THESE TEEOFF by PGA TOUR DISTRIBUTION STANDARD TERMS AND CONDITIONS (the “TeeOff Distribution Standard Terms”) govern the Distribution Services purchased by your company (“Client”) from EZLinks Golf LLC (“EZLinks”) under that certain Tee Time Distribution Services Agreement between Client and EZLinks (the “Distribution Services Agreement”) which refers to and incorporates these TeeOff Distribution Standard Terms. In exchange for the consideration set forth in the Distribution Services Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged by both parties, Client and EZLinks agree as follows, intending to be legally bound:
1. The Distribution Agreement. EZLinks will provide to Client the Distribution Services as agreed in the Distribution Services Agreement, subject to Client’s payment of the consideration as set forth therein and all terms and conditions of the Distribution Services Agreement and these TeeOff Distribution Standard Terms. Together, the Distribution Services Agreement and these TeeOff Distribution Standard Terms constitute one binding agreement between the parties (the “Distribution Agreement”). The Distribution Agreement shall become legally binding on the parties on the date on which the Services Agreement is signed by EZLinks (the "Effective Date"). The information in the Distribution Services Agreement regarding the amount of consideration to be paid by Client for Distribution Services, the payment process, and the Term, supersede any directly conflicting terms in these TeeOff Distribution Standard Terms. For all other purposes, these TeeOff Distribution Standard Terms shall control.
2. General. All terms defined in the Distribution Services Agreement and capitalized herein shall have the meaning assigned to them in the Distribution Services Agreement. All other capitalized terms used herein shall have the meaning assigned to them below or elsewhere in the text of this Distribution Agreement:
a. “Client Materials” means the materials, trademarks, software code, designs, data, content, images and information provided by or on behalf of Client for promotional use by EZLinks as permitted hereunder, and includes Client’s and Courses’ names and logos. For clarity, the Client Materials include any of the foregoing even if they are not provided directly by Client to EZLinks but are otherwise approved by Client (e-mail will suffice) for use by EZLinks.
b. “Course(s)” means those participating golf clubs and/or individual courses that are owned, operated, and/or otherwise affiliated with Client, as listed in the Distribution Services Agreement, for which the Distribution Services will be used.
c. “Customer(s)” means actual and prospective golfers at the Course(s).
d. “Distribution Services” means the service by which EZLinks provides golf courses with a distribution channel to market and sell tee time reservations through the EZLinks Platform. Courses can opt-in to post tee times on the EZLinks Platforms by making tee times available for sale through the EZLinks Platforms via a direct integration to the Course tee sheet or through a distribution partner.
e. “EZLinks Materials” means the Work Product and any other materials, trademarks, software code, designs, data, content, images and information of EZLinks, and all modifications or derivatives thereof. For clarity, the EZLinks Materials do not include any trademarks or other Intellectual Property of the PGA TOUR or any third party.
f. “EZLinks Platforms” means EZLinks’ TeeOff by PGA TOUR website, the corresponding “TeeOff” app, and EZLinks’ various affiliated, contracted, or licensed marketing and sales channels.
g. “Intellectual Property” means all copyrights, patents, rights to inventions, trademarks, domain names, rights in trade dress, publicity rights, goodwill, rights in designs, database rights, rights to use and to protect the confidentiality of confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to obtain renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which exist now or in the future in any part of the world.
h. "Inventory Exchange" means Client may choose a payment option that includes providing golf tee times to EZLinks (“Inventory Exchange”) in lieu of or in conjunction with a cash payment. Inventory Exchange tee times shall each consist of one (1) 18-hole round of golf for up to four (4) golfers, including cart, with no additional charges required by the Course ("Inventory Exchange Rounds"). EZLinks may market and sell Inventory Exchange Rounds (as individual Rounds or in any configuration of groupings up to four (4) Rounds per Tee Time) through the Platform. EZLinks may determine the pricing of Inventory Exchange Rounds at its sole discretion and may select designated time ranges for the Inventory Exchange Tee Times or may select and block designated Inventory Exchange Tee Times on the EZLinks Tee Sheet (if applicable). EZLinks may post and book Inventory Exchange Rounds a minimum of 30 days in advance (with the ability to match any other third-party availability) and will only book up to the maximum number of Inventory Exchange Rounds allowed per this Agreement. If an Inventory Exchange Round is not available on a given day due to a scheduled outing, event, overseeding or other course maintenance, or any other reason, EZLinks shall be permitted to designate a replacement Inventory Exchange Round on an earlier or later date.
i. “Work Product” means the inventions and works of authorship, created, captured or developed in whole or in part by EZLinks while providing or preparing to provide the Distribution Services for Client. Work Product may include works of authorship created by EZLinks prior to the Effective Date.
