End User License Agreement

PLEASE READ THIS DOCUMENT CAREFULLY!

PROCEEDING WITH USE OF THE SWINGTRACKER PRODUCT CONTAINED WITHIN THE PACKAGE (THE “SWINGTRACKER PRODUCT”) OR THE INSTALLATION OR ACCESSING THE DIAMOND KINETICS SOFTWARE, INCLUDING, WITHOUT LIMITATION, THE DIAMOND KINETICS MOBILE APPLICATIONS, ON A COMPUTER, SMARTPHONE, TABLET OR OTHER COMPUTING DEVICE (SUCH SOFTWARE BEING REFERRED TO HEREIN AS THE “SWINGTRACKER SOFTWARE” AND, TOGETHER WITH THE SWINGTRACKER PRODUCT, THE “PRODUCTS”) INDICATES YOUR ACCEPTANCE OF THESE LICENSING TERMS.

IF YOU DO NOT AGREE WITH THESE TERMS, YOU SHOULD NOT USE THE SWINGTRACKER PRODUCT OR INSTALL OR USE THE SWINGTRACKER SOFTWARE, AND YOU SHOULD RETURN THE PACKAGE CONTAINING THE SWINGTRACKER PRODUCT TO THE POINT OF PURCHASE WITH A DATED RECEIPT WITHIN THIRTY (30) DAYS TO APPLY FOR A REFUND.

LICENSE AGREEMENT

This SwingTracker End User License Agreement (this “License Agreement”) is a legal agreement between you and Diamond Kinetics, Inc. (“Licensor”). By using or installing any of the Products, you acknowledge and agree that you have read, understood and agreed to this License Agreement and that this License Agreement is enforceable like any written negotiated agreement signed by you. Any and all software (including any embedded software, drivers, enhancements, revisions, downloads, modifications or updates), documentation and any fonts, whether on disk, in read only memory, on any other media or in any other form, that either came with the SwingTracker Product or is downloaded or installed on the SwingTracker Product or on any smartphone, tablet or other computing device in connection with the Products are licensed, not sold, to you by Licensor for use only under the terms of this License Agreement, and Licensor reserves all rights not expressly granted to you.  This License Agreement is a supplement to, and not in lieu of, the Diamond Kinetics Terms and Conditions of Use (the “Terms of Use”), which may be found on the Licensor’s website (www.diamondkinetics.com) and mobile applications.  In the event of a conflict between the terms hereof and the Terms of Use, the Terms of Use shall govern.  Access to and use of the SwingTracker Software is hereby incorporated by reference into the definition of “Services” in the Terms of Use

1) Grant of License

Licensor provides limited access to the SwingTracker Software and, as further described herein, grants a limited license for the use of the Products under the terms of this License Agreement.

  1. Subject to the terms and conditions of this License Agreement, Licensor hereby grants to you a limited, personal, worldwide, revocable, nontransferable, non-exclusive license to use the Products under the terms stated in this License Agreement solely for personal, noncommercial use in connection with the single SwingTracker P Title, ownership and copyright of the SwingTracker Software and any swing and other information stored on your SwingTracker account are vested in, and remain with, the Licensor. The rights granted herein are limited to the use of the Products and your SwingTracker account in accordance with this License Agreement, and do not include any rights in any patents or other intellectual property rights of Licensor. You may not reverse engineer, de-compile, disassemble or otherwise attempt to learn the source code, structure, algorithms or ideas underlying the Products, nor shall you modify, adapt, translate or create derivative works based on the Products. The SwingTracker Software and other software downloaded from the Licensor’s website may not be used with, transferred or transmitted to any other hardware, except to an authorized SwingTracker hardware/software system in your name for personal noncommercial use in accordance with this License Agreement.
  2. You may not assign, distribute, lease, rent, lend, sublicense, or transfer this license to the Products or any of their modules or components, except as provided herein, or disclose the SwingTracker Software to any other person or entity, or otherwise offer access to or use of, the SwingTracker Software via the Internet or via any other network which is available to or accessible by third par Any attempt to do so is a violation of the rights of Licensor and its third-party licensors. If you breach this restriction, you may be subject to prosecution and damages. You may, however, make a one-time permanent transfer of all of your rights to the SwingTracker Software to another party in connection with the transfer of ownership of the SwingTracker Product, provided that: (a) the transfer must include the SwingTracker Product and all of the SwingTracker Software, including all its component parts, original media, printed materials and this License Agreement; (b) you do not retain any copies of the SwingTracker Software, full or partial, including copies stored on a computer or other storage device; (c) the party receiving the SwingTracker Software reads and agrees to accept the terms and conditions of this License and (d) the transfer is not of a commercial nature.

You agree to reasonably cooperate with Licensor in inquiries by Licensor regarding your downloading and/or use of the SwingTracker Software.

  1. You agree that Licensor may send communications to you regarding the Products, your use of the Products, your SwingTracker account and other notifications relevant to the Products you have registered with
  2. This License Agreement is effective until expiration or termination by Licensor as provided herein. This license terminates, without notice, if you fail to comply with any provision of this You agree upon expiration or termination of this License Agreement to destroy the SwingTracker Software, together with all copies, modifications and merged portions in any form, including any copy in your computer memory or on a hard disk.
2) DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY

YOU AGREE THAT YOUR USE OF THE PRODUCTS SHALL BE AT YOUR SOLE RISK.  THE PRODUCTS ARE PROVIDED HEREUNDER ON AN “AS-IS” BASIS AND, TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSOR, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS DISCLAIM ALL WARRANTIES, ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE IN CONNECTION WITH THE PRODUCTS AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR-FREE OPERATION OR OTHERWISE HEREUNDER, ANY LIABILITY IN NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE AND IN NO EVENT SHALL LICENSOR BE LIABLE TO YOU FOR ANY DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS.  LICENSOR MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SWINGTRACKER SOFTWARE OR CONTENT ON SUCH SWINGTRACKER SOFTWARE.

