Depending on whether we provide you with products or services, our terms below set out which company provides the relevant products or services to you.
2. What are cookies?
A cookie is a small simple file that is sent along with pages of this website and stored by your browser on the hard drive of your computer or another device. The information stored therein may be returned to our servers or to the servers of the relevant third parties during a subsequent visit.
3. What are scripts?
A script is a piece of programme code that is used to make our website function properly and interactively. This code is executed on our server or on your device.
4. What is a web beacon?
A web beacon (or a pixel tag) is a small, invisible piece of text or image on a website that is used to monitor traffic on a website. In order to do this, various data about you is stored using web beacons.
5.1 Technical or functional cookies
Some cookies ensure that certain parts of the website work properly and that your user preferences remain known. By placing functional cookies, we make it easier for you to visit our website. This way, you do not need to repeatedly enter the same information when visiting our website and, for example, the items remain in your shopping cart until you have paid. We may place these cookies without your consent.
5.2 Statistics cookies
We use statistics cookies to optimize the website experience for our users. With these statistics cookies we get insights in the usage of our website. We ask your permission to place statistics cookies.
5.3 Marketing/Tracking cookies
Marketing/Tracking cookies are cookies or any other form of local storage, used to create user profiles to display advertising or to track the user on this website or across several websites for similar marketing purposes.
5.4 Social media buttons
On our website we have included buttons for Facebook, Twitter, LinkedIn and Instagram to promote webpages (e.g. “like”, “pin”) or share (e.g. “tweet”) on social networks like Facebook, Twitter, LinkedIn and Instagram. These buttons work using pieces of code coming from Facebook, Twitter, LinkedIn and Instagram themselves. This code places cookies. These social media buttons also can store and process certain information, so a personalized advertisement can be shown to you.
Please read the privacy statement of these social networks (which can change regularly) to read what they do with your (personal) data which they process using these cookies. The data that is retrieved is anonymized as much as possible. Facebook, Twitter, LinkedIn and Instagram are located in the United States.
6. Placed cookies
Marketing/Tracking, Functional, Statistics
Purpose pending investigation
Purpose pending investigation
7. Your rights with respect to personal data
You have the following rights with respect to your personal data:
You have the right to know why your personal data is needed, what will happen to it, and how long it will be retained for.
Right of access: You have the right to access your personal data that is known to us.
Right to rectification: you have the right to supplement, correct, have deleted or blocked your personal data whenever you wish.
If you give us your consent to process your data, you have the right to revoke that consent and to have your personal data deleted.
Right to transfer your data: you have the right to request all your personal data from the controller and transfer it in its entirety to another controller.
Right to object: you may object to the processing of your data. We comply with this, unless there are justified grounds for processing.
8. Enabling/disabling and deleting cookies
You can use your internet browser to automatically or manually delete cookies. You can also specify that certain cookies may not be placed. Another option is to change the settings of your internet browser so that you receive a message each time a cookie is placed. For more information about these options, please refer to the instructions in the Help section of your browser.
Please note that our website may not work properly if all cookies are disabled. If you do delete the cookies in your browser, they will be placed again after your consent when you visit our websites again.
9. Contact details
Optimum Golf Technologies T/A Foresight Sports Europe
Unit 16, The Pines Business Park, Broad Street, Guildford, Surrey, GU3 3BH, UK
This privacy notice applies to all information collected through our Services (which, as described above, includes our Website), as well as any related services, sales, marketing or events.
Please read this privacy notice carefully as it will help you understand what we do with the information that we collect.
1. WHAT INFORMATION DO WE COLLECT?
Information automatically collected
In Short: Some information — such as your Internet Protocol (IP) address and/or browser and device characteristics — is collected automatically when you visit our Website.
If you are purchasing goods or services online from us then we collection additional information, such as but not limited to,
Name, Address, Email Address, Phone Number, some basic financial information such as authorisation number or finance reference number.
We automatically collect certain information when you visit, use or navigate the Website. This information does not reveal your specific identity (like your name or contact information) but may include device and usage information, such as your IP address, browser and device characteristics, operating system, language preferences, referring URLs, device name, country, location, information about who and when you use our Website and other technical information. This information is primarily needed to maintain the security and operation of our Website, and for our internal analytics and reporting purposes.
Like many businesses, we also collect information through cookies and similar technologies.
The information we collect includes:
Log and Usage Data. Log and usage data is service-related, diagnostic usage and performance information our servers automatically collect when you access or use our Website and which we record in log files. Depending on how you interact with us, this log data may include your IP address, device information, browser type and settings and information about your activity in the Website (such as the date/time stamps associated with your usage, pages and files viewed, searches and other actions you take such as which features you use), device event information (such as system activity, error reports (sometimes called ‘crash dumps’) and hardware settings).
Device Data. We collect device data such as information about your computer, phone, tablet or other device you use to access the Website. Depending on the device used, this device data may include information such as your IP address (or proxy server), device application identification numbers, location, browser type, hardware model Internet service provider and/or mobile carrier, operating system configuration information.
2. HOW DO WE USE YOUR INFORMATION?
In Short: We process your information for purposes based on legitimate business interests, the fulfilment of our contract with you, compliance with our legal obligations, and/or your consent.
We use personal information collected via our Website for a variety of business purposes described below. We process your personal information for these purposes in reliance on our legitimate business interests, in order to enter into or perform a contract with you, with your consent, and/or for compliance with our legal obligations. We indicate the specific processing grounds we rely on next to each purpose listed below.
We use the information we collect or receive:
To send administrative information to you. We may use your personal information to send you a product, service and new feature information and/or information about changes to our terms, conditions, and policies.
To protect our Services. We may use your information as part of our efforts to keep our Website safe and secure (for example, for fraud monitoring and prevention).
To enforce our terms, conditions and policies for business purposes, to comply with legal and regulatory requirements or in connection with our contract.
To respond to legal requests and prevent harm. If we receive a subpoena or other legal request, we may need to inspect the data we hold to determine how to respond.
3. WILL YOUR INFORMATION BE SHARED WITH ANYONE?
In Short: We only share information with your consent, to comply with laws, to provide you with services, to protect your rights, or to fulfil business obligations.
We may process or share your data that we hold based on the following legal basis:
Consent: We may process your data if you have given us specific consent to use your personal information in a specific purpose.
Legitimate Interests: We may process your data when it is reasonably necessary to achieve our legitimate business interests.
Performance of a Contract: Where we have entered into a contract with you, we may process your personal information to fulfill the terms of our contract.
Legal Obligations: We may disclose your information where we are legally required to do so in order to comply with applicable law, governmental requests, a judicial proceeding, court order, or legal process, such as in response to a court order or a subpoena (including in response to public authorities to meet national security or law enforcement requirements).
