Terms of Use

By accessing or using any applications powered by Swing by Swing Golf, Inc.. (“Swing by Swing”), including any applications (each, an “App”) or services  provided by Swing by Swing or any related websites, including www.swingbyswing.com, www.swingbyswinggolf.com, www.golf.swingbyswing.com, www.marketing.swingbyswing.com, api.swingbyswing.com, www.swing-u.com, www.gottagolf.com, www.the19thhole.co, www.golfpulpmedia.com, www.golfgrade.com, www.bunkerbuys.com, www.clubbygolf.com, www.gsagency.co (the “Sites”) websites and the Swing by Swing Golf GPS and Scorecard Application, the SwingU Application, the gottaGolf Application, the Golf Tracer Application and the Clubby Golf Application (Apps, services, and Sites collectively referred to as “Services”), you agree to be bound by these Terms of Service (“Terms”) and our Privacy Policy, available here, incorporated herein by reference. Swing by Swing shall collectively be referred to herein as “we” and/or “us.” If you are accessing and using the Services on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity. These Terms affect your legal rights and obligations. If you do not agree to be bound by all of these Terms, you may not access or use the Services.

ARBITRATION NOTICE: EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU, ON THE ONE HAND, AND SWING BY SWING, ON THE OTHER HAND, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

Basic Terms

  • You must be at least 18 years old and not barred from using the Services under applicable law. If you are under 18 years of age, you are not permitted to access the Services for any reason.
  • If you want to use certain features of the Service you’ll have to create a user account (“App Account”). You can do this providing access credentials either in the form of an email address and password or by authentication using your account with certain third-party social networking services such as Facebook (an “SNS Account”). If you choose the SNS Account option we’ll create your App Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access.  It is a condition of your use of the Services that all information you provide is correct, current, and complete.  You agree and understand that all information you provide to register with the Sites is governed by the Swing by Swing Privacy Policy.
  • For purposes of these Terms: (i) “Content” means text, graphics, images, photographs, GIF’s, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that App Account holders (including you) provide to be made available through the Services, including, without limitation, profile, username, comments and posts. Content includes, without limitation, User Content.
  • You agree not to post upload, publish, submit or transmit any User Content that (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; (vii) promotes illegal or harmful activities or substances; or (viii) is sexually explicit or sexually suggestive.
  • You are responsible for any activity that occurs through your App Account and you agree you will not sell, transfer, license or assign your App Account, followers, username, or any App Account rights. With the exception of people or businesses that are expressly authorized to create Accounts on behalf of their employers or clients, Swing by Swing prohibits the creation of and you agree that you will not create an App Account for anyone other than yourself. You also represent that all information you provide or provided to Swing by Swing upon registration and at all other times will be true, accurate, current and complete and you agree to update your information as necessary to maintain its truth and accuracy.
  • You agree that you will not solicit, collect or use the login credentials of other users on the App.
  • You are responsible for keeping your password secret and secure, and you’ll notify us immediately of any unauthorized use of your App Account.
  • You must not defame, stalk, bully, abuse, harass, threaten, impersonate or intimidate people or entities and you must not post private or confidential information via the Service, including, without limitation, your or any other person’s credit card information, social security or alternate national identity numbers, non-public phone numbers or non-public email addresses.
  • You may not use the Services for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your use of the Services and your User Content, including but not limited to, copyright laws.
  • You are solely responsible for your conduct and any User Content that you submit, post or display on or via the Services.
  • You must not change, modify, adapt or alter the Services.
  • You must not access Swing by Swing’s private API by means other than those permitted by Swing by Swing.
  • You must not attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content. 
  • You must not use, display, mirror or frame the Services or any individual element within the Service, Swing by SwingSwing by Swing’s (or any of its affiliated brands) trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Swing by Swing’s express written consent.
  • You must not access, tamper with, or use non-public areas of the Services, Swing by Swing’s computer systems, or the technical delivery systems of Swing by Swing’s providers.
  • You must not attempt to probe, scan or test the vulnerability of any Swing by Swing system or network or breach any security or authentication measures.
  • You must not avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Swing by Swing or any of Swing by Swing’s providers or any other third party (including another user) to protect the Services or Content.
  • You must not create or submit unwanted email, comments, likes or other forms of commercial or harassing communications (aka “spam”) to any App users.
  • You must not use domain names or web URLs in your username.
  • You must not interfere or disrupt the Services or servers or networks connected to the Services, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. You may not inject content or code or otherwise alter or interfere with the way any App page is rendered or displayed in a user’s browser or device.
  • You must not create accounts with the Services through unauthorized means, including but not limited to, by using an automated device, script, bot, spider, crawler or scraper.
  • You must not attempt to restrict another user from using or enjoying the Services and you must not encourage or facilitate violations of these Terms.
  • Violation of these Terms may, in Swing by Swing’s sole discretion, result in termination of your App Account. You understand and agree that Swing by Swing cannot and will not be responsible for the User Content posted on the Services and you use the Services at your own risk. If you violate the letter or spirit of these Terms, or otherwise create risk or possible legal exposure for Swing by Swing, we can stop providing all or part of the Services to you.

