Database Resources License & Non-Disclosure Agreement

National Golf Foundation Database License and Non-Disclosure Agreement

1. Introduction
This National Golf Foundation Database License and Non-Disclosure Agreement (the "Agreement") is entered into by the National Golf Foundation ("NGF") and the NGF member or client (the "Receiving Party") who accepts this Agreement by mouse-clicking on the "I Accept" button below. This Agreement governs the use by the Receiving Party of the Proprietary NGF Information as defined below. Among the services NGF shall provide to the Receiving Party is access to NGF's compiled proprietary databases as further defined below containing data about various segments of the golf industry, and NGF-generated research about golf industry developments and trends ("Proprietary Information"). Such Proprietary Information may include data or research complied or created by third party contractors or consultants acting on NGF's behalf as well as third party data that NGF is authorized to re-publish or sell.

2. Purpose and Scope of Agreement
The Receiving Party acknowledges that its relationship with NGF is confidential and that any use of Proprietary Information by the Receiving Party shall be strictly subject to the terms and conditions of this Agreement. The Proprietary Information also includes any document, diskette, memory drive, tape, CD, DVD, or other tangible item that contains any Proprietary NGF Information, whether in printed, handwritten, coded, magnetic or other form and whether delivered by NGF to the Receiving Party or any copy thereof made or created by the Receiving Party.

3. NGF's License Grant and Restrictions
NGF hereby grants the Receiving Party during the term of this Agreement, and so long as the Receiving Party remains an NGF member or client in good standing, a limited, non-exclusive, non-assignable, non-sub-licensable, and revocable license to use such Proprietary NGF Information as NGF has determined to be available or accessible to the Receiving Party based on the Receiving Party's level of membership in NGF, or status as a NGF client. Subject to the foregoing, the type of Proprietary NGF Information that NGF may make available and accessible to the Receiving Party may include, but not be limited to, the following:
A. United States Golf Facility Database and any subset thereof. This Database consists of information about golf facilities and courses located within the fifty (50) United States.
B. International Golf Facility Database and any subset thereof. This Database consists of golf facilities located outside the fifty (50) United States.
C. Golf Business Database and any subset thereof. This Database includes, among other data sets, information about golf related businesses such as equipment manufacturers, wholesalers, and retailers, golf course architects, golf course builders, consultants, appraisers, golf course management companies, and golf course fertilizer, chemical, and maintenance equipment suppliers.
D. Golf Retail Database and any subset thereof. This Database contains information about physical retail stores and outlets that sell golf equipment, apparel and other golf merchandise.
E. Golf Media and Press Database and any subset thereof. This Database contains information about print and electronic media that cover the game of golf, including magazines, newspaper sport sections, golf commentators and columnists, and television networks.
Golf Construction Report and any subset thereof. This Report contains information about golf courses that are proposed, in planning, under construction or under reconstruction.
Golf Course Transaction Lead List and any subset thereof. This list contains information about golf facilities that have recently changed ownership.

The license granted in this paragraph permits the Receiving Party to use the Proprietary Information solely in the course of the Receiving Party's internal business operations, and not for any other purpose, including, but not limited to, (1) the public display of such Information, (2) the resale, redistribution, repurposing, or relicensing of the Information, (3) the creation and distribution to any third parties of any analyses, studies, research or reports based in whole or in part upon Proprietary Information without NGF's express written permission, which NGF may withhold in its sole and absolute discretion, and (4) the creation of any derivative works based in whole or in part on the Proprietary Information. For the purposes of clarification, the Receiving Party may not divulge any Proprietary Information or any information derived there from to any of the Receiving Party's third party consultants, distributors, vendors, or service providers engaged on its behalf without the express written approval of NGF, which NGF may withhold in its absolute discretion. In the event NGF permits any such third parties to access to the Proprietary Information, NGF shall require the third parties to enter into a separate agreement with NGF in which NGF shall determine the manner and means by which such third parties may access and use the Proprietary Information.

The Receiving Party's internal business operations for which Receiving Party may use the Proprietary Information pursuant to this license may include the Receiving Party's strategic planning and business development activities and shall include the use of the Proprietary Information to create any mailing and telemarketing lists for use in promoting the Receiving Party's products and services.

