Mobiplex™ - TERMS OF USE

Welcome to www.mobiplex.com (the "Site"), a website owned and operated by Mobiplex, Inc. ("Mobiplex," "us," or "we"). Mobiplex is the provider of SwingTIP and the SwingTIP service. This Site contains information about our company and services, and provides the opportunity to purchase the services and associated equipment (the "Equipment"). In addition, Mobiplex maintains a restricted area of the Site made available only to subscribers of the services (each a "Subscriber") that provides these registered users with the ability to view and manage the Subscriber's account and a dashboard of information about the Subscriber's golf swing data as monitored through the SwingTIP services (collectively, the "Dashboard"). The following terms and conditions (the "Terms of Service") form a binding agreement between you and us. Please review the following terms carefully.

Each time you use SwingTIP and its related services (including the online dashboard and smart-phone app) (collectively, the "Services") and/or access the Site, you are agreeing to be bound by these terms, whether you are a "Visitor" (which means that you simply browse the Site), or you are a "Registered User" (which means that you are a Subscriber and have established an account with Mobiplex (your "Account"). If you do not agree to all of these terms, we are unwilling to grant you access to the Site or Services, and you must cease access to the Site and Services immediately.

In addition, certain areas of the Site or Services may be subject to additional terms of use posted within, adjacent to or linked to from such areas. These Terms do not alter in any way the terms or conditions of any of those other written or online terms and conditions or agreements you may have or will have with Mobiplex. To the extent that there is any conflict between these Terms and any terms and conditions or agreements relating to Services you have purchased, including the End User License Agreement, those other terms and conditions or agreements will govern.

  1. USERS. You promise that all information you provide to us is true, accurate, current and complete, and you agree to maintain and promptly update such information to keep it true, accurate, current and complete. If we believe or suspect that such information is untrue, inaccurate, not current or incomplete, we may deny or terminate your access to the Site or Services (or any portion thereof).

    • VISITORS. Visitors may browse the Site in accordance with this Agreement and will not have access to certain Services, including the Dashboard, without becoming a Registered User.

    • REGISTERED USERS. Access to the Dashboard is only available to Registered Users, who are required to set up an Account prior to accessing such Services. When you set up an Account, you are required to provide a valid email address which will serve as your unique user ID and select a password (collectively, the "Account Information"), which you may not transfer to or share with any third parties. If someone accesses our Site or Services using your Account Information, we will rely on that Account Information and will assume that it is really you who is accessing the Site and Services. You are solely responsible for any and all use of your Account Information and all activities that occur under or in connection with the Account. Without limiting any rights which Mobiplex may otherwise have, Mobiplex reserves the right to take any and all action, as it deems necessary or reasonable, to ensure the security of the Site and your Account, including without limitation terminating your Account, changing your password, or requesting additional information to authorize transactions on your Account. You agree to be responsible for any act or omission of any users that access the Site or Services under your Account Information that, if undertaken by you, would be deemed a violation of these Terms of Service. In no event and under no circumstances will Mobiplex be held liable to you for any liabilities or damages resulting from or arising out of (i) any action or inaction of Mobiplex under this provision, (ii) any compromise of the confidentiality of your Account or password, and (iii) any unauthorized access to your Account or use of your password. You may not use anyone else's Account at any time, without the permission of the Account holder. Please notify us immediately if you become aware that your Account Information is being used without authorization. You agree not to register for more than one Account, register for an Account on behalf of an individual other than yourself without such individual's authorization, or register for an Account on behalf of any group or entity.

  2. OWNERSHIP. You understand and acknowledge that the software, code, proprietary methods and systems used to provide the Site or Services ("Our Technology") are: (a) copyrighted by us and/or our licensors under United States and international copyright laws; (b) subject to other intellectual property and proprietary rights and laws; and/or (c) owned by Mobiplex or its licensors. Our Technology may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission and the prior written permission of our applicable licensors. You must abide by all copyright notices, information, or restrictions contained in or attached to any of Our Technology. Nothing in these Terms of Service grants you any right to receive delivery of a copy of Our Technology or to obtain access to Our Technology except as generally and ordinarily permitted through the Site according to these Terms of Service. Furthermore, nothing in these Terms of Service will be deemed to grant, by implication, estoppel or otherwise, a license to Our Technology. Certain of the names, logos, and other materials displayed on the Site or in the Services constitute trademarks, tradenames, service marks or logos ("Marks") of us or other entities. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with us or those other entities. Any use of third party software provided in connection with the Site or Services will be governed by such third parties' licenses and not by these Terms of Service.

