In this End User License Agreement (the “Agreement”), we use the term “we,” “us” or “Perfect Parallel” for Perfect Parallel Inc. and we use the term “you” or “your” to mean you as an individual or such entity in whose behalf you act, if any. PLEASE READ THIS AGREEMENT CAREFULLY. You may use our software and applications only on the condition that you agree to abide by all of the terms of this AGREEMENT. YOU INDICATE YOUR AGREEMENT TO THE TERMS OF THIS AGREEMENT BY YOUR ACT OF CLICKING TO ACCEPT THESE TERMS AND/OR BY INSTALLING, COPYING OR USING THE SOFTWARE. If you do not agree with all of these terms, click cancel, and do not install, copy or use the Software. Please note that your agreement to these terms ALSO means that YOU AGREE TO RESOLVE ANY DISPUTE OVER THIS AGREEMENT OR OUR SOFTWARE IN THE FEDERAL OR STATE COURTS LOCATED IN THE STATE OF NEW YORK.
Software. This Agreement applies to the software, applications and any updates provided by Perfect Parallel and its suppliers, including without limitation Terrain Forge, Nicklaus Design Course Forge, and Jack Nicklaus Perfect Golf (collectively, the “Software”). We may discontinue or change any feature of the Software at any time and without notice.
Ownership of, and Right to Use, the Software. This Agreement is a license of the Software and is not a sale. Your license confers no title or ownership in the Software. The Software is protected by copyright and other intellectual property laws and by international treaties. We and our suppliers own all rights in the Software. Your rights to use the Software are limited to those specified in this Agreement and we retain and reserve all rights not expressly granted to you. To make use of the Software, you must first register with Perfect Parallel and you may be required to maintain a connection to the Internet to use the full feature set of the Software and to receive any Updates.
Grant of Limited License. Provided that you comply with all of the terms of this Agreement, we grant you a personal, limited, terminable, non-exclusive and non-transferable license to install and use the Software on a single computer for personal, non-commercial use. This license does not entitle you to receive from us any hard-copy documentation, support, telephone assistance, or enhancements, bug fixes or updates to the Software.
No Commercial Use. This Agreement provides you a limited right, subject to certain restrictions, to use the Software on a single computer for personal use only. You may not duplicate, distribute, sell, rent, lend or display any part or all of the Software or any User Generated Content (as defined below) in a commercial setting; or otherwise use any part or all of the Software or any User-Generated Content in any way, directly or indirectly, to generate revenue for yourself or any third party or in exchange for any consideration or value of any kind (without limitation, “Commercial Use”) without first entering into an express written agreement (a “Commercial License”) with Perfect Parallel. If you would like to use the Software or any User-Generated Content for Commercial use, please contact Perfect Parallel at sales@perfectparallel.com. Perfect Parallel is under no obligation to agree to grant a Commercial License for any of the Software to any person or entity at any time.
User-Generated Content. Some, but not all, of the Software is intended to be used in conjunction with Third Party Services (as defined below) to generate certain output, including, but not limited to, heightmaps and overhead imagery (Terrain Forge), or virtual terrain and golf courses with enhanced features (Nicklaus Design Course Forge) (collectively, “User-Generated Content”). You may use, reproduce, publish, perform, display and distribute any User-Generated Content you create using the Software however you wish, but solely for personal use and not for Commercial Use as defined above. You hereby grant Perfect Parallel and its affiliates the non-exclusive, irrevocable right to use, reproduce, modify, create derivative works from, distribute, transmit, broadcast, and otherwise communicate, and publicly display and publicly perform, your User Generated Content, and derivative works of your User Generated Content.
Additional License and Use Restrictions. Notwithstanding the grant to you of a limited license to use the Software as set forth in Section 3, above, you may not: (i) make any copies of the Software other than an archival copy, (ii) modify or create any derivative works of the Software or any associated documentation (the “Documentation”) other than as expressly set forth herein; (iii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, underlying ideas, or algorithms of the Software; (iv) attempt to gain unauthorized access to any service, account, computer system or network associated with the Software; (v) attempt to scrape, copy, resell or redistribute our databases either manually or through automated means; (vi) rent, lend, lease, assign, sublicense or otherwise transfer rights to the Software; (vii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software; (viii) block, disable, or otherwise effect any feature that constitutes an integral part of the Software; (ix) use the Software in any way that violates this Agreement or any law; (xi) use the Software in any way that violates the rights of any third party; or (x) authorize or assist any third party or use automated means to do any of the things described in this paragraph.
