1.- PURPOSE AND DURATION OF THE AGREEMENT
1.1. Purpose of the Agreement.
These terms and conditions constitute a contract (hereinafter referred to as the “Agreement”) for the provision of services by GOLFMANAGER UK LIMITED, (hereinafter referred to as “Golfmanager” or the “Service Provider”) to the Client. These services (hereinafter referred to as the “Service” or “Services”) encompass access to and usage of an online software program named ‘Golfmanager.’ (hereinafter referred to as the “Platform”). This software facilitates the management of sports centers and the reservation of services via the Internet.
GOLFMANAGER UK LIMITED is a company registered in England and Wales (registered number 16963882) whose registered office is at 1a The Moorings, Dane Road Industrial Estate, Sale, Cheshire, United Kingdom, M33 7BH, and shall be deemed the sole contracting entity under this Agreement.
1.2. Duration of the Agreement.
The term of this Agreement shall be twelve (12) months from the date of acceptance of the financial proposal or quotation, as detailed in Annex II of this Agreement. This Agreement shall automatically renew for successive periods of one (1) year each, unless either party provides written notice to the other of its intention not to renew this Agreement. Such notice must be given at least one hundred and twenty (120) calendar days prior to the expiry date, whether it pertains to the initial 12-month term or any subsequent renewals.
2.- OBLIGATIONS
2.1. Golfmanager Obligations.
During the term of the Agreement, Golfmanager agrees to:
(i) provide Services to the Client, enabling the availability of Golfmanager Content (as defined below) and Client information for use by the Client on the Platform, in accordance with the terms outlined in this Agreemen;
(ii) provide technical support during office hours (Monday to Friday, from 9 am to 8 pm). This support will be accessible via Intercom chat, email, and video calls. However, it’s important to note that in the event of critical incidents or emergencies identified as ‘Outage’ or ‘Critical’ in the SLA, the Client will have access to 24/7 support;
(iii) provide written and graphic materials in digital format for the Client’s training in the use and operation of the Platform. In addition, Golfmanager will conduct initial training, referred to as ‘Onboarding,’ for the members of the Client’s personnel who will be using the Platform. All these provisions are detailed further in this Agreement;
(iv) ensure that Golfmanager Services are available twenty-four (24) hours a day, seven (7) days a week, as indicated in Golfmanager’s Service Level Agreement (SLA), accessible through the following link https://golfmanager.com/legal/service-level-agreement/, which is considered Annex I to this Agreement; and
(v) ensure that the Platform offers the functionalities indicated in Annex II to the Agreement.
2.2. Client Obligations.
During the term of the Agreement, the Client agrees to:
(i) disburse the fee accrued for the provision of the Services to Golfmanager in a timely manner, as specified in this Agreement; and
(ii) use the Platform in a proper and authorized manner, as outlined in this Agreement.
3.- USE OF THE PLATFORM, ACCOUNTS AND USERS
3.1. User Account. Access to and use of the Platform by the Client will require the creation of an account (hereinafter, the “Account”), from which the user thereof (hereinafter, the “User”) may access all the functionalities and features of the contracted Services.
3.2. Number of Users. In general, the payment of the Fee (as defined below) entitles the Client to create new users at its discretion within reason. Regardless of the number of Users with access to the Platform, the Client must expressly designate in writing one of them as the sole global interlocutor (hereinafter, the “Project Manager”). The Client should notify Golfmanager of the Project Manager’s identity and provide contact information. The Project Manager will serve as the exclusive point of contact with Golfmanager, responsible for addressing the team’s inquiries and facilitating communication with Golfmanager.
3.3. Subjection of the Users to the Agreement. In any case, Users shall be subject to the terms of this Agreement, with necessary adjustments made as appropriate (mutatis mutandis). The Client bears full responsibility for transferring its contents and for any actions or omissions resulting from the access and usage of the Platform by Users. Furthermore, it is explicitly understood that any User accessing the Platform does so with the Client’s express authorization. As a result, Golfmanager disclaims any responsibility in this regard.