General Conditions

  • We reserve the right to modify, discontinue, or terminate the Services or your access to the Services for any reason, without notice, at any time, and without any liability or obligation to you.
  • By registering for the SwingU app, you agree to be subscribed to transactional emails related to your account, our daily golf newsletter, and dedicated emails containing promotions and deals from our partners. You can unsubscribe anytime, for any reason.
  • You can deactivate your App Account by contacting us at support@swingbyswing.com. If we terminate your access to the Services or you contact us to deactivate your account, your User Content will no longer be accessible through your App Account, and your Content will no longer persist and appear within the Services.
  • We reserve the right, in our sole discretion, to change these Terms from time to time. All changes are effective immediately after we post them on the Services, and your use of the Service after the effective date of the changes constitutes your agreement to the revised Terms. If you don’t agree to be bound by these Terms, then you may not use the Services anymore. Notwithstanding the foregoing, any changes to the dispute resolution provisions will not apply to any dispute for which the parties have actual notice before the date the change is posted on the Services.
  • We reserve the right to force forfeiture of any username for any reason.
  • We may, but have no obligation to, remove, edit, block, and/or monitor Content or Accounts containing Content that we determine in our sole discretion violates these Terms or applicable law or other legal requirements, without any prior notice to you. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law. Content removed from the App may continue to be stored by us, including, without limitation, in order to comply with certain legal obligations, but may not be retrievable without a valid court order. Consequently, we encourage you to maintain your own backup of your User Content. In other words, we are not a backup service and you agree that you will not rely on the Services for the purposes of User Content backup or storage.
  • Although it is our intention for the Services to be available as much as possible, there will be occasions when the Services may be interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment. You hereby assume all such risks by using the Services.
  • You agree that we are not responsible for, and do not endorse, User Content posted within the Services. We do not have any obligation to prescreen, monitor, edit, or remove any Content. If your User Content violates these Terms, you may bear legal responsibility for that User Content.
  • Except as otherwise described in our Privacy Policy, as between you and us, any User Content will be non-confidential and non-proprietary and we will not be liable for any use or disclosure of User Content. You acknowledge and agree that your relationship with us is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any User Content does not place us in a position that is any different from the position held by members of the general public, including with regard to your User Content. None of your User Content will be subject to any obligation of confidence on our part, and we will not be liable for any use or disclosure of any User Content you provide.
  • You are solely responsible for your interaction with other users of the Services, whether online or offline. You agree that Swing by Swing is not responsible or liable for the conduct of any user. Swing by Swing reserves the right, but has no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment when interacting with others, including when you submit or post User Content or any personal or other information.
  • There may be links from the App, or from communications you receive from the Services, to third-party web and/or mobile apps. There may also be links to third-party web and/or mobile sites within the App. The Services also includes third-party content that we do not control, maintain or endorse. Functionality on the Services may also permit interactions between the Services and a third-party web and/or mobile app, including applications that connect the Services or your profile on the Services with a third-party web and/or mobile app. For example, the Services may include a feature that enables you to share User Content from the App with a third party, which may be publicly posted on that third party’s service or application. Using this functionality typically requires you to login to your account on the third-party service and you do so at your own risk. Swing by Swing does not control any of these third-party web services or any of their content. You expressly acknowledge and agree that Swing by Swing is in no way responsible or liable for any such third-party services or features, content, products or services. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH THIRD PARTIES FOUND THROUGH THE SERVICE ARE SOLELY BETWEEN YOU AND THE THIRD PARTY. You may choose, at your sole and absolute discretion and risk, to use applications that connect the Services or your profile on the Services with a third-party service (each, a “Third Party Application”) and such Third Party Application may interact with, connect to or gather and/or pull information from and to your Services profile. By using such Third Party Application, you acknowledge and agree to the following: (i) if you use a Third Party Application to share information, you are consenting to information about your profile on the Services being shared; (ii) your use of a Third Party Application may cause personally identifying information to be publicly disclosed and/or associated with you, even if Swing by Swing has not itself provided such information; and (iii) your use of a Third Party Application is at your own option and risk, and you will hold the Indemnified Parties (defined below) harmless for activity related to the Third Party Application.
  • You agree that you are responsible for all data charges you incur through use of the Services.
  • You are prohibited from crawling, scraping, caching or otherwise accessing any Content on the Services via automated means, including but not limited to, user profiles and photos.
  • Although it is our intention for the Services to be available as much as possible, there will be occasions when the Services may be interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment. We will not be liable to you for any modification, suspension, or discontinuation of the App and/or the Services, or the loss of any Content.
  • You acknowledge that Swing by Swing powers other apps that you may download (each, a “Swing by Swing App”). In the event you download another Swing by Swing App, you acknowledge that Swing by Swing may identify you as a pre-existing user of a Swing by Swing App and offer you a universal log-in that allows you to sign-in to multiple Swing by Swing Apps with the same user credentials.