3. Distribution Services. By participating in the Distribution Services, Client hereby permits EZLinks to interface directly into the Course tee sheet(s) in real time using designated APIs. Client will receive:
a. Marketing on the EZLinks Platforms for the purposes of booking tee times;
b. Ability to control and manage tee time pricing and allocation;
c. Customer data for tee times booked at the Course(s) via the EZLinks Platforms. EZLinks makes no representation that any Customer data is collected in a manner that secures consent for Client to use the information or data for any particular purpose; Client covenants and agrees that it will use all such data only in accordance with applicable laws and regulations; and
d. Access to telephone support line should a Course need help posting tee times.
4. Client’s Key Acknowledgements. By participating in the Distribution Services, Client acknowledges and agrees that:
a. EZLinks is not responsible for the acts or omissions of its third-party affiliates, including affiliates that display and sell Client tee times; and
b. EZLinks is not responsible for the accuracy, inaccuracy, or quality of information received via Course tee sheet(s).
5. Client’s Key Responsibilities. By participating in the Distribution Services, Client agrees to:
a. Make tee time inventory available on the EZLinks Platforms;
b. Honor the reservations booked on the EZLinks Platforms and provide Customers with the same rights as golfers that book at the Course;
c. Comply with and implement technical requirements to allow the EZLinks Platforms to access the Course tee time inventory, which may involve working directly with EZLinks or through a third-party;
d. Refrain from selling Customer data or using Customer data to market products or services of an EZLinks competitor; and
e. Provide EZLinks with up to date and accurate “No Show” and return policies, and apply such policies fairly to Customers.
6. Intellectual Property Ownership and Usage.
a. Client Owns Client Materials. As between Client and EZLinks, Client shall continue to own all Intellectual Property rights and all other rights associated with the Client Materials. For the duration of the Term, Client hereby provides a royalty free license to EZLinks to use and to reproduce, modify, distribute, display, and to make modifications to and derivative works of the Client Materials in the course of providing the Distribution Services to Client, to market and promote the Course(s) and EZLinks’ business, and to market, promote and sell Course rounds. The foregoing license applies to EZLinks’ use of Client Materials in all media and via EZLinks Platforms and/or its various affiliated, contracted, or licensed marketing and sales channels. Client represents and warrants that (A) it owns, or has the necessary permissions, to grant the license contained in this Section 6.a.; (B) the Client Materials do not violate any third-party Intellectual Property rights; and (C) the Client Materials contain no false or defamatory material or material that violates or advocates the violation of any law or regulation.
b. EZLinks Owns EZLinks Materials. As between Client and EZLinks, EZLinks shall continue to own all Intellectual Property rights and all other rights associated with the EZLinks Materials. EZLinks hereby provides a royalty free license to Client to use the software interface allowing tee sheet integration with EZLinks Platforms, for the duration of the Term. For clarity, Client is not authorized to use any other EZLinks Materials without the prior written permission of EZLinks, nor is Client authorized to use any Marks or other Intellectual Property of the PGA TOUR.
c. Customer Data. Customer data collected as a result of this integration will be the property of Client, EZLinks and any applicable Affiliates. It is the responsibility of the selling party to inform Customers of applicable data policies.
7. Consideration. Client agrees to pay to EZLinks the consideration for Distribution Services set forth in the Distribution Services Agreement. Client agrees, and EZLinks reserves the right, to charge Customers a booking fee in connection with all tee times. Booking fees will be retained by EZLinks.
8. Marketplace Pricing. EZLinks may employ tools to ensure price parity, including without limitation an automated price manager that will dynamically adjust pricing of Course tee times. Course tee time prices will reflect the lowest public third-party rate and will adjust up and down daily, or more frequently. A third party is defined as an entity that sells tee times to consumers. Client can override or opt out by calling EZLinks Support at any time. Changes will be processed in 72 hours. Client understands that EZLinks is not responsible for, nor can it control, tee time pricing posted on other third-party sites.
9. Authorization. By posting tee times on the EZLinks Platforms, the Client is opting-in to use EZLinks Platforms. Client hereby represents and warrants that the individual posting tee times on behalf of Client’s Course(s) or the individual that provided access to such inventories via a third party, is authorized to opt in to the Distribution Services on behalf of Client and the relevant Course(s).
