THESE TERMS AND CONDITIONS ARE A LEGAL CONTRACT BETWEEN YOU AND the Company.  THE TERMS EXPLAIN HOW YOU ARE PERMITTED TO USE THE WEBSITE LOCATED AT THE URL: WWW.GOLFMDS.COM AS WELL AS ALL ASSOCIATED SITES LINKED TO WWW.GOLFMDS.COM BY the Company, ITS SUBSIDIARIES AND AFFILIATED COMPANIES (COLLECTIVELY, THE "SITE").  UNLESS OTHERWISE SPECIFICED, ALL REFERENCES TO “SITE” INCLUDE THE SERVICES AVAILABLE THROUGH THIS SITE (THE "SERVICES") AND ANY SOFTWARE THAT the Company PROVIDES TO YOU THAT ALLOWS YOU TO ACCESS THE SITE FROM A MOBILE DEVICE (A "MOBILE APPLICATION").  BY USING THIS SITE, YOU ARE AGREEING TO ALL THE TERMS; IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THIS SITE, ANY SERVICES AVAILABLE THROUGH THIS SITE OR ANY INFORMATION CONTAINED ON THIS SITE.

NOTE:  THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH the Company.  YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.


Changes.

the Company may make changes to the content and Services offered on this site at any time. the Company can change, update, or add or remove provisions of these term, at any time by posting the updated terms on this site and, by using this Site after the Company has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the Site.


General Use.

the Company provides content and Services through this Site that is copyrighted and/or trademarked work of the Company or the Company’s third-party licensors and suppliers or other users of the Site (collectively, the “Materials”).  Materials may include logos, graphics, video, images, software and other content.


the Company hereby grants you a limited, personal, non-exclusive and non-transferable license to use and to display the Materials and to use this Site solely for your personal use.  Except for the foregoing license, you have no other rights in the Site or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Site or Materials in any manner.


If you breach any of these Terms, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials.


Mobile Applications.

the Company makes available Mobile Applications to access the Site via a mobile device.  To use the Mobile Application you must have a mobile device that is compatible with the mobile service.  the Company does not warrant that the Mobile Application will be compatible with your mobile device.  the Company hereby grants to you a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for one registered account on one mobile device owned or leased solely by you, for your personal use.  You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third party or use the Mobile Application to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application.  You acknowledge that the Company may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that you are using on your mobile device.  You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms will apply to all such upgrades.  The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and the Company and its third party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application).  Standard carrier data charges may apply to your use of the Mobile Application.


The following additional terms and conditions apply with respect to any Mobile Application that the Company provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):



The following additional terms and conditions apply with respect to any Mobile Application that the Company provides to you designed for use on an Android-powered mobile device (an “Android App”):



Geo-Location Terms.


The Services include and make use of certain functionality and services provided by third parties that allow the Company to include maps, geocoding, places and other Content from Google, Inc. (“Google”) as part of the Services (the “Geo-Location Services”).  Your use of the Geo-Location Services is subject to  Google’s then current Terms of Use for Google Maps/Google Earth (http://www.google.com/intl/en_us/help/terms_maps.html) and by using the Geo-Location Services, you are agreeing to be bound by Google’s Terms of Use.


Using the Site and the Services on the Site.


You can simply view the Site and not use any Services on the Site.  You need not register with the Company to simply visit and view the Site.

However, in order to access certain password-restricted areas of the Site (such as to book a lesson, create a profile or view multiple videos) and to use certain Services and Materials offered on and through the Site, you must register with the Company for an account and receive a password.


Password Restricted Areas of this Site.

If you desire to register for an account with the Company, you must submit the following information through the account registration page on the Site:  your e-mail address, zipcode and birthday. You will also have the ability to provide additional optional information, such as golf instruction survey questions location, home course, etc..., which is not required to register for an account but may be helpful to the Company in providing you with more a more customized experience when using the Site or its Services.  Once you have you have submitted your account registration information, the Company administrator shall have the right to approve or reject the requested registration, in the Company administrator’s sole discretion.  If your account is approved by the Company administrator, you will be sent an e-mail that contains a password that will allow you to log-on to the Site using that password (the “Company Password”) for the first time you log into your account on the Site to complete the account registration process.

Currently, the Company also provides you with the ability to register for an account on the Site using your existing account and log-in credentials through the following Third Party Web Sites (as defined below), which may change from time to time:  Facebook Linkedin (each, a “Third Party Site Password”).