Feedback

We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at support@SwingbySwing.com.. If you choose to send us content, information, ideas, suggestions, or other materials, you agree that we are free to use any such content, information, ideas, suggestions or other materials, for any purposes whatsoever, including, without limitation, developing and marketing products and services, without any liability or payment of any kind to you and you agree to grant to us any and all intellectual property rights that you own or control to use, copy, modify, create derivative works of, or otherwise exploit the Feedback for any purpose.

Rights Granted in the App

Subject to your compliance with these Terms, Swing by Swing grants you a limited, personal, worldwide, royalty-free, non-assignable, non-transferable, non-sublicensable and non-exclusive license to download and install a copy of the App on a mobile device, computer, smart television or other device that you own or control and to run such copy of the App solely in connection with the Services in compliance with these Terms and in the manner permitted by the Services and solely for your own personal non-commercial purposes.

Content Ownership, Responsibility and Rights Granted in Content

  • Swing by Swing does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. You retain your rights to any User Content you submit, post or display on or through the Service. Subject to the foregoing, Swing by Swing and its licensors exclusively own all right, title and interest in and to the Services and Content (other than User Content), including all associated intellectual property rights. You acknowledge that the Service and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
  • By submitting, posting or displaying any User Content on or through the Services, you grant Swing by Swing a worldwide, non-exclusive, perpetual, irrevocable, royalty-free and fully paid up license, with the right to sublicense through multiple tiers, including App Account holders and users, to use, reproduce, adapt, modify, create derivative works based upon, publish, transmit, public display, publicly perform, exhibit, broadcast, syndicate, distribute, market, promote, and otherwise exploit such User Content in any and all media or distribution methods (now known or later developed), including, without limitation, on television, as well as web, mobile, tablet, and connected television applications controlled, administered, powered, licensed and/or owned by Swing by Swing and/or their licensees and assignees. You acknowledge that certain features of the App enable users to create derivative works of your User Content including, but not limited to, through remixing and repurposing your User Content to, for example, create memes, mashups, stitched content and GIFs.
  • You agree that this license includes the right to make User Content submitted to or through the Services available, consistent with our Privacy Policy, to other companies, organizations or individuals who partner with Swing by Swing for the syndication, broadcast, distribution or publication of such User Content on other media and services. Such additional uses by Swing by Swing, or other companies, organizations or individuals who partner with Swing by Swing, may be made with no compensation paid to you with respect to the User Content that you submit, post, transmit or otherwise make available through the Services.
  • We may modify or adapt your User Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your User Content as are necessary to conform and adapt that User Content to any requirements or limitations of any networks, devices, services or media.