Restrictions on Distribution. The Software is offered in the United States. You understand and agree that the Software (i) is not designed or customized for distribution for any specific country or jurisdiction (“Territory”) and (ii) is not intended for distribution to, or use by, any person or entity in any Territory where such distribution or use would be contrary to local law or regulation. You are solely responsible for compliance with local laws as applicable when you use the Software.
Third Party Applications or Services. Some of the Software may have the capability of interfacing with, or connecting to, third party services, applications, products, servers or platforms that are not owned, controlled, or authorized by or associated in any way with Perfect Parallel (collectively, “Third Party Services”). Your connection with, or use of any Third Party Services will be at your own risk and subject to the terms and conditions of those third parties. Any separate charges or fees imposed by Third Party Services are your sole responsibility. We make no representations or warranties, express or implied, regarding any Third Party Services. You agree that we are under no obligation to provide you with any error corrections, updates, upgrades, fixes and/or enhancements to make the Software accessible through or compatible with these Third Party Services.
Payment of Fees. Some of the Software (Terrain Forge and Nicklaus Design Course Forge) is made available without charge for personal, non-commercial use to create content for Jack Nicklaus Perfect Golf, subject to the terms and conditions of this Agreement, whereas other Software is licensed in exchange for payment of a license fee. ALL LICENSE FEES AND ANY CHARGES UNDER THIS AGREEMENT ARE NOT REFUNDABLE IN WHOLE OR IN PART, REGARDLESS OF THE PAYMENT METHOD, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
IF YOU ARE AN EU LICENSEE YOU HAVE THE RIGHT TO WITHDRAW FROM A PURCHASE TRANSACTION FOR DIGITAL CONTENT WITHOUT CHARGE AND WITHOUT GIVING ANY REASON UNTIL DELIVERY OF SUCH CONTENT HAS STARTED OR PERFORMANCE OF THE SERVICE HAS COMMENCED. YOU DO NOT HAVE A RIGHT TO WITHDRAW FROM A TRANSACTION OR OBTAIN A REFUND ONCE DELIVERY OF THE CONTENT HAS STARTED OR THE PERFORMANCE OF THE SERVICE HAS COMMENCED, AT WHICH POINT YOUR TRANSACTION IS FINAL. YOU AGREE THAT DELIVERY OF DIGITAL CONTENT, AND THE ASSOCIATED SUBSCRIPTION, AND/OR PERFORMANCE OF THE ASSOCIATED SERVICE, COMMENCES AT THE MOMENT THE DIGITAL CONTENT IS ADDED TO YOUR ACCOUNT OR INVENTORY OR OTHERWISE MADE ACCESSIBLE TO YOU FOR DOWNLOAD OR USE.
Payment Authorization. When you provide payment information to Perfect Parallel or to one of its payment processors, you represent that you are the authorized user of the card, PIN, key or account associated with that payment, and you authorize us to charge your credit card or to process your payment with the chosen third-party payment processor for any fees or charges incurred by you. Perfect Parallel may require you to provide your address or other information in order to meet our obligations under applicable tax law.
Tax. If your use of the Software is subject to any type of use or sales tax, then We may also charge you for those taxes, in addition to the fees or other charges. The European Union VAT (“VAT”) tax amounts collected by Perfect Parallel reflect VAT due on the value of any Software.
Your Representations. You represent and warrant that you have adequate legal capacity to enter into this Agreement, that you will use the Software only for lawful purposes, and that you will not violate the terms of this Agreement. You also represent and warrant to us that you have sufficient rights in all User Generated Content to grant Perfect Parallel described in Section 5, above. This includes, without limitation, any kind of intellectual property rights or other proprietary or personal rights affected by or included in the User Generated Content. You further represent and warrant that the User Generated Content, your submission of that Content, and your granting of rights in that Content does not violate any applicable contract, law or regulation.