Vital Interests: We may disclose your information where we believe it is necessary to investigate, prevent, or take action regarding potential violations of our policies, suspected fraud, situations involving potential threats to the safety of any person and illegal activities, or as evidence in litigation in which we are involved.
More specifically, we may need to process your data or share your personal information in the following situations:
Business Transfers. We may share or transfer your information in connection with, or during negotiations of, any merger, sale of company assets, financing, or acquisition of all or a portion of our business to another company.
Business Partners. We may share your information with our business partners to offer you certain products, services or promotions.
5. DO WE USE GOOGLE MAPS?
In Short: Yes, we use Google Maps for the purpose of providing better service.
6. IS YOUR INFORMATION TRANSFERRED INTERNATIONALLY?
In Short: We may transfer, store, and process your information in countries other than your own.
Our servers are located in. If you are accessing our Website from outside, please be aware that your information may be transferred to, stored, and processed by us in our facilities and by those third parties with whom we may share your personal information (see “WILL YOUR INFORMATION BE SHARED WITH ANYONE?” above), in and other countries.
If you are a resident in the European Economic Area, then these countries may not necessarily have data protection laws or other similar laws as comprehensive as those in your country. We will however take all necessary measures to protect your personal information in accordance with this privacy notice and applicable law.
7. HOW LONG DO WE KEEP YOUR INFORMATION?
In Short: We keep your information for as long as necessary to fulfill the purposes outlined in this privacy notice unless otherwise required by law.
We will only keep your personal information for as long as it is necessary for the purposes set out in this privacy notice, unless a longer retention period is required or permitted by law (such as tax, accounting or other legal requirements).
When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize such information, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
8. HOW DO WE KEEP YOUR INFORMATION SAFE?
In Short: We aim to protect your personal information through a system of organisational and technical security measures.
We have implemented appropriate technical and organisational security measures designed to protect the security of any personal information we process. However, despite our safeguards and efforts to secure your information, no electronic transmission over the Internet or information storage technology can be guaranteed to be 100% secure, so we cannot promise or guarantee that hackers, cybercriminals, or other unauthorized third parties will not be able to defeat our security, and improperly collect, access, steal, or modify your information. Although we will do our best to protect your personal information, transmission of personal information to and from our Website is at your own risk. You should only access the Website within a secure environment.
9. DO WE COLLECT INFORMATION FROM MINORS?
In Short: We do not knowingly collect data from or market to children under 18 years of age.
We do not knowingly solicit data from or market to children under 18 years of age. By using the Website, you represent that you are at least 18 or that you are the parent or guardian of such a minor and consent to such minor dependent’s use of the Website. If we learn that personal information from users less than 18 years of age has been collected, we will deactivate the account and take reasonable measures to promptly delete such data from our records. If you become aware of any data we may have collected from children under age 18, please contact us at firstname.lastname@example.org
10. WHAT ARE YOUR PRIVACY RIGHTS?
In Short: You may review, change, or terminate your account at any time.
Cookies and similar technologies: Most Web browsers are set to accept cookies by default. If you prefer, you can usually choose to set your browser to remove cookies and to reject cookies. If you choose to remove cookies or reject cookies, this could affect certain features or services of our Website.
11. CONTROLS FOR DO-NOT-TRACK FEATURES
Most web browsers and some mobile operating systems and mobile applications include a Do-Not-Track (“DNT”) feature or setting you can activate to signal your privacy preference not to have data about your online browsing activities monitored and collected. At this stage, no uniform technology standard for recognising and implementing DNT signals has been finalised. As such, we do not currently respond to DNT browser signals or any other mechanism that automatically communicates your choice not to be tracked online. If a standard for online tracking is adopted that we must follow in the future, we will inform you about that practice in a revised version of this privacy notice.
12. DO WE MAKE UPDATES TO THIS NOTICE?
In Short: Yes, we will update this notice as necessary to stay compliant with relevant laws.
We may update this privacy notice from time to time. The updated version will be indicated by an updated “Revised” date and the updated version will be effective as soon as it is accessible. If we make material changes to this privacy notice, we may notify you either by prominently posting a notice of such changes or by directly sending you a notification. We encourage you to review this privacy notice frequently to be informed of how we are protecting your information.
13. HOW CAN YOU CONTACT US ABOUT THIS NOTICE?
If you have questions or comments about this notice, you may email us at email@example.com or by post to:
Unit 16, The Pines Business Park, Broad Street, Guildford, Surrey, GU3 3BH, UK
Foresight sports trademark disclaimer.
Product names, logos, brands, and other trademarks featured or referred to within the foresightsports.Eu website are the property of their respective trademark holders.
Regarding golf courses.
Use of any trade names, trademarks and images are not meant to suggest endorsement, affiliation, sponsorship or approval of any golf course owner, but merely for purposes of comparing virtual courses to the courses replicated for simulated game play.
Orders accepted by the Company cannot be amended or cancelled, or shipments deferred, by the Customer, except with the written consent of the Company and upon terms that will compensate the Company against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of the amendment, cancellation or deferral on a full indemnity basis, and including a re-stocking fee where requested by the Company.
The Company shall be entitled to cancel the Order at any time by giving written notice to the Customer. If the Company exercises its right to cancel it shall have no liability in respect of the Order or in respect of any damage whatever arising from the cancellation other than to return any deposit paid . If the Customer is a consumer, the terms of the Contract will not affect any rights which the Customer may have under any Act of Parliament and which cannot be excluded by agreement. Under The Consumer Contracts Regulations 2013 a consumer has the right to cancel this contract within 14 days without giving any reason:
(i) from the day of the conclusion of the contract, in the case of a service or supply of digital content, or
(ii) from the day on which the Customer acquires or a third party other than the carrier and indicated by the Customer acquires physical possession of the goods, in the case of a sales contract, or
(iii) from the day on which the Customer acquires or a third party other than the carrier and indicated by the Customer acquires physical possession of the last good, in the case of a contract relating to multiple goods ordered by the consumer in one order and delivered separately, or
(iv) from the day on which the Customer acquires or a third party other than the carrier and indicated by the Customer acquires physical possession of the last lot or piece, in the case of a contract relating to the delivery of a good consisting of multiple lots or pieces, or
(v) from the day on which the Customer acquires or a third party other than the carrier and indicated by the Customer acquires physical possession of the first good, in the case of a contract for regular delivery of goods during a defined period of time.