3.4. Responsibility for the Account. The Client is responsible for securely storing and safeguarding the identification data required for Users to access the Account and must not disclose this information to third parties. Golfmanager bears no responsibility for any disclosure of this data to third parties, whether such disclosure is intentional or negligent, by the Client and/or Users.
3.5. Termination of Account. In the event of the termination of this Agreement for any reason as outlined below, the Provider shall automatically disable the Account and permanently delete it within six (6) months following the termination date, unless an official investigation or a similar proceeding is still in progress, or if a court order dictates otherwise.
3.6. Interoperability and Connection of the Platform with Third-Party Services. The interoperability and connection of the Platform with other computer programs or software owned by third parties shall be possible, provided that such third parties provide prior notice to Golfmanager and accept the linkage and conditions determined by Golfmanager. If these third parties do not accept the linkage and conditions, Golfmanager may not establish a connection with them. In any case, Golfmanager shall not be held responsible for any failures, errors, or circumstances arising from such connections that affect the Platform. These responsibilities shall rest solely with the Client and the third parties involved. Consequently, Golfmanager will not provide specialized technical support to ensure the proper functioning of such connections.
3.7. Onboarding. To facilitate the initial configuration of the Platform and provide guidance on its usage to the Client and/or Users, Golfmanager shall conduct training and supply the written and graphic materials as outlined in Annex II. Once the Training has been completed, Golfmanager shall refrain from altering the Platform’s configuration initially agreed upon with the Client, except with the explicit written authorization of the Project Manager. However, it’s important to note that Users other than the Project Manager may also grant authorization for the modification of the Platform’s configuration. In such cases, these Users will assume full and complete responsibility for any resulting liability towards the Client, with Golfmanager absolved of any responsibility for such modifications.
3.8. As is Service. The Client understands and agrees that access to and use of the Platform are provided by Golfmanager “as is,” as described in this Agreement, including all its attachments. Golfmanager does not commit to making any modifications, developments, or substantial alterations beyond the necessary logical maintenance updates required for the proper provision of the Service.
4.- FEES
4.1. Fees. In consideration of the Services, the Client shall remit to Golfmanager a financial fee (the “Fee” hereinafter). The applicable Fee shall be collected in advance, and payment may occur on a monthly, semi-annual, or annual basis, as indicated by the Parties in Annex II, unless specific alternative terms have been mutually agreed upon. It is important to note that the Fee is non-refundable, even in cases of inactivity or underutilization of an active Account. The Fees do not include taxes, levies, or duties applicable by law, unless the Parties have expressly agreed otherwise in writing. In the event of such an agreement, the responsibility for payment of such taxes, levies, or duties shall fall entirely upon the Client as an additional obligation.
4.2. Fee Amount. The precise amount of the Fee is specified in the financial proposal forwarded by Golfmanager to the Client, which is considered an attachment to this Agreement. The Fee may be subject to an annual increase in accordance with the Consumer Price Index (CPI). Additionally, it may be adjusted at different intervals in the event of enhancements to the functionalities offered by the Platform. In both scenarios, Golfmanager will provide the Client with written notification well in advance. The Client reserves the right to object to such fee modifications, resulting in the option to terminate the Service.
4.3. Payment of the fee. The Fee must be remitted via credit card through the designated payment gateway provided by Golfmanager. Additionally, in select markets, the Client may opt for direct debit as a payment method. In specific instances, at Golfmanager’s discretion, such as when dealing with substantial payments, bank transfers may also be accepted, pending approval by Golfmanager.
4.4. Electronic Invoice. The Client will receive the invoice at the email address provided in writing for this purpose and is obligated to make the payment by the due date specified on the invoice. If the Client has not paid the invoice within thirty (30) days after the due date, the Provider may proceed to disable the associated Account(s), as outlined in this Agreement.
Without prejudice to the foregoing, if the Client fails to pay any invoice by its due date, Golfmanager shall be entitled, in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended by the Late Payment of Commercial Debts Regulations 2002 and 2013), to charge statutory interest on the overdue amount at a rate of 8% per annum above the Bank of England base rate from time to time in force, calculated on a daily basis from the due date until payment is received in full (whether before or after judgment), together with the fixed statutory compensation for debt recovery costs prescribed under that Act. Golfmanager further reserves the right to recover any reasonable additional costs actually incurred in recovering the debt, to the extent such costs exceed the statutory compensation referred to above.