Automated Download. Some of the Software has been designed so that it can be delivered in segments to ensure that the download will be quick and convenient. In such cases, a small piece of software may be installed initially that can then "call out" over the Internet to a web server and complete its installation on your computer at a later time (i) during the installation process, (ii) when you have available bandwidth, or (iii) when you have requested use of a function that requires that portion of the Software. This mechanism will only be used to complete the installation of the Software you have chosen to install.
Automated Updates. We may, but are not obligated to, deliver to your computer automated updates, upgrades, modifications, and/or patches to address issues such as security, interoperability, and performance (collectively “Updates”). You consent to such Updates, and you authorize us to deliver automatically any Update if we believe it is necessary to provide for the continued functionality of the Software. Your use of the Updates will be governed by this Agreement unless you are asked to agree to new or additional terms and conditions at the time of download or installation.
Performance and Usage Information. The Software is configured to report back information automatically for registration purposes and relating to computer errors arising in connection with use of the Software, without notice to you. Information on your Software configuration settings may be included. This data is sent to us to help diagnose performance issues with, and improve, the Software. The Software may contain a specific identification number for the purpose of tracking the number of unique instances of the Software in use.
Use and Availability of Open Source Code. Portions of some of the Software may have been created using source code available through various open source projects. In such cases, the licenses and availability of source code for such components are specified in a copyright notice document delivered with or linked from such Software.
Feedback. You agree that Perfect Parallel may use in any manner, without limitation and for no compensation, all comments, suggestions, complaints and other feedback you may provide relating to the Software.
Termination. This agreement automatically terminates if you fail to comply with any of the terms hereof or if you attempt to assign the agreement or transfer the software to a third party except as expressly permitted in this agreement. Upon termination, you must stop all use of the software and must destroy all copies of the Software that are in your possession. All provisions of this Agreement, except for the license grant in Section 3 above, survive the termination of this Agreement.
Injunctive Relief. You agree that your breach or threatened breach of this Agreement will cause us irreparable damage for which recovery of money damages would be inadequate and that we, therefore, may obtain timely injunctive relief to protect our rights under this Agreement in addition to any and all other remedies available to us at law or in equity.
Disclaimer of Warranty. WE LICENSE THE SOFTWARE “AS IS” AND WITH ALL FAULTS. WE DO NOT WARRANT THAT THIS SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, EFFORT AND COST OF ANY SERVICE AND REPAIR IS WITH YOU. WE AND OUR SUPPLIERS DISCLAIM ALL EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, NON-INFRINGEMENT OR ACCURACY, EXCEPT TO THE EXTENT THAT SUCH IMPLIED WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR BY ANY AUTHORIZED REPRESENTATIVE OF PERFECT PARALLEL SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY THAT CANNOT BE DISCLAIMED UNDER APPLICABLE LAW. PERFECT PARALLEL AND ITS LICENSORS HAVE NO LIABILITY WITH RESPECT TO YOUR USE OF THE SOFTWARE. IF ANY IMPLIED WARRANTY MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW, THEN SUCH IMPLIED WARRANTY IS LIMITED TO 30 DAYS FROM THE DATE YOU ACQUIRED THE SOFTWARE FROM US OR OUR AUTHORIZED DISTRIBUTOR.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PERFECT PARALLEL OR ITS DIRECTORS, EMPLOYEES, DISTRIBUTORS, LICENSORS, SUPPLIERS, AGENTS OR RESELLERS (COLLECTIVELY, THE "PERFECT PARALLEL GROUP") BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, THE PERFECT PARALLEL GROUP'S ENTIRE COLLECTIVE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES YOU PAID FOR THIS LICENSE (IF ANY) AND REPLACEMENT OR PROVISION OF A REASONABLY SIMILAR SOFTWARE PRODUCT, AS DETERMINED AT PERFECT PARALLEL’S SOLE DISCRETION, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF PERFECT PARALLEL TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU.
No Support or Upgrade Obligations. We are not obligated to create or provide any support, corrections, updates, upgrades, bug fixes and/or enhancements of the Software.