To exercise the right to cancel the Customer must inform the Company of the decision to cancel this contract by a clear statement in writing. To meet the cancellation deadline it is sufficient to send the written cancellation communication before the cancellation period has expired. In the event of a cancellation under this clause 2.3 the Company will reimburse all payments received from the Customer including the costs of delivery (except for the supplementary costs arising if the Customer chose a type of delivery other than the least expensive type of standard delivery offered by the Company), and subject to a deduction from the reimbursement for loss in value of any Product(s) supplied if the loss is the result of unnecessary handling or use by the Customer. The Company will make the reimbursement without undue delay, and not later than:
(a) 14 days after the day the Company receives back any goods supplied, or
(b) (if earlier) 14 days after the day the Customer provides evidence that the Customer has returned the goods, or
(c) if there were no goods supplied 14 days after the day on which the Company was informed about the Customer’s decision to cancel this contract.
The Company will make the reimbursement using the same means of payment as the Customer used for the initial transaction, unless expressly agreed otherwise, and in any event the Customer will not incur any fees as a result of the reimbursement. In the case of the supply of Product(s) the Customer shall send back the goods or hand them over to the Company at Unit 16 The Pines Business Park, Guildford, Surrey, GU3 3BH for the attention of the Operations Director, without undue delay and in any event not later than 14 days from the day on which the Customer communicates the Customer’s cancellation of this contract to the Company. The deadline is met if the Customer sends back the goods before the period of 14 days has expired. The Customer will bear the costs of returning the goods. The Customer is only liable for any diminished value of the Product(s) resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the Product(s). In the case of a service if the Customer requested to begin the performance of the services during the cancellation period the Customer will pay the Company an amount which is in proportion to what has been performed until the Customer communicated the written cancellation in comparison with the full coverage of the contract. For any complaint in relation to this clause and consumer rights the Customer should contact the Operations Director at the Company.
1.1 These terms and conditions, the End User Licence Agreement EULA (where applicable (see clause 1.5)), the Order and the relevant sales invoice (together “the Contract”) shall constitute the entire agreement between the customer named on the Order (the “Customer”) and OPTIMUM GOLF TECHNOLOGIES LIMITED trading as OPTIMUM GOLF TECHNOLOGIES, FORESIGHT SPORTS UK, FORESIGHT SPORTS EUROPE a company registered in England and Wales with registration no. 7471211 (the “Company”) relating to the sale and purchase of the products and services that are the subject of the Contract and detailed on the Order (the “Product(s) and/or Services”).
1.2 Notwithstanding any other documentation between the parties, all orders for Product(s) and Services shall be deemed to be an offer by the Customer to purchase Product(s) and Services pursuant to the Order and the Company’s acceptance of the Order is expressly made conditional on the Customer’s acceptance of these terms and conditions which shall prevail over any other document that purports to exclude or surpass them.
1.3 The Company is under a legal duty to supply goods that are in conformity with the Contract.
1.4 In accordance with clause 16.3, the Contract may only be varied with the express written consent by an authorised representative of the Company referencing these terms and conditions.
1.5 Where software is used or purchased the use of the software shall also be governed by an End User Licence Agreement (EULA) the latest copy of which is available on request or via the relevant Product website.
- Amendments to Order and Cancellation
2.1 Save for clause 2.3, Orders accepted by the Company cannot be amended or cancelled, or shipments deferred, by the Customer, except with the prior written consent of the Company and upon terms that will reasonably compensate the Company against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of the amendment, cancellation or deferral on a full indemnity basis, and including a re-stocking fee where reasonably requested by the Company.
2.2 The Company shall be entitled to cancel the Order at any time by giving written notice to the Customer. If the Company exercises its right to cancel it shall have no liability in respect of the Order or in respect of any damage whatever arising from the cancellation other than to return any deposit paid in accordance with clause 3.2 minus any reasonably incurred expenses incurred by the Company.
2.3 If the Customer is a consumer, the terms of the Contract will not affect any rights which the Customer may have under any Act of Parliament which cannot be excluded by agreement. Under The Consumer Contracts Regulations 2013 and subject to clause 2.9
a consumer has the right to cancel this contract within 14 days without giving any reason:
(i) from the day of the conclusion of the contract, in the case of a service or supply of digital content, or
(ii) from the day on which the Customer acquires or a third party other than the carrier and indicated by the Customer acquires physical possession of the Product(s), in the case of a sales contract, or
(iii) from the day on which the Customer acquires or a third party other than the carrier and indicated by the Customer acquires physical possession of the last good, in the case of a contract relating to multiple Product(s) ordered by the consumer in one order and delivered separately, or
(iv) from the day on which the Customer acquires or a third party other than the carrier and indicated by the Customer acquires physical possession of the last lot or piece, in the case of a contract relating to the delivery of a good consisting of multiple lots or pieces, or
(v) from the day on which the Customer acquires or a third party other than the carrier and indicated by the Customer acquires physical possession of the first good, in the case of a contract for regular delivery of Product(s) during a defined period of time.
2.4 To exercise the right to cancel the Customer must inform the Company of the decision to cancel this contract by a clear statement in writing. To meet the cancellation deadline, it is sufficient to send the written cancellation communication before the cancellation period has expired. In the event of a cancellation under this clause 2.4 the Company will reimburse all payments received from the Customer including the costs of delivery (except for the supplementary costs arising if the Customer chose a type of delivery other than the least expensive type of standard delivery offered by the Company), and subject to a deduction from the reimbursement for loss in value of any Product(s) supplied if the loss is the result of unnecessary handling, loss, damage or use by the Customer. The Company will make the reimbursement without undue delay, and not later than:
- (i) 14 days after the day the Company receives back all the original Product(s), packaging and components listed on the sales order and in the same condition they were supplied in, or
- (ii) (if earlier) 14 days after the day the Customer provides evidence that the Customer has returned all the Product(s) being a valid proof of delivery note signed by the Company’s Product(s) receiving team, or
(iii) if there were no Product(s) supplied 14 days after the day on which the Company was informed about the Customer’s decision to cancel this contract.
2.5 The Company will make the reimbursement using the same means of payment as the Customer used for the initial transaction, unless expressly agreed otherwise, and in any event the Customer will not incur any fees as a result of the reimbursement save for any foreign exchange charges.
2.6 In the case of the supply of Product(s) the Customer shall send back the Product(s) or hand them over to the Company at Unit 17 The Pines Business Park, Guildford, Surrey, GU3 3BH for the attention of the Operations Director, without undue delay and in any event not later than 14 days from the day on which the Customer communicates the Customer’s cancellation of this Contract to the Company. The deadline is met if the Customer sends back the Product(s) before the period of 14 days has expired.