4. Receiving Party Non-Disclosure Obligations
The Receiving Party will (i) hold all Proprietary Information in its possession or control in strict confidence as a fiduciary of NGF, and will take all reasonable precautions to protect such Proprietary Information from unauthorized disclosure (including, without limitation, all precautions the Receiving Party employs with respect to Receiving Party's own confidential materials, but in all events not less than reasonable care), (ii) not divulge any Proprietary Information, or any information or content created by or for the Receiving Party that is derived from the Proprietary Information, to any third party not otherwise a parent or subsidiary of the Receiving Party, (iii) not make any use of any or all of the Proprietary Information except as expressly permitted in this Agreement; provided, however, that should the Receiving Party desire to use the Proprietary Information in the production or enhancement of any of the Receiving Party's products or services (a "Derivative Use"), the Receiving Party shall first notify NGF of such intended use, and NGF shall determine whether to permit such Derivative Use subject to any further terms and conditions as NGF may determine in its sole discretion. The Receiving Party shall provide NGF with prompt written notice if the Receiving Party is served with a subpoena, discovery demand, or other compulsory process that would obligate the Receiving Party to produce any of the Proprietary Information. The Receiving Party shall provide such written notice to NGF within sufficient time to enable NGF, in its discretion, to seek to quash or limit the subpoena or other demand, or seek an appropriate protective order, and the Receiving Party shall cooperate on reasonable terms and conditions with NGF in any such efforts.

5. NGF's Ownership Rights in the Proprietary Information
All Proprietary Information is the sole and exclusive property of NGF. The Receiving Party acknowledges and agrees that NGF claims all intellectual property rights in or to the Proprietary Information, including, but not limited to, any patent, copyright, trademarks, or trade secret rights. The Receiving Party shall not contest NGF's ownership claims in the Proprietary NGF Information, nor assist others in doing so. The Receiving Party shall cooperate with NGF on reasonable terms and condition in any efforts by NGF to register, protect, defend, or enforce NGF's intellectual property rights, or ownership interests, in the Proprietary Information. Other than the license expressly granted by NGF to Receiving Party herein, this Agreement shall not be interpreted or construed as granting any further license or other right in the Proprietary Information under any NGF patent, copyright, trademark, trade secret or other proprietary or ownership right.

6. Receiving Party's Representations and Warranties
The Receiving Party represents and warrants to NGF that (1) the person accepting this Agreement on the Receiving Party's behalf has all right, power and authority to do so and bind the Receiving Party to the terms and conditions of this Agreement, (2) the Receiving Party's performance of its duties and obligations under this Agreement will not violate or breach any other agreement or legal obligation to which the Receiving Party is bound, (3) the Receiving Party will at all times use the Proprietary Information licensed by NGF to the Receiving Party on the terms set froth in this Agreement and in a manner that complies with all statutes, regulations, ordinances or other laws applicable to the Receiving Party or to the Proprietary Information, and (4) the Receiving Party will not remove or alter any intellectual property notices that may be displayed on or contained in, the Proprietary Information, including any copyright or trademark registration notices or symbols, whether of NGF or of any third party.

7. NGF's Disclaimers
NGF disclaims any express or implied representations or warranties concerning the Proprietary Information, including, but not limited to, any warranties that the Proprietary Information is accurate or timely, or that the Proprietary Information can be relied upon as a basis for any business decisions by the Receiving Party, any of its affiliates, subsidiaries, or any third party. NGF further disclaims any implied warranties of merchantability or fitness for a particular purpose relating to the Proprietary Information. NGF is providing the Receiving Party with access to the Proprietary Information in an "as is" condition, and the Receiving Party's use of the Proprietary Information shall be at the Receiving Party's sole risk.

8. Limitation of NGF Liability
NGF shall not be liable to the Receiving Party for any damages that may be attributable to the Receiving Party's use of the Proprietary Information, including, but not limited to, any punitive, special, exemplary, consequential, indirect, or incidental damages, or fines or penalties, whether or not NGF has prior notice of the possibility of such damages, fines or penalties.

9. Injunctive Relief
The Receiving Party acknowledges and agrees that due to the unique nature of the Proprietary Information, NGF will not have any adequate remedy at law for any breach by Receiving Party of its obligations hereunder, that any such breach may allow the Receiving Party or third parties to unfairly compete with NGF resulting in irreparable harm to the NGF, Receiving Party therefore agrees that in the event of Receiving Party's actual or threatened breach of this Agreement, the NGF shall be entitled (in addition to any and all other remedies available to it under the circumstances) to secure temporary, preliminary or permanent injunctive relief, specific performance and other equitable remedies without proof of monetary damages or the inadequacy of any remedy at law, and without the necessity of posting a bond or other security in the event NGF secures temporary or preliminary injunctive relief from a court of competent jurisdiction.