You are responsible for maintaining the confidentiality of your the Company Password and any Third Party Site Password (collectively, "Passwords), and you are responsible for all activities that occur using your Passwords. You agree not to share your Passwords, let others access or use your Passwords or do anything else that might jeopardize the security of your Passwords.  You agree to notify the Company if any of your Passwords on this Site is lost, stolen, if you are aware of any unauthorized use of your Passwords on this Site or if you know of any other breach of security in relation to this Site.

All the information that you provide when registering for an account and otherwise through the Site must be accurate, complete and up to date.  You may change, correct or remove any information from your account by either logging into your account directly and making the desired changes or contacting the Company using the contact information at the end of these Terms requesting that we make the change.

If you register for a “beta account” or other pre-release version of the Site and/or the Services and Materials on the Site (“Beta Release”), you acknowledge and agree that the Beta Release may contain, in the Company’ sole discretion, more or fewer features or different licensing terms than a subsequent commercial release version of the Site and/or Services that may be offered through the Site.  You acknowledge and agree that any “beta account” will automatically convert to a commercial release version account upon the launch date of the Site and its Services to the public (“Public Launch Date”).   If you do not desire to continue using the Site or its Services after the Public Launch Date, you may contact the Company to delete your account in accordance with the terms and conditions governing deletion of personal information set forth in the Company’s Privacy Policy. [NOTE: Make the term “Privacy Policy” a hypertext link to the Privacy Policy.]   While the Company generally intends to distribute commercial release versions of the Site and the Services and Materials on the Site, the Company reserves the right not to release later commercial release versions of any Beta Release.  Without limiting any disclaimer of warranty or other limitation stated herein, you agree that any Beta Release is not considered by the Company to be suitable for commercial use, and that it may contain errors affecting its proper operation.  BY ACCEPTING THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT USE OF A BETA RELEASE MAY EXHIBIT SPORADIC DISRUPTIONS THAT HAVE THE POTENTIAL TO DISRUPT YOUR USE OF THE SITE IN GENERAL AND ANY SERVICES THAT MAY BE OFFERED THROUGH THE SITE.  the Company SPECIFICALLY DISCLAIMS ALL DAMAGES RESULTING FROM YOUR USE OF ANY BETA RELEASE.


Purchases.

If applicable, you agree to pay all fees or charges to your account based on the Company’s fees, charges, and billing terms in effect as shown on the checkout page.  If you do not pay on time or if the Company cannot charge your credit card, PayPal or other payment method for any reason, the Company reserves the right to either suspend or terminate your access to the Site and account and terminate these Terms.  You are expressly agreeing that the Company is permitted to bill you for the applicable fees, any applicable tax and any other charges you may incur in connection with your use of this Site and the fees will be billed to your credit card, PayPal or other payment method designated on your initial registration with this Site, and thereafter at regular intervals for the remainder of the term of these Terms.  If you cancel your account at any time, you will not receive any refund.  If you have a balance due on any account, you agree that the Company may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.


Electronic Communications.

By using the Site and/or the Services provided on or through the Site, you consent to receiving electronic communications from the Company.  These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site and/or Services provided on or through the Site.  These electronic communications are part of your relationship with the Company.  You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.


Links to Third Party Sites.

This Site may be linked to other web sites that are not the Company sites, including, without limitation, social networking, blogging and similar websites through which you are able to log into this Site using your existing account and log-in credentials for such third party websites, including, without limitation, Facebook Linkedin (any and all of which of the foregoing listed websites may change from time to time) and websites that provide question-and-answer forum functionality (collectively, “Third Party Sites”).  Certain areas of the Site may allow you to interact and/or conduct transactions with such Third Party Sites, and, if applicable, allow you to configure your privacy settings in your Third Party Site account to permit your activities on this Site to be shared with your contacts in your Third Party Site account and, in certain situations, you may be transferred to a Third Party Site through a link but it may appear that you are still on this Site.  In any case, you acknowledge and agree that the Third Party Sites may have different privacy policies and terms and conditions and/or user guides and business practices than the Company, and you further acknowledge and agree that your use of such Third Party Sites is governed by the respective Third Party Web Site privacy policy and terms and conditions and/or user guides.  You hereby agree to comply with any and all terms and conditions, users guides and privacy policies of any of Third Party Sites.  the Company is providing links to the Third Party Sites to you as a convenience, and the Company does not verify, make any representations or take responsibility for such Third Party Sites, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third Party Sites. YOU AGREE THAT the Company WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD PARTY WEB SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD PARTY.  Any reference on the Site to any product, service, publication, institution, organization of any third party entity or individual does not constitute or imply the Company's endorsement or recommendation.


