Protected under one or more of the following U.S. Patents: 8,589,114; 8,831,905 and other U.S. patents pending.
This Website Terms and Conditions of Use Agreement (“Agreement”) is between NewSpin Golf, LLC., an Illinois limited liability company with offices located at, 108 S Wynstone Park Drive Suite 110 N. Barrington 60010 (“NewSpin,” “Us,” “Our” or “We”) and you (“User,” “You” or “Your”) and is a legal agreement between You and NewSpin. This Agreement is effective as of the date you access the NewSpin Website. This Agreement states the terms and conditions under which you may use the SwingSmart Website. Please read this Agreement carefully before accessing and using the SwingSmart Website. By using and accessing the SwingSmart Website, You indicate that You have read and understand this Agreement and agree to be bound by this Agreement. If You do not accept this Agreement, you may not access and use the SwingSmart Website. NewSpin may revise this Agreement at any time without notice by updating this Agreement. You should visit this web page periodically to review the Agreement.
- Unauthorized Use
A. You shall not copy or download the content including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (“Content”) or third party Content from the SwingSmart Website without the prior written consent of NewSpin. You shall not modify, reverse engineer, reproduce, display, publicly perform or distribute, including (without limitation) by framing or similar means, the SwingSmart Website, Content or third party Content or use the SwingSmart Website, Content or third party Content for public or commercial purposes. You shall not use the SwingSmart Website, Content or third party Content on any other website. Notwithstanding the foregoing,B. You may access Content or third party Content that constitute audiovisual work (“NewSpin Videos”) solely for:
• Your information and personal use
• Streaming (as defined in Section 7F below)You agree that any NewSpin Video that you are Streaming must be accompanied by the anchor text “NewSpin Golf” and that such anchor text must contain a link to NewSpin’s home page (http:www.newspingolf.com).You may display certain NewSpin images and text on your website or on third party websites provided such NewSpin images and text are designated for such use by NewSpin.You agree that any such NewSpin images and texts must be accompanied by the anchor text “NewSpin Golf” and that such anchor text must contain a link to NewSpin’s home page (http:www.newspingolf.com).You agree to not engage in the use, copying, or distribution of any of the Content or third party Content other than as expressly permitted herein, including any use, copying, or distribution of any of the Content or third party Content (as that term is defined in Section 7(a) below) obtained through the SwingSmart Website for any commercial purposes.B. You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the SwingSmart Website in a manner that sends bulk requests to the NewSpin servers. Notwithstanding the foregoing, NewSpin grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of creating publicly available searchable indices of the SwingSmart Website, but not caches or archives of the SwingSmart Website. NewSpin reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the SwingSmart Website, nor to use the communication systems provided by the SwingSmart Website for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the SwingSmart Website.
- Ownership & Title
Title to the SwingSmart Website and Content (excluding third party Content and User Submissions (as defined in Section 7 below)), including ownership rights to patents, copyrights, trademarks and trade secrets in connection with the SwingSmart Website shall be the exclusive property of NewSpin.
- Removal of Infringing Material/Copyright Agent
A. NewSpin does not permit infringement of intellectual property rights on the SwingSmart Website. NewSpin will remove all Content, third party Content and User Submissions if properly notified that such Content, third party Content or User Submission infringes on another’s intellectual property rights. NewSpin reserves the right to remove User Submissions without prior notice. NewSpin will also terminate a user’s access to the SwingSmart Website if such user has been notified of infringing activity more than twice and/or has had a User Submission removed from the SwingSmart Website more than twice. NewSpin also reserves the right to decide whether Content, third party Content or a User Submission is appropriate. NewSpin may remove inappropriate User Submissions and/or terminate a User’s access for uploading inappropriate User Submissions without prior notice and at its sole discretion.B. If You believe that any User Submission or other Content or third party Content infringes upon Your copyrights, You may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing:(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) Identification of the copyrighted work claimed to have been infringed, or a representative list of such works if more than one work is at issue; (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit NewSpin to locate the material; (iv) Information reasonably sufficient to permit NewSpin to contact You, such as an address, telephone number, and email address; (v) A statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.NewSpin’s designated Copyright Agent to receive notifications of claimed infringement is: Marcus Stephen Harris, 10 S. LaSalle Street, Suite 3500, Chicago, IL 60603 email: email@example.com, telephone: (312) 263-0570, fax: (312) 577-0928. You acknowledge and agree that if you fail to comply with all of the requirements of this Section 4(B), your DMCA notice may not be valid.
NewSpin shall retain all rights, title and ownership interests in the trademarks, trade names, service marks or trade dresses of NewSpin (the “NewSpin Marks”). Excepting the NewSpin Marks, all other product and company names mentioned on the SwingSmart Website may be the trademarks of their respective owners. These companies may or may not be affiliated with, connected to, or sponsored by NewSpin.