  • You represent and warrant that: (i) you own the User Content posted by you on or through the Services or otherwise have all the rights to grant the rights and licenses in your User Content set forth in these Terms ; (ii) neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Swing by Swing, or through the Services, will violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by us by reason of User Content you post on or through the Services (including, without limitation, any public performance or synchronization royalties);  (iv) you have the legal right and capacity to enter into these Terms in your jurisdiction; (v) your User Content complies with these Terms; and (vi) your User Content complies with all applicable federal, state, local, and international laws and regulations. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
  • Subject to your compliance with these Terms, Swing by Swing grants you a limited, non-exclusive, non-transferable, non-sublicensable license to do the following solely in connection with the Services in compliance with these Terms and in the manner permitted by the Services (including any restrictions therein) and solely for your own personal non-commercial purposes: (i) to view and display the Content; (ii) to create specific types of derivative works based upon User Content uploaded by other App Account holders (“Remixable User Content”); and (iii) to create specific types of derivative works based upon specific Content designated by Swing by Swing as remixable content through the Services (“Remixable Swing by Swing Content”). Remixable User Content and Remixable Swing by Swing Content shall collectively be referred to herein as Remixable Content. You acknowledge that you may create derivative works of Remixable Content only in specific types of formats (e.g., memes, GIFs), and with respect to Remixable Swing by Swing Content as explicitly authorized by Swing by Swing and offered through the Services. You agree that all derivative works created by you from any such Remixable Swing by Swing Content (“Swing by Swing Derivatives”) will be the sole and exclusive property of Swing by Swing. You agree to and do hereby irrevocably transfer and assign to Swing by Swing and agree to irrevocably transfer and assign to Swing by Swing all of your right, title, and interest in and to all Swing by Swing Derivatives, including all intellectual property rights therein. At Swing by Swing’s request and expense, you will execute documents and take such further acts as Swing by Swing may reasonably request to assist Swing by Swing to acquire, perfect and maintain Swing by Swing’s intellectual property rights and other legal protections for the Swing by Swing Derivatives.
  • The App contains content owned or licensed by Swing by Swing (“Swing by Swing Content”). Swing by Swing Content is protected by copyright, trademark, patent, trade secret and other laws, and, as between you and Swing by Swing, Swing by Swing owns and retains all rights in the Swing by Swing Content. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
  • The Swing by Swing name and logo are trademarks of Swing by Swing, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Swing by Swing. In addition, all Swing by Swing’s website design and content are owned or licensed by Swing by Swing, and may not be copied, imitated or used, in whole or in part, without prior written permission from Swing by Swing.
  • Swing by Swing has the right to:
    • Remove or refuse to post any User Content for any reason in our sole discretion.
    • Take any action we deem appropriate or necessary with respect to User Content, including if we believe that such User Content violates these Terms, infringes on any intellectual property or any other rights of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for the Swing by Swing.
    • Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
    • Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.
    • Terminate or suspend your access to all or part of the Services for any or no reason, including violating these Terms.