Submissions.

You are responsible for the information, opinions, messages, comments, photos, videos, graphics, sounds and other content or material that you submit, upload, post or otherwise make available on or through the Site (each a “Submission”) and through the Services available in connection with this Site.  You may not upload, post or otherwise make available on this Site any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third party, and the burden of determining whether any material is protected by any such right is on you.  You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, violation of contract, privacy or publicity rights or any other harm resulting from any Submission that you make.  You have full responsibility for each Submission you make, including its legality, reliability and approriateness.

Unless otherwise explicitly stated herein or in the Company Privacy Policy, you agree that any Submission provided by you in connection with this Site is provided on a non-proprietary and non-confidential basis.  You hereby grant to the Company a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers) to use, reproduce, process, adapt, publicly perform, publicly display, modify, prepare derivative works, publish, transmit and distribute each of your Submissions, or any portion thereof, in any form, medium or distribution method now known or hereafter existing, known or developed, and authorize others to use the Submissions.  We may modify or adapt your Submissions in order to transmit, display or distribute them over computer networks and in various media and/or make changes to the Submissions as necessary to conform and adapt them to any requirements or limitations of any networks, devices, services or media.  the Company agrees to use any personally identifiable information contained in any of your Submissions in accordance with the Company’s Privacy Policy.

You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any Submissions posted by you to or through this Site.

When you provide Submissions you agree that those Submissions shall not be in violation of the “Unauthorized Activities” paragraph below.  Those prohibitions do not require the Company to monitor, police or remove any Submissions or other information submitted by you or any other user.


Unauthorized Activities.

When using this Site and/or the services, you agree not to:



This list of prohibitions provides examples and is not complete or exclusive.  the Company reserves the right to (a) terminate access to your account, your ability to post to this Site (or use the Services) and (b) refuse, delete or remove any Submissions; with or without cause and with or without notice, for any reason or no reason, or for any action that the Company determines is inappropriate or disruptive to this Site or to any other user of this Site and/or Services.  The Company may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct.  When legally required or at the Company’s discretion, the Company will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or on the Internet.


Unauthorized use of any Materials or Third Party Content contained on this Site may violate certain laws and regulations.

You agree to indemnify and hold the Company and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) the Company or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third party that your use of this Site or the use of this Site by any person using your user name and/or password (including without limitation, your participation in the posting areas or, your Submissions) violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third party.


Proprietary Rights.


The Company is a trademark of the Company in the United States.  Other trademarks, names and logos on this Site are the property of their respective owners.

Unless otherwise specified in these Terms, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of the Company, Copyright © [dates of creation] the Company.  All rights not expressly granted herein are reserved.  Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.

The Mobile Application software that is provided to you through the Site and Services and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, if You are a government entity, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.  Unpublished-rights reserved under the copyright laws of the United States.

                 
Intellectual Property Infringement.

the Company respects the intellectual property rights of others, and we ask you to do the same.  the Company may, in appropriate circumstances and at our discretion, terminate service and/or access to this Site for users who infringe the intellectual property rights of others.  If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Site, please provide the Company’s designated agent the following information:

• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

• Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.

• 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 at the Site, and information reasonably sufficient to permit the Company to locate the material.

• Information reasonably sufficient to permit the Company to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.

• 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 and/or trademark owner, its agent, or the law.

• 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.

the Company’s agent for notice of claims of copyright or trademark infringement on this Site can be reached as follows:


Robert Lewis
rob@golfmds.com

Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.


Submitting a DMCA Counter-Notification

We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to the Company designated agent that includes all of the following information:



Termination of Repeat Infringers

the Company reserves the right, in its sole discretion, to terminate the account or access of any user of our web site and/or service who is the subject or repeated DMCA or other infringement notifications.  


Disclaimer of Warranties.

Your use of this Site and/or the Services is at your own risk.  The Materials have not been verified or authenticated in whole or in part by the Company, and they may include inaccuracies or typographical or other errors.  the Company does not warrant the accuracy of timeliness of the Materials contained on this Site.  the Company has no liability for any errors or omissions in the Materials, whether provided by the Company, our licensors or suppliers or other users.

THE COMPANY, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS SITE, THE SERVICES, OR ANY MATERIALS RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE, INCLUDING WITHOUT LIMITATION THE MATERIALS.  UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE, THE SERVICES, AND MATERIALS AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.  THE COMPANY DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.


Limitation of Liability.

THE COMPANY SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THIS SITE.  IN NO EVENT SHALL THE COMPANY BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF THE COMPANY KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.