- No Contest
You acknowledge that the SwingSmart Website, Content and third party Content are protected under laws, including (without limitation) United States of America and international copyright laws and treaties. Except as otherwise provided for in this Agreement, you shall not contest or aid in contesting the ownership or validity of the copyrights, trademarks, service marks and trade secrets (as applicable) of NewSpin in connection with the SwingSmart Website and Content or third party Content
- User Submissions
A. The SwingSmart Website may now or in the future (at the sole discretion of NewSpin) permit the submission of product reviews, videos, photos, audio content, text or other communications submitted by You and other users (“User Submissions”) and the hosting, sharing, and/or publishing of such User Submissions. Any information posted or submitted by You on the SwingSmart Website shall be deemed non-confidential.B. You shall be solely responsible for Your own User Submissions and the consequences of posting or publishing them. You warrant and represent that: (i) You own or have the right, to use and authorize NewSpin to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the SwingSmart Website and this Agreement; and (ii) You have the written consent, release, and/or permission of each and every individual person in the User Submission to use the name or likeness of each and every such individual person to enable inclusion and use of the User Submissions in the manner contemplated by the SwingSmart Website and this Agreement.C. By submitting User Submissions to NewSpin, You grant to NewSpin, its affiliates and related entities and their successors and assigns a worldwide, royalty-free, perpetual, irrevocable, non-exclusive sub-licensable license to use, copy, reproduce, distribute, publish, publicly perform, publicly display, modify, adapt, translate, archive, store, and create derivative works of the User Submissions in connection with the SwingSmart Website and NewSpin’s business (and its successor’s business), including without limitation for promoting and redistributing part or all of the SwingSmart Website (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the SwingSmart Website a non-exclusive license to access Your User Submissions through the SwingSmart Website, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the SwingSmart Website and under this Agreement.D. In connection with User Submissions, You will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless You are the owner of such rights or have permission from their rightful owner to post the material and to grant NewSpin all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage NewSpin or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements or solicitations of business; or (v) impersonate another person.E. NewSpin is not responsible for the accuracy, usefulness, safety, or intellectual property rights of, or relating to, User Submissions.F. You may access User Submissions solely for:
• your information and personal use; and
“Streaming” means a contemporaneous digital transmission of an audiovisual work via the Internet from the SwingSmart Website to a user’s device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by the user. Accessing User Submission for any purpose or in any manner other than Streaming is expressly prohibited. User Submissions are made available “as is.” You agree that any User Submission that you are Streaming must be accompanied by the anchor text “NewSpin” and that such anchor text must contain a link to NewSpin’ home page. You agree to not engage in the use, copying, or distribution of any of the Content or third party Content other than as expressly permitted herein, including any use, copying, or distribution of User Submissions obtained through the SwingSmart Website for any commercial purposes. You agree not to circumvent, disable or otherwise interfere with security-related features of the SwingSmart Website or features that prevent or restrict use or copying of any Content or third party Content or enforce limitations on use of the SwingSmart Website or the Content or third party Content therein. You understand that when using the SwingSmart Website, you will be exposed to User Submissions from a variety of sources, and that NewSpin is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that You may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies You have or may have against NewSpin with respect thereto, and agree to indemnify and hold NewSpin, its suppliers, affiliates, subsidiaries, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the SwingSmart Website
- Express Warranties
You acknowledge and agree that NewSpin (including officers, employees, agents, directors and independent contractors of NewSpin) has not made or granted to You any express warranties concerning the SwingSmart Website or NewSpin products or services. Use and performance of NewSpin products and services referenced on the SwingSmart Website are subject to NewSpin’s terms and conditions concerning such products and services as made available by NewSpin. You acknowledge that the SwingSmart Website does not constitute a grant of an express warranty concerning NewSpin’s products and services and You waive any and all claims of warranty based on the SwingSmart Website.
- Warranty Limitation
The swingsmart website is provided “as is” without warranty of any kind. NewSpin, to the fullest extent permitted by law, disclaims and you waive all warranties, express or implied, including, but not limited to, all implied warranties of fitness for a particular purpose, all implied warranties of merchantability and warranty of non-infringement of third party rights. NewSpin does not warrant and you waive any warranty that use of or access to the swingsmart website by you will be uninterrupted or error free. NewSpin does not make any warranty and you waive any and all warranties as to the results obtained from use of the swingsmart website or as to the accuracy, completeness, timeliness or reliability of the swingsmart website. You acknowledge and agree that use of the internet and the swingsmart website shall be at your sole and exclusive risk and subject to the restrictions, terms and conditions, rules, regulations, policies and applicable laws governing the internet and the swing smart website.
