THIS IS AN IMPORTANT AGREEMENT THAT APPLIES TO YOUR USE OF THE FORESIGHT GC2 SYSTEM, HMT HEAD MEASUREMENT TECHNOLOGY, FSX SOFTWARE AND RELATED PRODUCTS! PLEASE SCROLL DOWN!
If you are under the age of 18, STOP! You must get your parent or legal guardian to read and accept this agreement.
END USER LICENSE AGREEMENT
This is an agreement between you and Foresight Sports (together with its affiliates “Foresight” or “we” or “our”) and provides important information about your golf ball launch monitor. Please read this agreement carefully before using your “GC2”, “HMT” or other golf ball launch monitor camera system and related software from Foresight Sports (hereinafter “System”). You are agreeing to be bound by the terms of this agreement. If you do not agree to the terms of this agreement, you may return the System for a refund in accordance with the applicable return policy. Use of the System without acceptance of this agreement is strictly prohibited.
1. Software License.
You may only use the software, content, and data that came with your System or that is compatible with and authorized for use on your System, including any updates or replacement to that software, content, or data that we or our authorized providers make available to you (collectively, the “Software”) subject to the terms of this Section. The Software is licensed, not sold, to you solely for either (a) your personal, noncommercial use on your System, or (b) commercial use on your System as authorized by Foresight. You may not publish, copy, modify, reverse engineer, lease, rent, decompile, or disassemble any portion of the Software, or bypass, modify, defeat, tamper with, or circumvent any of the functions or protections of your System, unless otherwise permitted by law. The System and accessories, the Software, and any services available using the System are constantly evolving, and we may update or change your System, in whole or in part, without notice to you. Such updates or changes may be required for you to play new System games, enjoy new features, or continue to access System services. After your System is updated or changed, any existing or future unauthorized modification of the hardware or software of your System, or the use of an unauthorized device in connection with your System, will render the system permanently unusable. Content obtained through the unauthorized modification of the hardware or software of your System will be removed. You agree not to use your System in an unlawful manner or to access the systems, devices, accounts, or data of others (including Foresight Sports) without their (or our) consent.
2. Use of Information.
3. Reservation of Rights.
Neither the sale, transfer, license, nor the use of your System transfers any title or ownership of any of our intellectual property rights. We reserve all rights that we have not expressly granted in this agreement.
Your rights under this agreement will immediately terminate if you do not comply with any term of this agreement. At the time of any termination of this agreement, you will immediately cease all use of the Software. Our failure to insist upon or enforce your strict compliance with this agreement will not constitute a waiver of any of our rights.
5. Disclaimer of Warranties and Limitation of Liability.
USE OF YOUR SYSTEM IS AT YOUR SOLE RISK. FORESIGHT IS NOT RESPONSIBLE FOR ANY NON-FORESIGHT SITES, SERVICES, APPLICATIONS, CONTENT, DATA, MESSAGES, OR OTHER ITEMS THAT YOU ACCESS, USE, OR SHARE VIA YOUR SYSTEM. EXCEPT FOR ANY LIMITED WARRANTY THAT APPLIES TO YOUR SYSTEM. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FORESIGHT OR ITS REPRESENTATIVES CREATES A WARRANTY. THE SYSTEM IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND FORESIGHT DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SYSTEM, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FORESIGHT WILL NOT BE LIABLE TO YOU FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO YOUR ACCESS, USE, MISUSE, OR INABILITY TO USE THE SYSTEM, EVEN IF FORESIGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, FORESIGHT’S AGGREGATE LIABILITY TO YOU IN CONNECTION WITH ANY CLAIMS ARISING OUT OF OR RELATING TO THE SYSTEM IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID FOR YOUR SYSTEM. IF A LAW RESTRICTS OUR ABILITY TO LIMIT LIABILITY OR DISCLAIM WARRANTIES, THE LIMITATIONS LISTED ABOVE MAY NOT APPLY TO YOU. IN THAT CASE, WE LIMIT OUR LIABILITY AND DISCLAIM WARRANTIES TO THE GREATEST EXTENT PERMITTED BY LAW.
6. Dispute Resolution; Binding Individual Arbitration; Class Action Waiver.
A. Our consumer services department is available to address any concerns you may have regarding your System. You may contact us at http://www.foresightsports.com/contact-support. Most matters are quickly resolved in this manner to our customer’s satisfaction. Any matter we are unable to resolve and all disputes or claims arising out of or relating to this Agreement, including its formation, enforceability, performance, or breach (each, a “Claim”), with the exception of the matters described in section 6(c) below, shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer-related disputes of the American Arbitration Association (the “AAA”), excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all Claims. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. Any such arbitration shall be conducted by the parties in their individual capacities only and not as a class action or other representative action, and the parties waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class-action waiver set forth in the preceding sentence is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth in this Section 6 shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate.
B. You and Foresight Sports agree to the exclusive jurisdiction of the state and federal courts in San Diego County, California to resolve any dispute, claim or controversy that arises in connection with our products or any of our agreements.
C. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Foresight Sports are each waiving the right to a trial by jury and the right to participate in a class or multi-party action. This arbitration provision shall survive termination of these Agreements and the termination of your Foresight Sports account. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (the “AAA Rules”), as modified by these Agreements, and as administered by the AAA. You and Foresight Sports agree that these Agreements involve interstate commerce and are subject to the Federal Arbitration Act.
D. YOU AND FORESIGHT SPORTS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A CLASS MEMBER OR IN ANY REPRESENTATIVE CAPACITY OR PROCEEDING. Further, no arbitrator shall consolidate any other person’s claims with your claims, and may not otherwise preside over any form of a multi-party or class proceeding. If this specific provision is found to be unenforceable in any way, then the entirety of this arbitration section shall be null and void. The arbitrator may not award declaratory or injunctive relief.
E. Any arbitration must be commenced by filing a demand for arbitration with the AAA within ONE (1) YEAR after the date the party asserting the claim first knows or reasonably should know of the act, omission or default giving rise to the claim; and there shall be no right to any remedy for any claim not asserted within that time period. If applicable law prohibits a one-year limitations period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law. Your arbitration fees and your share of arbitrator compensation will be limited to those fees set forth in the AAA's Consumer Rules with the remainder paid by Foresight Sports.
If any part of this agreement is held to be invalid or unenforceable, that part will no longer apply to the parties and will be replaced by an enforceable provision that most closely reflects the original intent of the parties. All other parts of the agreement will remain in effect unless otherwise provided in this agreement. If Section 6 is held to be invalid or unenforceable, then for any Claims the parties consent to the exclusive jurisdiction of the courts located in San Diego County, California, U.S.A.