2.7 The Customer will bear the costs of returning the Product(s).
2.8 In the case of a Service, including but not limited to the installation of a simulator, the Company shall further invoice or deduct from any refund an amount for the supply of materials, works completed and period for which the Services were supplied, ending with the time when the Customer advised of their intention to cancel. The amount will be in proportion to what has been supplied, in comparison with the full coverage of the Contract.
2.9 When a Customer who is a consumer doesn’t have the right to change their mind under clause 2.3. The Customer does not have the right to change their mind in respect of:
(a) digital products after the Customer has started to download or stream these;
(b) Services once these have been completed, even if the cancellation period is still running;
(c) sealed audio or sealed video recordings or sealed computer software, once these Product(s) are unsealed after you receive them; and
(d) any Product(s) which become mixed inseparably with other items after their delivery.
- Price and Payment
3.1 The Company sells the Product(s) and Services at the Price set out on the Order (the ”Price”) which unless otherwise stated by the Company is inclusive of all UK import duties and import costs. The Price excludes VAT which shall be applied where applicable and calculated in accordance with the prevailing rate as at the date of the invoice for the Product(s) and Services rendered by the Company. Full payment (cleared funds) is required to initiate an order except in the case of a full simulator order which shall be in accordance with clause 3.2 below. The Customer is responsible for any local duties and taxes where the delivery location is outside of the UK.
3.2 For full simulator orders and orders that require manufacture or installation, a non-refundable deposit of 50% of the Price (plus VAT where applicable) is due from the Customer at the time the Order is placed. Notwithstanding any delays caused by either party, where the Product(s) and Services include installation by the Company the remaining 50% of the Price is due and payable no later than 10 working days prior to the original, confirmed installation date as notified by the Company. Where the Product(s) are not installed by the Company the balance of the Price (50%) is payable prior to shipment to or collection by or on behalf of the Customer.
3.3 After receipt of the Order and at any time prior to delivery, the Company reserves the right to unilaterally revise the Price in the event of any change in its costs, or the prevailing conditions, or the Customer requesting amendments to the Order once this has been agreed. In such circumstances the Company will notify the Customer in writing within 7 days of the determination of the revised Price and the Customer may then cancel the Order in writing to the Company within 7 days of receipt of the revised Price, unless in the meantime the Customer accepts the Order by allowing delivery of the same.
3.4 Where the Company provides installation services the Company reserves the right to charge the Customer additional sums in relation to any costs and inconvenience caused by matters beyond the control of the Company, including but not limited to agreed installation dates being changed by the Customer or their representatives, delays or extra works caused by a change in design, the site not being ready on the agreed date in accordance with the requirements of the Company, and for delays and extra works carried out by the Company pursuant to matters that arise during the installation.
3.5 The Customer may not withhold payment of any invoice or other amount due to the Company by reason of any right of set-off or counterclaim which the Customer may have or allege to have against the Company.
- Delivery and Risk
4.1 Unless otherwise stated on the order form or invoice the Price includes all freight, insurance and other expenses incurred in connection with the delivery of the Product(s) and Services by the Company or its nominated agent. The time of delivery will be at the Company’s discretion unless other arrangements are made with the Customer and will be notified to the Customer prior to delivery. Delivery is conditional upon payment of the Price in accordance with clause 3.2. The Customer shall make all necessary arrangements to receive the Product(s) and Services at the time specified by the Company and unless otherwise agreed in the Order the Customer is responsible for the unloading of the Product(s) and moving them to the required position(s) on site. For orders that require installation, the Customer shall ensure that it has made all arrangements necessary to conform with the Pre-Installation Checklist (which should be completed and returned as early as possible in order that an installation date can be scheduled) or other documents as required by the Company. The Customer remains liable for all local taxes and duties imposed, and the Company cannot be held liable, nor incur additional cost, should the Product(s) incur demurrage or be returned to source as a result of late or non-payment by the Customer.
4.2 The time of delivery and/or installation is estimated only and is not guaranteed by the Company due to the Company’s importation of the Product(s), possible supply chain delays and the resultant lead times. The Company shall have no liability to the Customer for any late delivery or installation. The Company shall inform the Customer as soon as practicable if an Order will be delayed and provide the Customer with a new estimated delivery and/or installation date.
4.3 Delays in the delivery of an Order shall not entitle the Customer to:
4.3.1 refuse to take delivery of the Order;
4.3.2 terminate this Contract; or
4.3.3 demand a reduction in the price or request a refund.
4.4 The Company shall have no liability to the Customer for the Customer’s failure to take delivery of the Product(s) and/or Services for any reason unless the Customer has informed the Company in writing that the Product(s) and/or Services are defective, and after fair and reasonable assessment, the Company agrees. Reasonable access to the Product/s and/or Services to perform the assessment cannot be unreasonably withheld by the Customer. The Company shall at its sole discretion request that the Customer stores the Product(s) at the Customer’s risk until collection can be made by the Company.
4.5 For simulator sales or sales of bulky items the Customer shall notify the Company not less than 14 days prior to dispatch for installation of any requirements or restrictions affecting delivery of the Product(s) and of any health and safety and/or working practices or procedures that must be adopted by the Company. The Company reserves the right to make an additional charge if any such requirements, restrictions, practices or procedures increase its costs of delivery or installation or any other of the Product(s) and Services.
4.6 Subject to 8.5, the Customer assumes all risk and liability for any self-installation, labour or assistance provided to assist the Company’s technician(s) during any installation process. The additional personnel must be covered by the Customer’s insurance policy which should provide adequate cover in relation to and including but not limited to damage to property, accidents, injury, death, etc. howsoever arising. Personnel will be provided at the Customer’s own risk, cost and expense and must follow the lawful and reasonable instructions of the Company’s technicians at all times. The Company will not be liable for any delays, loss, damage or costs arising from the errors, acts and/or omissions by the Customer or the Customer’s personnel, and any costs arising from such actions will be fully recoverable by the Company.
4.7 Where the Company or its agents deliver the Product(s), risk shall pass to the Customer when the delivery vehicle enters onto the Customer’s property, or, if it is not possible for the delivery vehicle to enter the Customer’s property, when the delivery vehicle parks for the Product(s) to be unloaded onto the Customer’s property. The Customer shall insure accordingly.
4.8 Where the Customer collects the Product(s) from the Company or arranges collection via a third party the risk shall pass to the Customer at the point the Customer or third party take possession of the Product(s), or immediately prior to the Product(s) being loaded onto or into the collection vehicle, whichever is the sooner.
4.9 The Customer will be liable for any costs or fees associated with missed collections.
- Inspection and Acceptance
5.1 Receipt by the Company of the Order and or an initial deposit payment shall be conclusive evidence of the sale. All sales are final and save for defective Product(s) which shall be dealt with in accordance with clauses 4.4 and 5.2, no returns will be accepted without prior written authorisation from the Company.