Without limiting the foregoing rights of Swing by Swing, we have the right to cooperate with any law enforcement authorities or court order requesting or directing to disclose the identity or other information of anyone posting any materials on or through the Services. You waive and hold harmless Swing by Swing and its affiliates from any claims resulting from any action taken by Swing by Swing or its affiliates during, or taken as a consequence of, investigations by either Swing by Swing or its affiliates, or law enforcement. We assume no liability for any action or inaction regarding transmission, communication, or content provided by any user or third party. We have no liability or responsibility to anyone for the performance or nonperformance of the activities described in this section.

Privacy Policy

Please refer to our Privacy Policy for information on how we collect, use and disclose information from our users.

DMCA/Copyright Policy

We respect copyright law and expect our users to do the same. It is our policy to terminate in appropriate circumstances App Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see the Swing by Swing Copyright Policy below for further information.

Disclaimer of Warranties

THE SERVICES, INCLUDING, WITHOUT LIMITATION, CONTENT, IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER SWING BY SWING NOR ANY OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS OR AGENTS (COLLECTIVELY, THE  “INDEMNIFIED PARTIES”) MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SERVICES; (B) THE CONTENT; OR (C) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO OR VIA THE SERVICES. IN ADDITION, THE INDEMNIFIED PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUSES. INDEMNIFIED PARTIES MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, SECURITY, AVAILABILITY, OR RELIABILITY OF ANY CONTENT.

THE INDEMNIFIED PARTIES DO NOT REPRESENT OR WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICES OR THE SERVER THAT MAKES THE SERVICES AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICES AND CONTENT IS AT YOUR SOLE RISK. THE INDEMNIFIED PARTIES DO NOT WARRANT THAT YOUR USE OF THE SERVICES OR CONTENT IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE INDEMNIFIED PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO YOU AND THESE TERMS.

BY ACCESSING OR USING THE SERVICES YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICES.

THE INDEMNIFIED PARTIES DO NOT ENDORSE CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Limitation of Liability; Waiver

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL SWING BY SWING, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF SWING BY SWING AND ITS SUBSIDIARIES AND AFFILIATES, AND THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID TO THE COMPANY FOR THE SERVICES IN THE LAST 12 MONTHS OUT OF WHICH LIABILITY AROSE, WHICHEVER IS GREATER.

THE LIMITATION OF LIABILITY SET OUT ABOVE DOES NOT APPLY TO LIABILITY RESULTING FROM OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

 THE INDEMNIFIED PARTIES ARE NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE THE INDEMNIFIED PARTIES FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.

THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SWING BY SWING AND YOU.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Indemnification

You will defend (at our request), indemnify and hold the Indemnified Parties harmless from and against any claims, disputes, demands, liabilities, damages, costs, fees, awards, losses, and expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the Services or those conducted on your behalf): (i) your User Content or your access to or use of the Services; (ii) your breach or alleged breach of these Terms; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You will cooperate as fully required by us in the defense of any claim. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Swing by Swing.

Arbitration

Except if you opt-out or for disputes relating to your or our intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights and patents) (“Excluded Disputes”), you agree that all disputes between you and Swing by Swing (whether or not such dispute involves a third party) with regard to your relationship with us, including, without limitation, disputes related to these Terms of Service, your use of the Services and/or the App, and/or rights of privacy and/or publicity, will be resolved by binding, individual arbitration under the American Arbitration Association’s rules for arbitration of consumer-related disputes and you and Swing by Swing hereby expressly waive trial by jury. As an alternative, you may bring your claim in your local “small claims” court, if permitted by that small claims court’s rules. You may bring claims only on your own behalf. Neither you nor Swing by Swing will participate in a class action or class-wide arbitration for any claims covered by these Terms of Service. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Swing by Swing is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then Swing by Swing, or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms of Service.

You may opt out of this agreement to arbitrate. If you do so, neither you nor Swing by Swing can require the other to participate in an arbitration proceeding. To opt out, you must notify Swing by Swing in writing within 30 days of the date that you first became subject to this arbitration provision. You must use this address to opt out:

Swing by Swing Golf, Inc. ATTN: Arbitration 80 Statehouse Square #158 Hartford, CT 06123

You must include your name and residence address, the email address you use for your App account, and a clear statement that you want to opt out of this arbitration agreement.