11. Trademarks. Each of Client and EZLinks owns its own names and trademarks, and all goodwill associated therewith (the “Marks”), and will not use (or facilitate the use by others of) the names or trademarks of the other apart from the relevant licenses set forth in Section 6.a., without the prior written consent of the other party. Each party hereby acknowledges the other party’s right, title and interest in and to its Marks and such other party’s exclusive right to use, register and license the use of its Marks. Any and all goodwill arising from the use of a party’s Marks hereunder shall inure solely to the benefit of the owner, and neither during nor after the termination of this Distribution Agreement shall either party assert any claim to the other’s Mark(s). Neither party shall take any action that could be detrimental to the goodwill associated with the other’s Marks. Each party covenants and agrees that it will not, during or after the Term: (i) claim or assert title to any Mark of the other party, (ii) attempt to register any Mark of the other party anywhere in the world, (iii) claim any right to use any Mark of the other party, except to the extent expressly permitted by this Distribution Agreement, (iv) use any other trademark, brand name, trade name, symbol, design (including a translation) that the other party reasonably believes is confusingly similar to the Mark(s) of such other party, (v) contest or deny the validity or enforceability of the other party’s Mark(s) or of such other party’s interest therein, or (vi) oppose, object to, or seek to cancel any registration of the other party’s Mark(s), nor aid others in doing so.
13. Client’s Responsibility for Courses. The parties agree that Client shall be liable for any breach or default of this Distribution Agreement by the Course(s) or for any other actions or omissions of any Course with respect to this Distribution Agreement and/or the Distribution Services.
14. Indemnification. Client shall indemnify, defend and hold harmless EZLinks, EZLinks’ affiliates, and their respective members, managers, directors, officers, employees and agents (the “EZLinks Parties”) from and against any and all third party demands, claims, actions or proceedings seeking a remedy for personal injury (including death) to any person, damage to the property (real, personal or intellectual) of any person or entity, or any financial or commercial harm or loss, and all fines, judgments, settlements, penalties, liabilities, losses, costs and expenses (including reasonable attorneys’ fees and expenses) suffered by any EZLinks Party in direct connection therewith, to the extent caused by (A) Client’s breach of any covenant, representation, warranty, or other material term of this Distribution Agreement; (B) Client’s negligence or willful misconduct; (C) any actual or alleged harm to any person while on the premises of Client’s Course(s); (D) EZLinks’ use of Client data in accordance with this Agreement; or (E) the violation by Client of any applicable law or regulation in its use of the Distribution Services, including without limitation all laws and regulations governing marketing contests and sweepstakes. For purposes of (A) through (E) above, the term “Client” shall be deemed to mean Client, the Course(s), their affiliates, or any of their respective directors, officers, members, Customers, employees, agents, contractors, sub-contractors or permitted assignees.
15. Confidentiality. Neither party shall disclose any non-public information of the other (including but not limited to: technical documentation, Client data, source code, pricing models) for the duration of the Term plus two (2) years, unless such information constitutes a trade secret under applicable law, in which case neither party shall disclose such information for the maximum period allowable under applicable law. Each party agrees to protect the non-public information of the other with at least the same level of care with which it treats its own non-public information. The restrictions in this Section 15 shall not apply to information that was independently known to the parties prior to this Distribution Agreement, information that is in the public domain or information that is provided to either party by a third party who has violated no legal obligations in doing so. It is not a violation of this Section 15 for either party to disclose non-public information of any kind to a judicial or governmental authority compelling such disclosure, provided that the compelled party gives notice of such order to the other party as soon as reasonably possible.
16. Disclaimer of Warranties. THE DISTRIBUTION SERVICES ARE PROVIDED ON AND “AS IS” BASIS. EZLINKS MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE DISTRIBUTION SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY, (B) WARRANTY OF NON-INFRINGMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, OR (C) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. EZLINKS DOES NOT WARRANT AGAINST INTERFERENCE WITH CLIENT’S ENJOYMENT OF THE DISTRIBUTION SERVICES OR THAT THE DISTRIBUTION SERVICES WILL MEET CLIENT’S REQUIREMENTS, THAT THE OPERATION OF THE HARDWARE OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE DISTRIBUTION SERVICES WILL CONTINUE TO BE MADE AVAILABLE FOR PURCHASE BEYOND THE TERM, THAT DEFECTS IN THE DISTRIBUTION SERVICES WILL BE CORRECTED, OR THAT THE DISTRIBUTION SERVICES WILL BE COMPATIBLE OR WILL WORK WITH ANY THIRD-PARTY HARDWARE, SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. INSTALLATION OF THE DISTRIBUTION SERVICES MAY AFFECT THE USABILITY OF THIRD PARTY HARDWARE, SOFTWARE, APPLICATIONS OR THIRD-PARTY SERVICES.