  3. RULES REGARDING INFORMATION. When you access the Dashboard as a Registered User, you obtain access to various kinds of information and materials, including but not limited to information about the Subscriber's golf swing data as recorded by the Equipment. All of the information contained in the Dashboard that is customized for the Subscriber will be referred to as the "Dashboard Materials". As between the Subscriber and us, the Subscriber retains any intellectual property rights in the Subscriber specific information contained in the Dashboard Materials, meaning that the Subscriber owns the Subscriber specific data but we continue to own the templates, formats and any proprietary information in the technology. You grant us a non-exclusive, royalty-free, fully paid, fully sublicenseable, worldwide license, under any and all of your intellectual property rights in the Dashboard Materials, to the extent necessary for us to provide the Services. You represent and warrant that you will not post, use or disclose any Dashboard Materials in any manner that: (a) violates our rights, (b) violates the privacy, publicity, or other rights of third parties; or (b) is false or inaccurate. We may, but are not obligated to, delete Accounts and/or remove Dashboard Materials from the Site if we determine or suspect that those Accounts or Dashboard Materials violate the terms of these Terms of Service. We take no responsibility for your exposure to Dashboard Materials on the Site or through the Services, whether it violates our content policies or not.

  4. General Rules of User Conduct. It is our goal to make access to our Site and Services a good experience for you. You agree not to, and represent and warrant that you will not: use, reproduce, sell, resell, display, publicly perform, distribute, modify, import, make, have made, or otherwise exploit any portion of the Site or Services for any purpose other than for which the Site or Services are being provided to you. You further agree that, in using the Site or Services, you will not:

    • Violate any law, statute, ordinance or regulation;

    • Attempt to reverse engineer or jeopardize the correct functioning of the Site, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Site;

    • Attempt to gain access to secured portions of the Site or the Dashboard if you do not possess the necessary access rights;

    • Upload or transmit any form of virus, worm, Trojan horse, or other malicious code;

    • Use the Site or Services to generate unsolicited email advertisements or spam; allow, enable, or otherwise support the transmission of mass unsolicited, commercial advertising or solicitations via e-mail (spam);

    • Use the Site or Services to stalk, harass, harm another individual, or post any explicit or profane content or images;

    • Use any high volume automatic, electronic or manual process to access, search or harvest information from the Site or Services (including without limitation robots, spiders or scripts);

    • Interfere in any way with the proper functioning of the Site and Services or interfere with or disrupt any servers or networks connected to the Site or Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Site or Services;

    • Use any robot, spider, other automatic device, or manual process to extract, "screen scrape," monitor, "mine," or copy any static or dynamic web page on the Site or the content contained on any such web page for commercial use without our prior express written permission

    • Impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or

    • Mirror or frame the Site, place pop-up windows over its pages, or otherwise affect the display of its pages.

  5. Fees.

    • If you place an order (an "Order") from the website, you will be required to provide your credit card number and provide Mobiplex with the relevant billing information (the "Billing Information"). You agree to pay Mobiplex the fees set forth in the Order and in the case of Premium Service, for the initial period set forth in the Order (e.g., one year) (the "Initial Order Period"). At the conclusion of the Initial Order Period, you agree to pay Mobiplex the annual recurring fees for Services at Mobiplex's then current-rates, and you hereby authorize Mobiplex to use the Billing Information on file to automatically bill you for such Services during the any renewal period. Mobiplex will bill you on or about the first day of each renewal period. Mobiplex reserves the right, at any time, to change the prices and billing methods for Services without prior notice, provided that all changes to Mobiplex's then-current rates will take effect no earlier than the first day of your next Renewal Period.

    • You agree that no additional notice or consent is required before Mobiplex charges your credit card for all amounts due and payable, unless otherwise required by law. By providing Mobiplex with your Billing Information, you agree that Mobiplex is authorized to immediately charge your credit card for all fees and charges due and payable pursuant to Section 5. You agree to immediately notify us of any change in your Billing Information. You agree that in the event Mobiplex is unable to collect the fees you owe Mobiplex, Mobiplex may take any steps it deems necessary to collect such fees from you, including but not limited to terminating your account.