5.2 If you are not a Consumer you must examine the Product(s) immediately upon receipt of delivery and if the Product(s) are being installed by the Company, again immediately upon installation and in either case within 5 days thereafter notify the Company in writing of any damage or defects. At the Company’s election it may inspect the alleged faulty Product(s) at the installation site or require the alleged faulty Product(s) be returned to the Company (or such other place as it shall reasonably direct) for inspection. The Customer will return any allegedly faulty Product(s) within 14 days of such request. The Customer will pay the costs and expenses of any such return and will pay to the Company the reasonable costs of any tests carried out on the Product(s) (such cost to be notified by the Company) together with the costs of return thereof to the Customer. The Company will reimburse such costs and expenses only to the extent they are reasonable and where the defect is clearly the liability of the Company.
5.3 In the absence of any notice of defect pursuant to clause 5.2, the Customer will be deemed to have examined and accepted the Product(s) in full. Where the Contract is for the sale of two or more Products comprising a single unit, then, in accepting any of the Products included in the one unit, the Customer (unless expressly stated to the contrary) is deemed to have accepted all of the Products making up that unit.
5.4 If the Customer is a consumer the Company is under a legal duty to supply Products (goods and services that are in conformity with this Contract. The onus lies on the consumer to prove that the goods do not conform to the contract if they are exercising their short term right to reject, or if more than six months have passed, the consumer will need to prove that the defect was present at the time of delivery. See the box below for a summary of your key legal rights in relation to the Products. Nothing in these terms will affect your legal rights. The Customer will pay the costs of the Product(s) return.
Summary of your key legal rights if you are a Consumer:
This is a summary of your key legal rights. These are subject to certain exceptions. For detailed information please visit the Citizens Advice website www.adviceguide.org.uk or call 03454 04 05 06.
If your product is goods, the Consumer Rights Act 2015 says goods must be as described, fit for purpose and of satisfactory quality. During the expected lifespan of your product your legal rights entitle you to the following:
a) Up to 30 days: if your goods are faulty, then you can get an immediate refund.
b) Up to six months: if your goods are faulty and can’t be repaired or replaced, then you’re entitled to a full refund, in most cases.
c) Up to six years: if your goods do not last a reasonable length of time you may be entitled to some money back.
If your product is services, the Consumer Rights Act 2015 says:
a) You can ask us to repeat or fix a service if it’s not carried out with reasonable care and skill, or get some money back from the service cost if we can’t fix it.
b) If you haven’t agreed a price beforehand, what you’re asked to pay must be reasonable.
c) If you haven’t agreed a time beforehand, it must be carried out within a reasonable time.
- Training and Support
Unless otherwise stated by the Company and where provided, the provision of training may either be remote via the Support Desk or on-site immediately following an installation. It remains the Customer’s responsibility to ensure that the appropriate personnel are available at the time and place agreed for training. The level of technical support provided shall be in accordance with the Support Contract paid for by the Customer and relevant to the Customer’s country of location. Support Desk hours are weekdays between 9.00am to 5.00pm (UK time) and exclude UK national holidays. The provision of services beyond the free support offered under each respective Support Contract will be chargeable at the price/s quoted or as specified in the Support Contract or price lists, a copy of which is available on request. Increases may apply.
- Warranties, Liabilities and Remedies of the Customer
7.1 Subject to the provisions of the Contract and the Customer’s strict compliance with the Contract and guidance and instructions in any manual/s supplied with the Product/s (”the Manual”) and all other conditions confirmed in writing to the Customer from time to time, the Company warrants for a period of one year (unless otherwise expressly stated in clause 7.2, or in the Order or invoice for instance in relation to refurbished products product/s where a shorter warranty period and different terms may apply) from the date of shipping that the Product(s) will conform to the manufacturer’s specifications and warranties as at the date of the Order, or any specifications provided by the Customer and expressly agreed to in the Order by the Company. If during the one-year limited warranty period the Product is found by the Company to be defective, the Company will either repair the Product, replace the defective Product with a new Product, or exchange the Product with an equivalent Product. This limited warranty is available only to the original purchaser of the Product(s) (unless in the case of a simulator the Company carries out the de-installation and re-installation of the Product) and is expressly made in lieu of all other warranties, express or implied.
7.2 The warranty in section 7.1 does not apply to Product(s) that have been refurbished, sold as a certified pre-owned unit, or damaged by accident, shipment, handling or abuse, or alterations or repairs not performed by the Company including the addition of any software to the computer or the connection to any web or internet site or service not approved by the Company, or any defect arising from wilful damage or negligence of the Customer, or failure to follow the Company’s reasonable instructions for operation and maintenance including but not limited to the Manual. Consumable items, including but not limited to screens, tees, hitting mats, GC2 flash modules and projector bulbs and any other items that wear out due to normal usage are excluded from the warranty. Items not manufactured by the Company or Foresight Sports Inc, such as Puttview, Swing Catalyst, projectors and touchscreens, are covered by their respective manufacturer or supplier’s warranty. The Company will not warrant interruptions in the performance or operation of the software, or hardware due to acts of God (power failures, storms, etc.) or computer or software viruses. The Customer acknowledges that it is not possible to test computer software and hardware in all possible circumstances and that it is therefore not possible to produce software that is free from error in all respects. Similarly, the Company cannot warrant that any hardware recommended or sold will work with all future upgrades to the software.
7.3 To make a claim under the limited warranty provided in clause 7.1, the Customer must (1) notify the Company’s Technical Support Department in writing of the nature of the problem within the warranty period and obtain instructions for obtaining service, and (2) at the Company’s sole discretion make the defective Product(s) available for inspection by the Company in situ or deliver the defective Product(s) to the Company, to the address designated by the Company in packaging that will protect against further damage. At the Company’s option the Product(s) may be serviced at the Customer’s location or at a location designated by the Company.
7.4 The Company shall be under no liability under the warranty (or any other warranty condition or guarantee) if the Price has not been paid in full or if the Customer has opened, dismantled or tampered with the Product(s) without the authorisation of the Company.
8.1 This clause sets out the entire financial liability of the Company (including any liability for the acts or omissions of the Company’s respective employees, agents and sub-contractors) to the Customer in respect of any breach of the Contract; or any use made of the Product(s) (or of any product incorporating any of the Product) by the Customer; and in respect of any representation, statement, act or omission (including negligence) arising under or in connection with the Contract or the Product(s) and Services.