Export Control Compliance. The Software is subject to export and import laws, regulations, rules and orders of the United States and foreign nations. You must comply with these laws that apply to the Software. You may not directly or indirectly export, re-export, transfer, or release the Software, any other commodities, software or technology received from us, or any direct product thereof, for any proscribed end-use, or to any proscribed country, entity or person (wherever located), without proper authorization from the U.S. and/or foreign government.
High Risk Activities. The Software is not fault-tolerant and is not designed, manufactured or intended for use in environments in which its failure could lead directly to death, personal injury, or severe physical or environmental damage, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems ("High Risk Activities"). ACCORDINGLY, WE AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. YOU AGREE THAT THE PERFECT PARALLEL GROUP WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM THE USE OF THE SOFTWARE IN SUCH APPLICATIONS.
U.S. Government End-Users. The Software is a "commercial item," as that term is defined in 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. § 12.212 (Sept. 1995) and 48 C.F.R. § 227.7202 (June 1995). Consistent with 48 C.F.R. § 12.212, 48 C.F.R. § 27.405(b) (2) (June 1998) and 48 C.F.R. § 227.7202, all U.S. Government End Users acquire the Software with only those rights as described in this License.
Electronic Notices. YOU AGREE TO THIS LICENSE ELECTRONICALLY. YOU AUTHORIZE US TO PROVIDE YOU ANY INFORMATION AND NOTICES REGARDING THE SOFTWARE (“NOTICES”) IN ELECTRONIC FORM. WE MAY PROVIDE NOTICES TO YOU (1) VIA E-MAIL IF YOU HAVE PROVIDED US WITH A VALID EMAIL ADDRESS OR (2) BY POSTING THE NOTICE ON A WEBSITE DESIGNATED BY US FOR THIS PURPOSE. The delivery of any Notice is effective when sent or posted by Perfect Parallel, regardless of whether you read the Notice or actually receive the delivery. You can withdraw your consent to receive Notices electronically by discontinuing your use of the Software..
Indemnification. Upon a request by us, you agree to defend, indemnify, and hold harmless us and our parent and other affiliated companies, and our respective employees, contractors, officers, directors, and agents from all liabilities, claims, and expenses, including attorneys’ fees that arise from your use or misuse of the Software. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
Governing Law. You agree that the laws of the State of New York govern this contract and any claim or dispute that you may have against us, without regard to New York’s conflict of laws rules, and that the United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. You expressly agree that exclusive jurisdiction of any claim or dispute with Perfect Parallel or relating in any way to your use of the Software resides in the federal and state courts located in the State of New York and you further agree and expressly consent to the exercise of personal jurisdiction in such courts in connection with any such dispute, including any claim involving Perfect Parallel or the Software. Please note that by agreeing to the terms of this Agreement, you are waiving claims that you might otherwise have against us based on the laws of other jurisdictions, including your own.
Entire Agreement. This Agreement constitutes the entire agreement between you and us concerning the subject matter of this Agreement, which may only be modified by us.
Invalidity. If any part of this Agreement is held invalid or unenforceable, that part shall be construed to reflect the parties' original intent, and the remaining portions remain in full force and effect, or we may at our option terminate this Agreement.
No Waiver. A waiver by Perfect Parallel of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.
Assignment. You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. We may assign this Agreement to any entity in our sole discretion and without notice to you. This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns.
Force Majeure. Neither party shall be in default or be liable for any delay, failure in performance or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.
Users Outside the United States. If you are using the Software outside the U.S., then the provisions of this Section shall apply: (i) Les parties aux présentés confirment leur volonté que cette convention de même que tous les documents y compris tout avis qui s'y rattaché, soient redigés en langue anglaise. (translation: "The parties confirm that this Agreement and all related documentation is and will be in the English language."); (ii) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Software, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable; and (iii) if the laws applicable to your use of the Software would prohibit the enforceability of this Agreement, or impose any additional burdens on Perfect Parallel, or confer any rights to you that are materially different from the terms and conditions of this Agreement, then you are not authorized to use the Software and you agree to remove it from your computer.