You acknowledge that the SwingSmart Website may contain errors, inaccuracies and omissions and assume any and all risk of loss, harm or damage associated with access to and use of the SwingSmart Website.
- Limitation of Liability
Neither NewSpin, its affiliates, subsidiaries or suppliers shall be liable for any lost profits or consequential, exemplary, incidental or punitive damages hereunder (including, without limitation, in connection with (i) use, performance or operation of the swingsmart website; (ii) use, performance or operation of the internet or use of the internet by you; and (iii) loss of data), regardless of the form of action, whether in contract or in tort, including negligence, regardless of whether NewSpin has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable.
- Limitation of Damages
The liability of NewSpin, its affiliates, subsidiaries or suppliers for any reason and for any cause of action whatsoever in connection with this agreement and the swingsmart website, regardless of the form of action, whether in contract or in tort, including negligence, shall not exceed fifty U.S. Dollars ($50). You and NewSpin agree that any cause of action arising out of or related to the swingsmart website or this agreement must commence within one (1) year after the cause of action accrues or the cause of action is permanently barred.
You agree to release, defend, indemnify and hold harmless NewSpin (including its officers, directors, employees, affiliates, contractors and agents) against any expense, loss, cost or liability (including, without limitation, attorney fees) arising from any and all claims, demands, damages or actions resulting from or related to (i) use of the SwingSmart Website or the Internet by You (including, without limitation, any claims for breach of warranty, loss of data, libel, slander, invasion of privacy or false advertising); (ii) performance of the SwingSmart Website; (iii) User Submissions; (iv) Your negligence or acts (or any failure to act); or (v) any breach by You of Your obligations under this Agreement.
- Export Assurance
You agree not to perform any act in conflict with or in violation of the export laws and regulations of the United States of America.
You acknowledge that the Swingsmart Website contains links to third party websites which are provided solely as a convenience to You and do not constitute an endorsement by NewSpin of such websites and the third party content found there.
- Entire Agreement
- Amendments & Modifications
If a provision of this Agreement is rendered invalid, the remaining provisions shall remain in full force and effect.
- Governing Law
The SwingSmart Website is based in Chicago Illinois This Agreement is governed by the laws of the State of Illinois, without regard to any rules of conflict or choice of laws which require the application of laws of another jurisdiction, and venue shall be Chicago, IL. If any material on the SwingSmart Website, or Your use of the SwingSmart Website, is contrary to the laws of the place where You are when You access it, the SwingSmart Website is not intended for You, and You may not use the SwingSmart Website. You are responsible for informing yourself of the laws of your jurisdiction and complying with them.
- User Notice
All notices shall be in writing. Notices to You shall be deemed delivered when delivered to You electronically, by commercial overnight delivery service, by Certified or Registered Mail – Return Receipt Requested – or by hand. Notices to User shall be deemed given on the date notice is delivered electronically or by hand to User or on the date of receipt by User (as evidenced in the case of Certified or Registered Mail by Return Receipt), whichever occurs first. Notices delivered to User electronically (including, without limitation, electronic mail) shall be deemed written notices.
- NewSpin Notice
Notices to NewSpin (excepting notices sent pursuant to Section 4(B) above) shall be deemed delivered when delivered by commercial overnight delivery service, Certified or Registered Mail – Return Receipt Requested – or by hand to the address set forth in the first paragraph of this Agreement for NewSpin. Notices to NewSpin shall be deemed given on the date notice is received by NewSpin (as evidenced in the case of Certified or Registered Mail by Return Receipt).
- Equitable Remedies
You acknowledge and agree that damages at law will be an inadequate remedy to NewSpin. In addition to other rights which may be available, NewSpin shall have the right of specific performance, injunction or other equitable remedy in the event of a breach or threatened breach of this Agreement by You.
Waiver of a breach of this Agreement shall not constitute a waiver of any other breach. All remedies under this Agreement are in addition to equitable remedies and remedies provided by law and are cumulative. Failure to enforce any provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of this Agreement shall not be binding unless such waiver is in writing and signed by the waiving party.
- Public Announcements
All public announcements concerning the SwingSmart Website or the relationship of You and NewSpin shall be subject to the prior written approval of NewSpin.
- Litigation Expense
In the event of litigation or arbitration arising out of this Agreement, each party shall pay its own costs and expenses of litigation or arbitration.
This Agreement may be terminated by NewSpin at any time without notice or cause. Any and all restrictions imposed upon You with respect to the SwingSmart Website and the contents of the SwingSmart Website and any and all disclaimers and limitations of liabilities set forth in this Agreement shall survive such termination.