8.2 Subject to the remainder of this clause 8, the Company’s total liability in connection with the Contract and the Product(s) and Services as a result of injury or damage to property as a result of the Company’s negligence shall not exceed 200% of the Price. The Company’s total liability in connection with this Contract and the Product(s) and Services from any other cause shall not exceed the amounts paid by the Customer for the Product(s) and Services directly related to the damage.
8.3 Subject as expressly provided in these terms and conditions the Company disclaims all other warranties and conditions of any kind with respect to the Product(s) and Services, either express or implied, including without limitation, any implied warranties or conditions of merchantability and fitness for a particular purpose to the fullest extent permitted by the law.
8.4 The Company shall have no liability to the Customer or any other person, for special, indirect, incidental or consequential damages related to the Contract or the Product(s) and Services, including without limitation, damages due to loss of business, revenue, goodwill, data, programs or profits, regardless of the form of action, whether in contract, tort, or otherwise, and whether or not the Company is informed of the possibility thereof in advance.
8.5 Nothing in the Contract shall be construed as limiting the liability of the Company for death or personal injury arising from the Company’s direct negligence (as defined under the Unfair Contract Terms Act 1977), fraud or fraudulent misrepresentation, breach of the terms implied by s12 Sale of Goods Act 1979 or defective products under s2 Consumer Protection Act 1987.
- Assumption of Risk and Customer Liability
9.1 The use of the Product(s) and/or simulated golf equipment and all attendant activities, including but not limited to, swinging golf clubs and/or hitting golf balls outside or within an enclosed environment is a dangerous calculated risk activity which can result in serious permanent bodily injury or death to its participants or bystanders which the Company cannot entirely eliminate. The Customer understands that in the absence of any direct negligence or other breach of duty by the Company, the Customer, and/or any persons who the Customer permits to use the Product(s) does so entirely at their own risk and liability. Without prejudice to clause 8.5 the Customer assumes all risks of any nature for any death, injury or other damages to the Customer or third party, the Customer’s property and the property of others, foreseeable or not, which may in any way arise, directly or indirectly, out of the sale and/or use of the Product(s), and from the actions – specifically including any negligent acts or omissions – of all persons involved either directly or indirectly in the simulated golfing activities made possible by the Product(s). The Customer acknowledges and agrees that while dangerous and risky, the activities covered by this Agreement are not ultra-hazardous activities for which one can be held strictly liable. Rather, they are recreational activities in which the Customer, and persons acting through the Customer, will be voluntarily participating for their own enjoyment.
9.2 The Customer warrants and represents that all persons using the Product(s), including the Customer, if the Customer is an individual, and all employees, clients, guests, invitees of the Customer and all other persons, are of sufficient age, understanding and skill to use the Product/s and all ancillary equipment in a controlled and responsible manner, and are in good physical and mental health and able to withstand the physical and mental stresses inherent in the activities relating to the use of the Product(s). The Customer further states and represents that he, she or it will not permit use of the Product(s) by any person who has a health-related problem or condition that may affect the person’s ability to participate in any activities relating to the Product(s), or affect the safety of those around them, or by any person under the influence of alcohol, controlled substances, or drugs, prescription or otherwise, prior to or during any activities involving or relating to the Product(s).
9.3 It is the Customer’s sole responsibility to determine what, if any, health and safety or product liability warning notices, instructions or other labelling should be displayed on, about and/or with the Product(s), where they should be located or when they should be provided. Without prejudice to the Customer’s obligations stated above the Customer shall not remove, cover, alter or otherwise tamper with any such notices, instructions or labelling that may be placed on or with the Product(s) by the Company or original manufacturer.
9.4 The Customer is responsible to ensure that the Product(s) are used safely and as directed. The Customer must follow and clearly communicate any safety instructions to prevent damage to property, injury and/or death and ensure that the Product(s) are not tampered with in any manner, shape or form and maintain the Product(s) in strict compliance with the Company’s operating instructions, guidance, maintenance instructions and/or training. In the absence of any negligence or other breach of duty by the Company, the use of the Product(s) is entirely at the Customer’s risk.
9.5 The Customer should satisfy themselves prior to order that the Products and or Services and the environment in which the Products and or Services are to be incorporated including but not limited to any simulator design or structure design is suitable and safe for their circumstances and or where the Customer supplies or installs any equipment or carries out any works themselves that they are aware that the responsibility and liability for the design, safety and use of the Products and environment lies with them in accordance with this provision and the other provisions in the Contract and that they should take measures to eliminate or negate the effects of the Product(s) (to include any leading edges or design elements) that could lead to loss or damage to any property or person.
9.6 The Customer shall indemnify and hold the Company harmless against any claim by or any loss or damage to any person or property occasioned directly or indirectly by or arising from the use or operation or possession of the Product(s) or any part of the Product(s) and from negligence (including the use of any part of the Product(s) otherwise than in accordance with the Company’s operating instructions and manuals) or default (including any noncompliance with any obligation imposed by these terms and conditions or any delay wrong information or lack of required information) or misuse by or on the part of the Customer or any person or persons other than the Company and this indemnity shall extend to any costs and expenses incurred by the Company and shall continue in force notwithstanding the termination of the Contract or any other agreement between the Customer and the Company.
9.7 The Customer shall indemnify and hold the Company harmless against any claim by or any loss or damage to any person or property occasioned directly or indirectly as a result of any breach of the Customer’s obligations under the Contract or as a result of any customisation or alteration carried out to the Product(s) by the Customer whether such works are approved by the Company or not or where the works are carried out by the Company at the request of the Customer. Any attempts by the Customer to disassemble, modify or repair any Product(s) or any component parts without the express prior written authorisation of the Company shall automatically render all warranties null and void.
9.8 The Customer shall conform with all instructions and labelling prescribed by the Company in relation to the Consumer Protection Act 1987 or other health and safety legislation.
9.9 Subject to 8.5 the Customer shall have no claims to indemnity in respect of and shall fully indemnify the Company, its employees, agents and representatives against any claims by third parties (and all related costs and expenses) in respect of death or personal injury not caused by the Company’s negligence.
9.10 Where the Company does not supply & install the complete, fully enclosed simulator, where room dimensions differ from our recommended minimums and/or where we do not carry out all design and installation works ourselves, the Customer accepts full risk, responsibility and liability stemming from the design, set-up, use, and operation of the Product/s and simulated golf equipment.
9.11 The Customer/user of the equipment must inspect the Product/s and/or simulated golf equipment prior to each and every use to ensure the Product/s and/or simulated golf equipment is secured, in good working order, and that any safety features are correctly installed, maintained and in their correct positions.
10.1 In spite of delivery and installation (if applicable) having been made and risk being passed the title in the Product(s) shall not pass from the Company until the Customer shall have paid the Price plus VAT in full and any other sums whatever due from the Customer to the Company whether under this Contract or any other agreement.