IN NO EVENT SHALL LICENSOR, ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM (I) ANY ERRORS, MISTAKES OR INACCURACIES OF CONTENT IN OR IN CONNECTION WITH THE PRODUCTS, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE PRODUCTS, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF THE LICENSOR’S SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SWINGTRACKER SOFTWARE, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SWINGTRACKER SOFTWARE BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND, INCLUDING PERSONAL INJURY OR DEATH, INCURRED AS A RESULT OF YOUR USE OF THE PRODUCTS OR THE USE OF ANY CONTENT POSTED, MESSAGED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA THE SWINGTRACKER SOFTWARE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT LICENSOR IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

YOU EXPRESSLY RELEASE, DISCHARGE AND AGREE TO SAVE HARMLESS LICENSOR, INCLUDING ITS AGENTS, PARTNERS, EMPLOYEES, LICENSEES, ASSIGNS AND ALL OTHER PERSONS ACTING UNDER ITS PERMISSION OR AUTHORITY FROM AND AGAINST ANY AND ALL CLAIMS WHICH YOU HAVE OR MAY HAVE FOR INVASION OF PRIVACY, LIBEL, DEFAMATION OR ANY OTHER CAUSE OF ACTION ARISING OUT OF LICENSOR’S RECORDAL, COLLECTION, STORAGE, REPRODUCTION, COMPILATION, DISPLAY, PERFORMANCE, PUBLICATION AND PUBLIC DISSEMINATION OF THE DATA GENERATED FROM YOUR USE OF THE PRODUCTS AND YOUR BIOGRAPHICAL MATERIALS, INCLUDING WITHOUT LIMITATION, BY VIRTUE OF ANY ERRORS THAT MAY OCCUR.

3) Export Control

You may not use or otherwise export or re-export the Products except as authorized by applicable law. In particular, but without limitation, the Products may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Products, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Products for any purposes prohibited by United States and other applicable law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. Use of some features and functionality of the Products and related accessories may be restricted by the laws of countries other than the country in which the Products and related accessories are purchased, which shall be deemed to be the United States. If you intend to use the Products and related accessories in a country other than the United States, you are solely responsible for determining whether use of all features and functionality of the Products and related accessories are permitted in such other country.

4) Ownership of Uploaded Data

As further described in the Terms of Use, you acknowledge and agree that any information (other than personal financial information), including data, posted or uploaded by you to Licensor or to any website or mobile application maintained by Licensor shall be and become the property of Licensor, and you hereby assign, convey and transfer to Licensor all of your right, title and interest in and to such information, including, without limitation, any copyright or other intellectual property rights you may have in such data.  Such information may be used by Licensor in compliance with its privacy policy, as set forth in the Terms of Use.

5) Amendments or Modifications to this License Agreement, Modification of Software Support

Licensor shall have the right to amend or modify this License Agreement from time to time. All such amendments or modifications shall be effective on the date the amended or modified End User License Agreement is posted to Licensor’s website at www.diamondkinetics.com. Licensor reserves the right to change or discontinue its support of the Products.

6) Choice of Law

This License Agreement is governed by the laws of the Commonwealth of Pennsylvania, without regard to its choice of laws rules. You acknowledge that the SwingTracker Software and updates licensed under this License Agreement are provided through computer servers maintained in the Commonwealth of Pennsylvania, USA and that such jurisdiction has a significant and meaningful connection with the transaction in which you obtained such SwingTracker Software and updates. This License Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License Agreement shall continue in full force and effect to the fullest extent permitted by law.

7) Dispute Resolution

Licensor and you agree to arbitrate all disputes and claims between us arising out of this License Agreement, or relating to the Products, websites, applications or communications associated with this License Agreement, on an individual, bilateral, non-class/non-representative basis.  For purposes of this arbitration provision, references to Diamond Kinetics, Inc. or Licensor shall include our affiliates, agents, vendors, service providers, employees, predecessors in interest, successors and assigns, websites of the foregoing, as well as all authorized or unauthorized users or beneficiaries of services and/or websites (each a “Covered Party” and collectively, “Covered Parties”).

This arbitration provision is intended to be broadly interpreted to make all disputes and claims between Covered Parties subject to individual arbitration to the fullest extent permitted by law.  This arbitration provision otherwise includes, but is not limited to:  claims arising out of or relating to any aspect of the relationship between us whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and claims that may arise after the termination of this License Agreement.  All issues are for the arbitrator to decide, including disputes relating to the enforceability, scope, and interpretation of the arbitration provision, and any disputes relating to whether this arbitration provision has been waived, nullified or voided.

You agree that, by entering into this License Agreement, you and all other Covered Parties are each waiving the right to a trial by jury or to participate in a class or collective action. This License Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision. The arbitration shall be conducted in accordance with the consumer arbitration rules of the American Arbitration Association (“AAA”).  You can find a copy of the latest AAA rules for consumer disputes at www.adr.org, or we can provide you a copy if you request it.  The arbitration shall take place in Pittsburgh, Pennsylvania.  The parties shall select a mutually agreeable arbitrator from the AAA.  Unless otherwise precluded by law, each Covered Party shall separately pay its own attorney’s fees and costs. This arbitration provision shall survive termination of this License Agreement and our relationship, or any relationship you may have with a Covered Party.

8) Complete Agreement

This License Agreement, together with any license agreement you entered in connection with a SwingTracker account and the Terms of Use, constitutes the entire agreement between the parties with respect to the use of the Products licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. Any translation of this License Agreement is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License Agreement shall govern.