10. Receiving Party Indemnification of NGF
The Receiving Party shall defend, indemnify, and hold harmless the NGF from any loss, damages of any type or character, fines, penalties, judgments, expenses, or other harm or injury, including, without limitation, reasonable attorney's fees and litigation or arbitration costs and expenses at trial or on appeal, in connection with any breach or enforcement of the Receiving Party's obligations under this Agreement, including Receiving Party's unauthorized use or release of any Proprietary Information. The NGF will notify the Receiving Party in writing promptly upon the occurrence of any such unauthorized release or other breach of which it is aware, or NGF's receipt of any demand or claim subject to Receiving Party's obligations to defend, indemnify or hold harmless NGF as provided herein. In the event of a claim or demand subject to this Section, the Receiving Party shall have the right a duty to appoint qualified and competent legal counsel at the Receiving Party's sole cost and expense to defend or settle any claim or demand against NGF; provided that NGF shall have the right at its expense to engage independent legal counsel to monitor the defense or settlement of any claim. The Receiving Party shall have the right to settle any claim or demand at its sole cost and expense; provided that NGF shall have the right of prior written approval of any settlement that obligates NGF to pay any monies or take, or not take any actions or assume, or not assume, any duties or obligations, which approval shall not be unreasonably withheld, conditioned or delayed.

11. Liquidated Damages
In the event the Receiving Party breaches this Agreement by using the Proprietary Information for uses not permitted under this Agreement, or removes any intellectual property notices from the Proprietary Information, NGF's express written approval, the Receiving Party expressly agrees that NGF's damages in the event of such a breach will be difficult to quantify. Therefore, in the event of such a breach, in addition to immediately commencing commercially reasonable efforts to cure any breach, the Receiving Party shall pay NGF as liquidated damages, and not as penalty, the amount of $5,000.00 per occurrence, which liquidated damages shall be in addition to, and not in lieu of, any equitable relief to which NGF may be entitled by reason of the Receiving Party's breach of this Agreement.

12. Severability
If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.

13. Attorneys Fees
In the event NGF determines to file suit or initiate arbitration proceedings against the Receiving Party to enforce or interpret this Agreement, and the NGF is the prevailing party in any such suit or proceeding, the court or arbitration panel shall award to NGF, in addition to any other relief that may be appropriate under the circumstances, NGF's reasonable attorneys fees and litigation or arbitration costs or expenses in the prosecution of such suit or proceeding.

14. Non-Waiver
No waiver or modification of this Agreement will be binding upon either party unless made in writing and signed by a duly authorized representative of such party and no failure or delay in enforcing any right will be deemed a waiver of such right. This Agreement may not be amended except by a writing signed by both parties.

15. Term and Termination
The Term of this Agreement shall commence upon the Receiving Party's acceptance by clicking the "I Accept" button below, and shall continue until Receiving Party is no longer a member or client of NGF, or upon NGF's written or electronic notice to Receiving Party terminating this Agreement as of the date set forth in the communication. In the event of the termination of this Agreement for any reason, the Receiving Party shall not have any further right to receive any additional Proprietary Information as of the effective date of termination. Notwithstanding the foregoing, the Receiving Party may continue to use and possess the Proprietary Information in its possession or control as of the effective date of termination of this Agreement, subject to all restrictions and limitations set forth in this Agreement, which shall survive the termination of this Agreement.

16. Choice of Law and Venue
This Agreement shall be construed under the laws of the State of Florida, without regard to any choice of law rules. In the event a party files suit to enforce or interpret this Agreement, any such suit shall be brought in the State or Federal Courts sitting in Palm Beach County, Florida, and the parties each waive any objections to the personal jurisdiction of such courts.

17. Entire Agreement
The Agreement constitutes the entire Agreement between NGF and the Receiving Party relating to the subject matter contained herein, and supersedes any prior agreements or understandings, representations or warranties of the Parties on such matters.

18. Warranty of Authority
The Receiving Party represents and warrants to NGF that the person who accepts this Agreement on behalf of Receiving Party by clicking the "I Accept" button below is an officer that has full and complete authority to bind Receiving Party to the terms of this Agreement.

19. Survival
Upon the termination of this Agreement for any reason, NGF shall not thereafter provide the Receiving Party with any further access to any Proprietary NGF Information; provided, however, that the provisions of this Agreement shall survive and apply to the Receiving Party's use of any Proprietary NGF Information that remains in the Receiving Party's possession or control after the effective date of termination.

20. Non-Assignability
The Receiving Party may not assign this Agreement without the express written consent of NGF, which NGF may withhold in its absolute discretion. Any attempted assignment by Receiving Party in contravention of this Section 14 shall be null and void and not have any legal force or effect.

The duly authorized representatives of the Parties have executed this Agreement, whereupon it enters into full force and effect in accordance with its terms.