Local Laws; Export Control.

The Company controls and operates this Site from its headquarters in the United States of America and the Materials may not be appropriate or available for use in other locations.  If you use this Site outside the United States of America, you are responsible for following applicable local laws.


Feedback.

If you send or transmit any communications, comments, questions, suggestions, or related materials to the Company, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Site, any Services offered through the Site or Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary.  You hereby assign all right, title, and interest in, and the Company is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback.  You understand and agree that the Company is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.


Dispute Resolution and Arbitration; Class Action Waiver.

Please read this carefully.  It affects your rights.

Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at [email address].  This provision facilitates the prompt and efficient resolution of any disputes that may arise between you and the Company.  Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision.  You have the right to opt-out of this provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.

Please read this provision carefully.  It provides that all Disputes (defined below) between you and the Company shall be resolved by binding arbitration.  Arbitration replaces the right to go to court.  In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions).  Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury.  There is no judge or jury in arbitration, and court review of an arbitration award is limited.  The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees).

For the purpose of this provision, “the Company” means the Company and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents.  The term “Dispute” means any dispute, claim, or controversy between you and the Company regarding any aspect of your relationship with the Company, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this provision (with the exception of the enforceability of the Class Action Waiver clause below).  “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as the Company’s licensors, suppliers, dealers or third party vendors) whenever you also assert claims against us in the same proceeding.

WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.


Pre-Arbitration Claim Resolution

For all Disputes, whether pursued in court or arbitration, you must first give the Company an opportunity to resolve the Dispute.  You must commence this process by mailing written notification to the Company, Company phone:  408-800-7503 Company email:   support@golfmds.com.  That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek.  If the Company does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration.  You may pursue your Dispute in a court only under the circumstances described below.

Exclusions from Arbitration/Right to Opt Out

Notwithstanding the above, you or the Company may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”).  You may opt out of this provision by mailing written notification to the Company, Company phone:  408-800-7503 Company email:   support@golfmds.com.  Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with the Company through arbitration.  Your decision to opt-out of this Arbitration provision will have no adverse effect on your relationship with the Company.  Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.


Arbitration Procedures

If this provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or the Company may initiate arbitration proceedings.  The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator.  The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration.  All issues shall be for the arbitrator to decide, including the scope of this provision.

For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply.  In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply.  The AAA rules are available at www.adr.org or by calling 1-800-778-7879.  For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply.  The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267.  This provision governs in the event it conflicts with the applicable arbitration rules.  Under no circumstances will class action procedures or rules apply to the arbitration.

Because the Site and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes.  However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.

Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding.  The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party.  Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

Location of Arbitration – You or the Company may initiate arbitration in either San Jose, California or the federal judicial district that includes your billing address.  In the event that you select the federal judicial district that includes your billing address, the Company may transfer the arbitration to the Northern District of California in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.

Payment of Arbitration Fees and Costs – the Company will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration.  You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses.  Fees and costs may be awarded as provided pursuant to applicable law.  In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with the Company as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.

Class Action Waiver

Except as otherwise provided in this provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and the Company specifically agree to do so following initiation of the arbitration.  If you choose to pursue your Dispute in court by opting out of the Arbitration provision, as specified above, this Class Action Waiver will not apply to you.  Neither you, nor any other user of the Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.

Severability

If any clause within this provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this provision, and the remainder of this provision will be given full force and effect.  If the Class Action Waiver clause is found to be illegal or unenforceable, this entire provision will be unenforceable and the Dispute will be decided by a court.

Continuation

This provision shall survive the termination of your service with the Company or its affiliates.  Notwithstanding any provision in this Agreement to the contrary, we agree that if the Company makes any change to this provision (other than a change to the Notice Address), you may reject any such change and require the Company to adhere to the language in this provision if a dispute between us arises.

General.

The Company may advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action.  However, certain violations of these Terms, as determined by the Company, may result in immediate termination of your access to this Site without prior notice to you.  The Federal Arbitration Act, California state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms.  Foreign laws do not apply.  The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement.  Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or this Site will be heard in the courts located in Santa Clara County in the State of California.  If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified.  the Company’s failure to enforce any of these Terms is not a waiver of such term.  These Terms are the entire agreement between you and the Company and supersede all prior or contemporaneous negotiations, discussions or agreements between you and the Company about this Site.  The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.


Contact Us.

If you have any questions about these Terms or otherwise need to contact the Company for any reason, you can reach us at Company phone:  408-800-7503 Company email:   support@golfmds.com.