in addition to any other remedies available to it at law or in equity, to seek injunctive relief to prevent the breach or threatened breach of any of the Player’s obligations hereunder.
- Term and Termination. The Player acknowledges that any Game furnished by PROTEE under this Agreement is being offered by PROTEE to the Player for a limited period of time commencing on the Effective Date of this Agreement continuing in full force and effect until a date to be designated by PROTEE (the ‘Term’). PROTEE may discontinue supporting or updating the Game at any time for any reason.
- Continuing Effect. The parties’ obligations, which by their nature would continue beyond the termination or expiry of this Agreement, including but not limited to, obligations regarding intellectual property, User Content, disclaimers of liability, and limitations of liability, will survive such termination or expiry.
- Entire Agreement, No Waiver, Assignment and Miscellaneous. This Agreement constitutes the entire understanding between the parties relating to the subject matter hereof. This Agreement shall bind and be to the benefit of PROTEE and its successors and assigns. This Agreement is personal to the Player and the Player shall not sublicense, subcontract, assign, transfer, or convey Player’s rights hereunder.
- Notices. Any notice or other writing required or permitted to be given under this Agreement or for the purposes of this Agreement (referred to in this Paragraph as a “notice”) to any party shall be sufficiently given if delivered personally, or if sent by prepaid registered mail:
- in the case of a notice to PROTEE at:
- in the case of a notice to the Player at the address provided by the Player to PROTEE or PROTEE’s distributor, or at such other address as the party to whom such writing is to be given shall have last notified to the party giving the same in the manner provided in this Paragraph. Any notice personally delivered to the party to whom it is addressed as provided in this Paragraph shall be deemed to have been given on the day it is so delivered at such address, provided that if such day is not a Business Day then the notice shall be deemed to have been given and received on the next Business Day.
- Number and Gender. Words importing the singular number only shall include the plural and vice versa, and words importing the use of any gender shall include both genders.
- Headings.The paragraph headings in this Agreement are included for convenience of reference only, and shall not constitute a part of this Agreement for any other purpose.
- Severability. If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part of such provision and the remaining part of such provision and all other provisions of this Agreement shall continue in full force and effect.
- GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, OBLIGATIONS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE GOVERNED IN ALL RESPECTS AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE NETHERLANDS, AND EACH PARTY IRREVOCABLY AGREES THAT ANY DISPUTES UNDER THIS AGREEMENT ARE SUBJECT SOLELY TO ARBITRATION IN THE NETHERLANDS UNDER THE COMMERCIAL ARBITRATION ACT (THE NETHERLANDS).
PROTEE will not be responsible or liable in any way for any damages or costs that arise, directly or indirect, from the deletion, alteration or relocation of the User Content.
ProTee United BV
1014 BM AMSTERDAM
Attention: Legal Department
- ‘Business Day’ means a day, other than a Saturday or Sunday, on which the principal commercial banks located in The Netherlands are open for business during normal banking hours;
- “includes” or “including” means includes or including without limitation.