10.2 Until title in the Product(s) passes to the Customer in accordance with Clause 10.1 the Customer shall hold the Product(s) and each of them on a fiduciary basis as bailee for the Company. The Customer shall where possible store the Product(s) (at no cost to the Company) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Company’s property.
10.3 Until such time as the title in the Product(s) passes from the Company, the Customer shall upon request deliver up such of the Product(s) as have not ceased to be in existence or been resold to the Company. If the Customer fails to do so the Company may enter upon any premises owned, occupied or controlled by the Customer where the Product(s) are situated and repossess the Product(s).
10.4 The Customer shall insure and keep insured with a reputable insurance company the Product(s) against all risks from the time risk passes to it in accordance with clause 4.6 until such time as title in the Product(s) is vested in it in accordance with clause 10.1 and the Customer shall indemnify the Company against any costs, claims, losses, or expenses of any kind incurred by the Company as a result of its failure to do so.
10.5 For the avoidance of doubt, the Company shall have the right to resell any Product in its possession for repair in the event of the Customer’s failure to pay for the repair.
- Third Parties
11.1 The benefit of the Contract and the warranties contained herein are personal to the Customer and may not be assigned, transferred, or dealt with in any way by the Customer. The terms of the Contracts (Rights of Third Parties) Act 1999 do not apply to the Contract.
11.2 The Customer shall indemnify the Company against any loss, cost, expense or damage incurred by the Company arising from the use or sale of the Product(s) by the Customer or any person acquiring the Product(s) through the Customer, save to the extent caused by the Company’s negligence or wilful misconduct.
11.3 The sale or transfer of ownership of any Company Product/s (hardware, software or both) from the original Customer to any third party shall incur an administration fee, currently £750 + VAT but chargeable at the current rate at the time of transfer, to register the product/s in the new customers’ name.
- Software License
The Customer is granted a conditional, non-transferable license to use the proprietary software originally installed with the Product(s) as defined in the EULA for as long as the Customer owns the Product(s) or as stated on the Order or invoice if the licence is non-permanent and or geographically limited, the usage of which is subject to the EULA which is available from the relevant Product website. The license is conditioned upon full and timely payment by the Customer of all sums due to the Company and may be revoked without notice if the Customer is in default of any payment or any provision of the Contract. No part of the Company’s proprietary software may be used separately from the Product(s). The Company reserves the right to periodically manufacture updates and enhancements to its proprietary software and to license the same on such terms and conditions as the Company may from time to time determine. Unless otherwise stated on the Purchase Order, the Price does not include any upgrades. Unless otherwise agreed, any upgrades or enhancements sold to the Customer shall be subject to the same licensing conditions and restrictions set forth herein.
- Confidentiality and Intellectual Property
The Customer acknowledges that the Product(s) contain trade secrets of the Company and Foresight Sports Inc or other third parties and agrees not to reverse engineer or disassemble the Product(s). The Customer also agrees not to remove, hide, deface or tamper with any intellectual property notices or any other notices or branding appearing on the Product(s).
- Late Payment and Interest
Time of payment shall be of the essence of the Contract. Interest shall accrue from the date that the amount becomes due for payment until the date of actual payment at the rate of 4% above Barclays Bank Plc’s base rate from time to time in force and shall accrue at such rate after as well as before any judgment calculated on a daily basis and compounded monthly. The Customer will indemnify the Company in respect of all costs and expenses incurred in connection with the recovery of all overdue amounts.
- Events outside the control of the Company
15.1 The Company will not be liable or responsible for any failure to perform, or a delay in the performance of, any of its obligations under the Contract that is caused by events outside its reasonable control (a “Force Majeure Event”).
15.2 The Company’s performance under the Contract is deemed to be suspended for the period that the Force Majeure Event continues, and it will have an extension of time for performance for the duration of that period. The Company will use its reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which its obligations under the Contract may be performed despite the Force Majeure Event.
16.1 The Customer agrees to use the Product(s) only in compliance with applicable law and regulations and will be solely responsible for obtaining any necessary government or other approvals applicable to the Customer’s use including but not limited to planning permissions, fire regulations, and structural loading approvals.
16.2 If any provision of the Contract shall be held to be unenforceable by a court of appropriate jurisdiction, then such provision shall be enforced to the maximum extent permitted by applicable law and the remaining provisions of the Contract shall remain in full force and effect.
16.3 The Contract is subject to English law and the parties submit to the exclusive jurisdiction of the English courts. The Contract represents the entire agreement between the parties and supersedes all prior agreements and understandings, written or oral. The Contract may not be modified except in writing and signed by both the Customer and a duly authorised representative of the Company.
16.4 All notices given by the Customer to the Company and vice versa must be given at the postal and email addresses of the respective parties set out on the Order. Notice will be deemed received and properly served immediately if delivered by hand or once signed for where sent by recorded or registered post and when sent by email at the time of transmission.
17.1 All units sold by the Company can be activated for use within the Company’s usage region, being the United Kingdom & Ireland, Europe, Middle East and/or Africa (‘the usage region’). To activate a unit purchased outside of the usage region for use within the usage region will incur a registration fee (currently £750 + VAT but chargeable at the current rate at the time of activation. Increases may apply). Should a Customer wish to utilize a unit purchased from the Company outside of the usage regions, the Customer may need to contact the international distributor in the destination region for the unit to be unlocked.
Answers to any questions regarding the Products or the terms and conditions of the Contract may be obtained by calling OPTIMUM GOLF TECHNOLOGIES LIMITED on +44 (0) 1483 779222.
This is an important agreement that applies to your use of the foresight products! Please scroll down!
If you are under the age of 18, stop! You must get your parent or legal guardian to read and accept this agreement.
End user license agreement
this is an agreement between you and foresight sports (together with its affiliates “foresight” or “we” or “our”) and provides important information about your foresight products. Please read this agreement carefully before using your smart camera system (hereinafter “system”) or related software from foresight sports (hereinafter “software”). You are agreeing to be bound by the terms of this agreement. If you do not agree to the terms of this agreement, you may return the system or software for a refund in accordance with the applicable return policy. Use of the system or software without acceptance of this agreement is strictly prohibited.
1. Software licenses
foresight provides three types of licenses for its software. Your invoice will reflect the type of license you have purchased from foresight.