4.5. Payment Plan Changes. Any Client has the right to update their payment plan for the Fees (hereinafter referred to as the “Plan,”) to either expand or adjust it according to their volume needs. If your subscription is monthly, you can make changes at any time by contacting Golfmanager and selecting your new Plan, which will take effect from the next monthly payment. If your subscription is on an annual basis, you have the option to extend the Plan at any time. However, if you wish to make modifications, you must wait until the end of the contracted period. In any case, the new fee will be automatically billed in the subsequent invoices.
5.- CLIENT INFORMATION
5.1. Client Information on the Platform.
To ensure the proper utilization of the Services, the Client is responsible for providing Golfmanager with information through the Platform. In this regard, the Client agrees to:
a) Ensure that the Client and any associated Users do not improperly create, transmit, display, or disseminate such Client information. They must refrain from violating the terms of this Agreement, infringing upon the rights of the Provider, other Clients or Users, individuals, or organizations, and avoid taking any actions or omissions that could be detrimental to the Platform. This includes refraining from transmitting viruses, malware, threats, harassing, defamatory, obscene, or otherwise unlawful or immoral messages; and
b) Confirm that the Client and all associated Users possess the necessary rights and permissions to utilize such Client information. This includes the right to input them into the Platform and utilize them through the relevant Accounts.
5.2. Confidentiality and Security of Client.
The Provider shall implement all requisite organizational, physical, and technical measures to uphold the security, confidentiality, and integrity of the Client’s information. These measures are designed, among other things, to prevent unauthorized access, use, modification, or disclosure of the Client’s information by the Provider’s personnel, except in the following circumstances: (a) When necessary to provide the Services and to address service or technical issues, (b) as mandated by law or court order, if applicable, or (c) when expressly authorized by the Client or User.
6.- PROCESSING OF PERSONAL DATA
6.1. Personal Data. This Agreement involves the processing of personal data by the Parties. Accordingly, in compliance with the UK General Data Protection Regulation (“UK GDPR”), the Data Protection Act 2018 and any other applicable data protection legislation in force in the United Kingdom, the Parties agree as follows:
(i) Golfmanager shall process the personal data of the signatories of this Agreement and the Client’s representatives for the purpose of administering and performing this Agreement. Such processing shall be based on the performance of a contract. Personal data shall not be disclosed to third parties except where necessary for the provision of the Services or where required by law. Data subjects may exercise their rights by contacting Golfmanager at info@golfmanager.com. If they believe that their rights have been infringed, they may lodge a complaint with the Information Commissioner’s Office (ICO).
(ii) Golfmanager shall act as Data Processor in respect of personal data uploaded to the Platform by the Client, while the Client shall act as Data Controller.
(iii) The Parties agree to comply with the Data Processing Agreement incorporated into this Agreement as Annex III.
6.2. Non-personal data.
The Provider may utilize the non-personal data supplied by the Client to the Platform, always in a completely anonymized format and solely for statistical purposes, with the aim of enhancing the Service.
6.3. Privacy Policy.
For additional details regarding the processing of personal data by Golfmanager, the Privacy Policy available at the relevant Golfmanager website shall apply and is incorporated into this Agreement as Annex IV.
7.- INTELLECTUAL PROPERTY RIGHTS
7.1. License to Use the Platform.
Pursuant to this Agreement, the Provider hereby grants the Client a non-exclusive, temporary, non-transferable, and non-sublicensable license, materially limited solely to accessing the Platform as stipulated herein. The Client is not authorized to commercialize to third parties and must adhere to all copyrights and proprietary notices incorporated within the Platform.
7.2. Golfmanager Content.
The Client expressly acknowledges that accessing the Platform and downloading any pre-copyrighted material through the Platform or the Golfmanager Services (referred to as “Golfmanager Content”) does not confer any ownership rights. Consequently, the Client shall refrain from copying, distributing, or publishing any Golfmanager Content or any information obtained or derived from such Golfmanager Content, except as explicitly permitted on the Platform or as outlined in applicable laws.