    • Refunds. In the event a Subscriber decides to cancel a Premium Service Subscription, Mobiplex will provide subscriber with a refund of the fees pre-paid for Services if the cancellation request is received within thirty (30) days of initial purchase of the Premium Service. Mobiplex will issue such refund within sixty (60) days of the date your cancellation request is processed. Cancellation requests outside of the initial thirty day period will not be refunded. You will not be entitled to any refund for any termination of the Services by Mobiplex pursuant to a breach of this Agreement or the agreement between Mobiplex and the Subscriber.

  6. MODIFICATIONS TO TERMS. We may change the terms of these Terms of Service from time to time on a going-forward basis. We will notify you of any such changes by posting notice of the changes on the Site, and/or, in our sole discretion, by email (for Registered Users only). Any such modifications become effective upon the earlier to occur of (a) your acknowledgement of such modifications; or (b) your continued access to and/or use of the Site or Services after we post notice of such modifications. It is your sole responsibility to check the Site from time to time to view any such changes to the terms in the Terms of Service. If you do not agree to any changes, if and when such changes may be made to the Terms of Service, you must cease access to the Site and use of the Services. You give us permission to email you for the purpose of notification as described in this Section.

  7. MODIFICATIONS TO THE SITE OR SERVICES. We reserve the right to modify or discontinue the Site or Services with or without notice to you. We will not be liable to you or any third party should we exercise our right to modify or discontinue the Site or Services. If you object to any such changes, your sole recourse will be to cease access to the Site or Services. Continued access to the Site or Services following notice of any such changes will indicate your acknowledgement of such changes and satisfaction with the Site or Services as so modified.

  8. PRIVACY. We know that you are concerned about your privacy and the protection of your personal information. Please view our privacy policy located at http://www.swingtip.com/privacy to learn more about our collection, use and disclosure of your information.

  9. Other Websites. The Site and Services may contain links to websites not operated by US. We are not responsible for the CONTENT, products, materials, or practices (including privacy practices) of such websites. You understand that by using the Site and/or Services you may be exposed to third-party websites that you find offensive, indecent or otherwise objectionable. We make no warranty, representation, endorsement, or guarantee regarding, and accept no responsibility for, the quality, content, nature or reliability of third party websites, products or services accessible by hyperlink OR OTHERWISE from the Site or Services. We provide these links for your convenience only and we do not control such websites. Our inclusion of links to such websites does not imply any endorsement of the materials on such third party websites or any association with their operators. It is your responsibility to review the privacy policies and terms of use of any other website you visit. You agree that in no event will we be liable to you in connection with any websites, content, products, materials, or practices of any third party.

  10. DURATION OF ACCESS. You agree that we, in our sole discretion, may immediately terminate your access to the Site and Services at any time, for any reason, in our sole discretion. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SITE OR DELETION OF SUCH ACCOUNT. TERMINATION OF YOUR ACCOUNT WILL IN NO WAY MODIFY, CHANGE OR VOID ANY PAYMENT OBLIGATIONS YOU MAY HAVE INCURRED THROUGH YOUR USE OF THE SERVICES, WHETHER SUCH OBLIGATION IS TO US OR A THIRD PARTY.

  11. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY AGREE THAT USE OF THE SITE OR SERVICES IS AT YOUR SOLE RISK. BOTH THE SITE AND SERVICES ARE PROVIDED BY US ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, TITLE, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA AND SYSTEM INTEGRATION. WE MAKES NO WARRANTY THAT THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SITE OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR SERVICES OR THAT DEFECTS IN THE SITE OR SERVICES WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SERVICES OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR INFORMATION.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE SITE, SERVICES OR OTHERWISE WILL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT PROTECTION OF YOUR DATA NOR GUARANTEE DATA AVAILABILITY WHATSOEVER. YOU BEAR THE SOLE RESPONSIBILITY AND LIABILITY FOR MAINTAINING BACKUP OR ARCHIVE COPIES OF YOUR DATA AND/OR SUBMISSIONS TO THE SITE AND SERVICES.