17. Limitations on Types of Damages. THE DISTRIBUTION SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. EZLINKS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS. IN NO EVENT SHALL EZLINKS OR ANY OF ITS AFFILIATES, MEMBERS, OR REPRESENTATIVES BE LIABLE UNDER THIS DISTRIBUTION AGREEMENT TO CLIENT OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS DISTRIBUTION AGREEMENT, CORRUPTION OR LOSS OF DATA, SECURITY BREACH, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION, OR CLIENT’S INABILITY TO USE THE DISTRIBUTION SERVICES, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT CLIENT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
18. Maximum Liability. EXCEPT FOR INSTANCES IN WHICH APPLICABLE LAW DOES NOT ALLOW SUCH LIMITATIONS, IN NO EVENT SHALL EZLINKS’ OR ANY OF ITS AFFILIATES’, MEMBERS’, OR REPRESENTATIVES’ AGGREGATE LIABLITY ARISING OUT OF OR RELATED TO THIS DISTRIBUTION AGREEMENT, WHETHER FROM BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE LESSER OF (A) THE RETAIL VALUE OF CONSIDERATION ROUNDS PROVIDED BY CLIENT AND RECEIVED BY EZLINKS DURING THE PAST SIX (6) MONTHS, (B) THE AMOUNT OF CASH CONSIDERATION PAID BY CLIENT AND RECEIVED BY EZLINKS IN THE PAST ONE (1) MONTH, OR (C) $1,000.
19. If Remedy Fails of Essential Purpose. THE LIMITATIONS OF LIABILITY PROVISIONS SET FORTH IN SECTIONS 17 AND 18 SHALL APPLY EVEN IF CLIENT’S REMEDIES UNDER THIS DISTRIBUTION AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. Client acknowledges and agrees that the parties entered into this Distribution Agreement in reliance upon the limitations of liability set forth in Sections 17 and 18, that those limitations reflect an allocation of risk between the parties, and that the same form an essential basis of the bargain between the parties.
20. Insurance. During the Term, Client will maintain insurance with limits reasonably sufficient to cover Client’s obligations of indemnification hereunder. Client will furnish to EZLinks upon request, original Certificates of Insurance evidencing the required coverage to be in force during the Term.
21. Reservation of Rights. All of Client’s and EZLinks’ rights and interests not expressly granted to the other herein are reserved to them, respectively.
22. Remedies. Except as expressly stated herein, all rights and remedies provided in this Distribution Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise.
23. Miscellaneous. This Distribution Agreement (A) is governed by and shall be construed in accordance with the laws of the State of Illinois, and the parties hereby submit to the exclusive jurisdiction and venue of the State Courts of Illinois located in Cook County for all disputes arising under this Distribution Agreement; (B) contains the entire understanding and agreement of the parties with respect to the Distribution Services; (C) supersedes all prior and contemporaneous oral or written statements, proposals, quotes, representations or warranties by either party regarding this Distribution Agreement or the Distribution Services; (D) cannot be altered or amended except in a writing signed by the parties; (E) shall not be construed as establishing any type of partnership, joint venture, express or implied agency, employer-employee or special fiduciary relationship between the parties; (F) may not be transferred or assigned by Client in whole or in part without the prior written permission of EZLinks, any transfers or assignments inconsistent with this sub-paragraph (F) being null and void; (G) may be transferred or assigned by EZLinks in whole or in part, without the consent of Client, including to an affiliate or to an entity that acquires all or substantially all of the business or assets of EZLinks to which this Distribution Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise; (H) is binding upon the parties, their lawful successors and permitted assigns, and (I) may be executed in counterparts which, taken together, shall constitute one binding agreement. In any action or proceeding to enforce this Distribution Agreement, the prevailing party will be entitled to recover its costs and attorney’s fees. All waivers must be in a writing signed by the waiving party, and no such waiver may be construed as an ongoing or continuing waiver of the same or any future matter. Sections 2, 4, 6, 7, and 11-23, and all provisions of the Distribution Services Agreement pertaining to the payment of consideration shall survive the termination (for any reason) or expiration of this Distribution Agreement. No person who is not a party to this Distribution Agreement will have any equitable or other rights by virtue of this Distribution Agreement, except as expressly stated in Section 23.a. below. Each provision of this Distribution Agreement is severable and the invalidity of any part or paragraph shall not affect the enforceability of the remainder. Notices shall be sent to the respective signatories at the physical or e-mail addresses listed on the Distribution Services Agreement. Signatures on the Distribution Services Agreement provided by electronic means shall be binding as if originals.
24. The Deliverables Agreement (if applicable). If the Client is receiving other EZLinks products or services other than the Distribution Services, then such other products and services will be indicated either in a separate services agreement specific to those other products and services or, in rare instances, in the same “Services Agreement” referenced at the beginning of these TeeOff Distribution Standard Terms. In either case, such other products and services shall not be governed by these TeeOff Distribution Standard Terms, but by the separate EZLinks Standard Terms and Conditions (the “EZLinks Standard Terms”); and together, the relevant services agreement and those EZLinks Standard Terms constitute a separate, binding agreement between the parties (the “Deliverables Agreement”). For clarity, the Distribution Agreement and the Deliverables Agreement (if any) are two separate agreements, with separate and independent consideration, and may be terminated separately and independently from one another in accordance with their respective terms, regardless of whether they are both referenced in the Distribution Services Agreement or in separate services agreements.