7.3. Mention of the Client for Promotional Purposes.
The Client hereby grants Golfmanager a non-exclusive, free of charge, indefinite, and materially limited license. This license is granted to enable Golfmanager to mention and/or include the Client’s name, photographs, and/or graphic branding on its website and/or app, as well as on its typical communication channels and social networks. This usage is solely for promotional purposes.
8.- ASSIGNMENT TO THIRD PARTIES
8.1. Assignment. Neither Party may assign, transfer, novate or subcontract this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld or delayed.
Notwithstanding the foregoing, Golfmanager may assign, transfer or novate this Agreement to any affiliate, successor company or purchaser of substantially all of its assets or business without the Client’s consent.
9.- TERMINATION OF THE AGREEMENT
9.1. This Agreement may be terminated for any of the following reasons:
(i) At the Parties’ Discretion: Either Party may terminate the Agreement by providing written notice to the other Party, with a minimum notice period of one hundred and twenty (120) calendar days.
(ii) Non-Payment of Fees: If the Client fails to remit a Fee that has already accrued, as stipulated in this Agreement, Golfmanager may automatically terminate this Agreement without prior notice.
(iii) Termination Due to Breach by Either Party: In the event of a breach by either Party, the Agreement may be terminated through written notice in accordance with the following terms:
a) if either Party is in violation of the Agreement, the other Party may request termination of the Agreement if the violation or default has not been remedied within sixty (60) days after receipt of a notice from the Party in compliance;
b) by the Provider, when the Client or User improperly utilizes the Platform in a manner that poses a threat to the Platform or could impact the rights of third parties, including the Provider;
c) by the Provider, if the Client gives third parties access to Golfmanager Services, the Platform, and the Golfmanager Content without the express consent of the Provider.
10.- APPLICABLE LAW AND JURISDICTION
10.1. Governing Law. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it, its subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales.
10.2. Jurisdiction. The Parties shall first attempt in good faith to resolve any dispute arising out of or in connection with this Agreement through negotiations.
If the dispute has not been resolved within thirty (30) days, the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement, its subject matter or formation.
11.- LIMITATION OF LIABILITY
11.1. Nothing in this Agreement shall exclude or limit either Party’s liability for:
a) death or personal injury caused by negligence;
b) fraud or fraudulent misrepresentation; or
c) any liability which cannot be excluded or limited under applicable law.
11.2. Subject to Clause 11.1, Golfmanager’s total aggregate liability arising out of or in connection with this Agreement shall not exceed the total Fees paid by the Client during the twelve (12) months preceding the event giving rise to the claim.
11.3. Subject to Clause 11.1, neither Party shall be liable for any indirect, incidental, consequential, special or punitive damages, including loss of profits, loss of business, loss of goodwill, loss of anticipated savings or loss of data.
12.- FORCE MAJEURE
Neither Party shall be liable for any delay or failure to perform its obligations under this Agreement where such delay or failure results from events beyond its reasonable control, including war, terrorism, civil unrest, labour disputes, pandemics, governmental actions, telecommunications failures or internet service interruptions.
13.- NOTICES
Any notice given under this Agreement shall be in writing and shall be delivered by email or by courier to the contact details notified by each Party.
14.- SEVERABILITY
If any provision of this Agreement is found to be invalid, illegal or unenforceable, such provision shall be deemed modified to the minimum extent necessary to make it valid and enforceable, and the remaining provisions shall remain in full force and effect.
15.- ENTIRE AGREEMENT
This Agreement, together with its Annexes, constitutes the entire agreement between the Parties and supersedes all prior agreements, negotiations, discussions and understandings relating to its subject matter.
Each Party acknowledges that it has not relied upon any representation, statement or warranty not expressly set out in this Agreement.
16.- THIRD PARTY RIGHTS
A person who is not a Party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
17.- ANNEXES
This Agreement incorporates the following annexes, which are deemed an integral part of this Agreement for all intents and purposes.
- Annex I – Service Level Agreement
- Annex II – Financial Proposal
- Annex III – Data Processing Agreement
- Annex IV – Privacy Policy