  1. LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE ACCESS TO THE SITE AND TO PROVIDE THE SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY). IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR THE PROCUREMENT OF SUBSTITUTE SERVICES OR IN CONNECTION WITH ANY ACT OR OMISSION OF ANY RELATED PARTY. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THIS SITE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND THE SERVICES. OUR TOTAL LIABILITY TO YOU FOR ANY PARTICULAR CLAIM ARISING FROM OR RELATED TO THE SITE OR THE SERVICES IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES ACTUALLY RECEIVED BY US FOR THE SERVICES RECEIVED BY THE APPLICABLE SUBSCRIBER DURING THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM; OR (B) FIVE DOLLARS (U.S. $5.00). NOTWITHSTANDING THE FOREGOING, OUR AGGREGATE LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE SITE OR THE SERVICES IS LIMITED, IN AGGREGATE, TO THE GREATER OF (I) THE AMOUNT OF FEES ACTUALLY RECEIVED BY US FOR THE SERVICES RECEIVED BY THE APPLICABLE SUBSCRIBER DURING THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM; OR (II) FIFTY DOLLARS (U.S. $50.00). Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law.

WE reserve the right, but have no obligation, to monitor, or take any action we deem appropriate regarding, disputes that you may have WITH OUR service providers OR A RELATED USER. Without limiting the foregoing, under no circumstances WILL we or our licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, OR non-performance of third parties.

  1. INDEMNIFICATION. You agree to indemnify, defend and hold harmless us, our parents, subsidiaries, affiliates, officers, directors, co-branders and other partners, employees, consultants and agents, from and against any and all third-party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys' fees and court costs) that such parties may incur as a result of or arising from (a) any Dashboard Materials,(b) your use of the Site or Services, (c) your violation of these Terms of Service, (d) your violation of any rights of any other person or entity or (e) any viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines input by you into the Site or Services.

  2. COPYRIGHT VIOLATIONS. We respect the intellectual property of others, and we ask you to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our Copyright Agent the following information:

    • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;

    • a description of the copyrighted work that you claim has been infringed;

    • a description of where the material that you claim is infringing is located on the Site or Services;

    • your address, telephone number, and email address;

    • a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and

    • a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

Our Copyright Agent for notice of claims of copyright infringement on the Site or Services can be reached by directing an e-mail to support@mobiplex.com.

  1. NOTICE. The communications between you and us use electronic means, whether you visit the Site or send us emails. For contractual purposes, you (a) consent to receive communications from us in an electronic form, whether via email, our posting on the Site or other reasonable means; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in a writing. The foregoing does not affect your non-waivable rights. You may also receive a copy of these Terms of Service by accessing this Site. You must give notice to us in writing via email or as otherwise expressly provided.

  2. General Terms. You are responsible for compliance with all applicable laws. The Terms of Service and the relationship between you and us will be governed by the laws of the State of Delaware, without giving effect to any choice of laws principles that would require the application of the laws of a different country or state. Any legal action, suit or proceeding arising out of or relating to the Terms of Service, or your use of the Site or Services must be instituted exclusively in the federal or state courts located in the State of Delaware and in no other jurisdiction. You further consent to exclusive personal jurisdiction and venue in, and agree to service of process issued or authorized by, any such court. These Terms of Service are personal to you, and you may not transfer, assign or delegate your right and/or duties under these Terms of Service to anyone else and any attempted assignment or delegation is void. You acknowledge that we have the right hereunder to seek an injunction, if necessary, to stop or prevent a breach of your obligations hereunder. The paragraph headings in these Terms of Service, shown in boldface type, are included only to help make these Terms of Service easier to read and have no binding effect. Any delay or failure by us to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. No waiver by us will have effect unless such waiver is set forth in writing, signed by us; nor will any such waiver of any breach or default constitute a waiver of any subsequent breach or default. Except as expressly set forth herein, these Terms of Service constitute the complete and exclusive agreement between you and us with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements. If for any reason a court of competent jurisdiction finds any provision of these Terms of Service, or portion thereof, to be unenforceable, that provision of the Terms of Service will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of these Terms of Service will continue in full force and effect.

  3. SURVIVAL. Sections 2, 3, 5 and 9 through 17, as well as any other limitations on liability explicitly set forth herein and our proprietary rights in and to our content and Services, will survive the expiration or termination of these Terms of Service for any reason.

Please report any violations of these Terms of Service to support@mobiplex.com.

LAST UPDATED: July 11, 2012