A. If you have purchased a permanent license, foresight grants you an irrevocable, non-exclusive, royalty free, worldwide (except as prevented by us law) license and right to install and use the software; to permit your affiliates and franchisees to install and use the software; and to permit your customers, and your affiliates’ or franchisees’ respective customers to use the software on the terms of this eula. Your permanent license is not limited as to location (except as may be prevented by law), length of time, commercial or personal use, or amount of use. Your permanent license is registered to a single computer through a variety of metrics that identify your computer. If you replace primary components on your computer, or if you wish to move your license from one computer to another computer, you must deregister your license from the current computer and reregister your license on a new computer.
B. If you have purchased a temporary license, foresight grants you a revocable, non-exclusive, worldwide (except as prevented by us law) license and right to install and use the software; to permit your affiliates and franchisees to install and use the software; and to permit your customers, and your affiliates’ or franchisees’ respective customers to use the software on the terms of this eula during the period stated in your invoice. Your temporary license may be registered to a single computer or to a single smart camera system, depending on the type of license you have purchased. If you allow your temporary license to expire for non-payment of renewal fees or license fees, your license will expire and you will no longer be entitled to use the licensed products.
C. If you have purchased a smart camera system with a geographic license, foresight grants you a revocable, non-exclusive geographical license which may specify the geographic location(s) in which use of your system is authorized. Your geographic license requires periodic online activation and confirmation of the geographic location of your system. If your system is used in an unauthorized geographic location, your system’s data output capacity will be disabled. Please contact foresight’s customer support to obtain a valid geographical license for the location of your desired use.
You may only use the software, content, and data that came with your system or that is compatible with and authorized for use on your system, including any updates or replacement to that software, content, or data that we or our authorized providers make available to you subject to the terms of this section. The software is licensed, not sold, to you solely for your use. You may not publish, copy, modify, reverse engineer, decompile, or disassemble any portion of the software, or bypass, modify, defeat, tamper with, or circumvent any of the functions or protections of your system, unless otherwise permitted by law. The system and software, and any services available using the system are constantly evolving, and we may update or change your system or software, in whole or in part, without notice to you. Such updates or changes may be required for you to play new games, enjoy new features, or continue to access services. After your system or software is updated or changed, any existing or future unauthorized modification of the hardware or software of your system, or the use of an unauthorized device in connection with your system, will render the system permanently unusable. Content obtained through the unauthorized modification of the hardware or software of your system will be removed. You agree not to use your system in an unlawful manner or to access the systems, devices, accounts, software or data of others (including foresight sports) without their (or our) consent.
2. Use of information.
3. Reservation of rights.
Neither the sale, transfer, license, nor the use of your system or software transfers any title or ownership of any of our intellectual property rights. We reserve all rights that we have not expressly granted in this agreement.
Your rights under this agreement will immediately terminate if you do not comply with any term of this agreement. At the time of any termination of this agreement, you will immediately cease all use of the system or software. Our failure to insist upon or enforce your strict compliance with this agreement will not constitute a waiver of any of our rights.
5. Disclaimer of warranties and limitation of liability.
Use of your system or software is at your sole risk. Foresight is not responsible for any non-foresight sites, services, applications, content, data, messages, or other items that you access, use, or share via your system or software. Except for any limited warranty that applies to your system or software. No oral or written information or advice given by foresight or its representatives creates a warranty. The system or software is provided “as is” without warranty of any kind, and foresight disclaims all warranties with respect to the system or software, express or implied, including, without limitation, the implied warranties of merchantability and fitness for any particular purpose. To the maximum extent permitted by law, foresight will not be liable to you for any special or consequential damages of any kind arising out of or relating to your access, use, misuse, or inability to use the system or software, even if foresight has been advised of the possibility of such damages. In any case, foresight’s aggregate liability to you in connection with any claims arising out of or relating to the system or software is limited to the depreciated value of the products you purchased and paid for in full, or $50,000, whichever is less. If a law restricts our ability to limit liability or disclaim warranties, the limitations listed above may not apply to you. In that case, we limit our liability and disclaim warranties to the greatest extent permitted by law.
6. Dispute resolution; binding individual arbitration; class action waiver.
A. Our consumer services department is available to address any concerns you may have regarding your system or software. You may contact us at support@foresightsports.Eu. Most matters are quickly resolved in this manner to our customer’s satisfaction. Any matter we are unable to resolve and all disputes or claims arising out of or relating to this agreement, including its formation, enforceability, performance, or breach (each, a “claim”), with the exception of the matters described in section 6(c) below, shall be finally settled by binding arbitration administered by the american arbitration association in accordance with the provisions of its commercial arbitration rules and the supplementary procedures for consumer-related disputes of the american arbitration association (the “aaa”), excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all claims. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. Any such arbitration shall be conducted by the parties in their individual capacities only and not as a class action or other representative action, and the parties waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class-action waiver set forth in the preceding sentence is void or unenforceable for any reason or that in arbitration can proceed on a class basis, then the arbitration provision set forth in this section 6 shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate.
B. You and foresight agree to the exclusive jurisdiction of the state and federal courts in san diego county, california to confirm and enforce any arbitration award.
C. You agree that the u.S. Federal arbitration act governs the interpretation and enforcement of this provision, and that you and foresight sports are each waiving the right to a trial by jury and the right to participate in a class or multi-party action. This arbitration provision shall survive termination of these agreements and the termination of your foresight sports account. The arbitration will be governed by the commercial arbitration rules and the supplementary procedures for consumer related disputes of the american arbitration association (the “aaa rules”), as modified by these agreements, and as administered by the aaa. You and foresight sports agree that these agreements involve interstate commerce and are subject to the federal arbitration act.
D. You and foresight agree that each may bring claims against the other only in your or its individual capacity, and not as a class member or in any representative capacity or proceeding. Further, no arbitrator shall consolidate any other person’s claims with your claims, and may not otherwise preside over any form of a multi-party or class proceeding. If this specific provision is found to be unenforceable in any way, then the entirety of this arbitration section shall be null and void. The arbitrator may not award declaratory or injunctive relief.
E. Any arbitration must be commenced by filing a demand for arbitration with the aaa within one (1) year after the date the party asserting the claim first knows or reasonably should know of the act, omission or default giving rise to the claim; and there shall be no right to any remedy for any claim not asserted within that time period. If applicable law prohibits a one-year limitations period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law. Your arbitration fees and your share of arbitrator compensation will be limited to those fees set forth in the aaa’s consumer rules with the remainder paid by foresight.
If any part of this agreement is held to be invalid or unenforceable, that part will no longer apply to the parties and will be replaced by an enforceable provision that most closely reflects the original intent of the parties. All other parts of the agreement will remain in effect unless otherwise provided in this agreement. If section 6 is held to be invalid or unenforceable, then for any claims the parties consent to the exclusive jurisdiction of the courts located in san diego county, california, u.S.A.