If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your account.

Time Limitation on Claims

You agree that any claim you may have arising out of or related to the Services or Content must be filed within one year after such claim arose; otherwise, your claim is permanently barred.

Governing Law

These Terms are governed by and construed in accordance with the laws of the State of Connecticut, without giving effect to any principles of conflicts of law AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. For any action at law or in equity relating to the arbitration provision of these Terms of Service, the Excluded Disputes or if you opt out of the agreement to arbitrate, you agree to resolve any dispute you have with Swing by Swing exclusively in a state or federal court located in Hartford County, Connecticut, and to submit to the personal jurisdiction of the courts located in Hartford County for the purpose of litigating all such disputes.

If any provision of these Terms is held to be unlawful, void, or for any reason unenforceable during arbitration or by a court of competent jurisdiction, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. Our failure to insist upon or enforce strict performance of any provision of these Terms will not be construed as a waiver of any provision or right. No waiver of any of these Terms will be deemed a further or continuing waiver of such term or condition or any other term or condition. 

Miscellaneous

These Terms constitute the entire agreement between you and us regarding the Services and Content, superseding any prior agreements between you and us regarding the Services and Content. You will not assign the Terms or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Swing by Swing. Any purported assignment or delegation by you without the appropriate prior written consent of Swing by Swing will be null and void. Swing by Swing may assign these Terms or any rights hereunder without your consent. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns. If any provision of these Terms is found by a court of competent jurisdiction to be invalid or otherwise unenforceable, the parties nevertheless agree that such portion will be deemed severable from these Terms and will not affect the validity and enforceability of the remaining provisions, and the remaining provisions of the Terms remain in full force and effect. Neither the course of conduct between the parties nor trade practice will act to modify the Terms. The failure of Swing by Swing to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. Any notices or other communications provided by us under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Service. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

Territorial Restrictions

The information provided within the Services is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. We reserve the right to limit the availability of the Services or any portion of the Services, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that we provide.

Software related to or made available by the Services may be subject to United States export controls. Thus, no software from the Services may be downloaded, exported or re-exported: (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading any software related to the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.

 

Swing by Swing Copyright Policy

Notification of Copyright Infringement

Swing by Swing Golf, Inc. (“Swing by Swing”) respects the intellectual property rights of others and expects its users to do the same.

It is Swing by Swing’s policy, in appropriate circumstances and at its discretion, to disable and/or terminate the accounts of users who repeatedly infringe the copyrights of others.

In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, Swing by Swing will respond expeditiously to claims of copyright infringement committed using the Swing by Swing website or apps powered by Swing by Swing (the “Apps”) that are reported to Swing by Swing’s Designated Copyright Agent, identified in the sample notice below.

If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Apps by completing the following DMCA Notice of Alleged Infringement and delivering it to Swing by Swing’s Designated Copyright Agent. Upon receipt of the Notice as described below, Swing by Swing will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Apps.

DMCA Notice of Alleged Infringement (“Notice”)

  1. Identify the copyrighted work that you claim has been infringed, or – if multiple copyrighted works are covered by this Notice – you may provide a representative list of the copyrighted works that you claim have been infringed.
  2. Identify the material that you claim is 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 us to locate the material, including at a minimum, if applicable, the URL of the link shown on the App(s) where such material may be found.
  3. Provide your mailing address, telephone number, and, if available, email address.
  4. Include both of the following statements in the body of the Notice: “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).” “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
  5. Provide your full legal name and your electronic or physical signature.

Deliver this Notice, with all items completed, to Swing by Swing’s Designated Copyright Agent: Copyright Agentsupport@swingbyswing.com

If you have any questions about these Terms, please contact us at support@swingbyswing.com.

Updated: May 13, 2018