I (as the "Submitter") am making a submission of material / content (the "Material") to and for the benefit of Top Golf USA Inc. ("Topgolf") pursuant to this agreement (this "Agreement"). Intending to be legally bound, in consideration of the potential publicity and promotional value to Submitter of Topgolf's possible use or other further dissemination of the Material, and to induce Topgolf to possibly use the Material, Submitter is providing the Material to Topgolf pursuant to the following terms and conditions:
- Submitter hereby irrevocably grants to Topgolf a non-exclusive, perpetual, transferable, royalty-free license to publicly perform, publicly display, broadcast, transmit, post on social media, and distribute the Material, for free, via any medium (including without limitation radio, television, internet, social media, mobile apps, etc.), in any manner, by any means, whether now known or hereafter devised, as well as the right to edit, alter, or otherwise use the Material in whole or in part, alone or in compilation with content provided by third parties. Submitter waives any potential claims against Topgolf or any of its affiliates with respect to any such usage and/or editing of the Material.
- Submitter represents, warrants and covenants the following:
- Submitter is at least eighteen (18) years of age or age of majority in the Submitter's state of residence.
- The submission of the Material, entering into this Agreement and Topgolf's use of the Material in accordance with the terms of this Agreement, (i) does not violate the rights of any third party; and (ii) will not result in a breach of, and does not otherwise violate, any agreement or understanding with another party (including without limitation former or current employers of Submitter), or any policies and procedures that govern Submitter.
- Either: (i) the Material is Submitter's own creation and Submitter owns all rights in and to the Material; or (ii) Submitter has obtained all necessary rights to submit the Material to Topgolf and to enter into this Agreement.
- The Material is not obscene, indecent, does not defame, invade the privacy of, or infringe upon or violate any rights of any kind whatsoever of any individual or entity.
- The Material does not violate any law, rule, or regulation of any governmental entity.
- The Material is not subject to any obligation of confidentiality.
- Submitter has not accepted or agreed to accept, or paid or agreed to pay, any money, service or other valuable consideration for the inclusion of any matter in the Material.
- Submitter will indemnify and hold harmless Topgolf, and its affiliates, parent companies, subsidiaries, officers, shareholders, directors, members, managers, employees, agents, representatives, successors, and assigns (collectively "Topgolf Entities") against any and all loss, liability, claims, damages and other expenses, including reasonable attorneys' fees, arising from: (a) Topgolf's use of the Material under this Agreement; (b) any act or omission by Submitter; and (c) any breach of Submitter's representations and warranties in this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, United States of America, without application of conflict of laws principles. Submitter agrees that all disputes arising under this Agreement will be litigated and adjudicated exclusively in State and/or Federal Court located in the State of Texas, United States of America.
- LIMITATION OF LIABILITY - TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, TOPGOLF, ANY THIRD PARTY, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND AGENTS, ARE NOT LIABLE FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, PUNITIVE OR SIMILAR DAMAGES ARISING OUT OF OR RESULTING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, DAMAGES FOR HARM TO BUSINESS, LOST PROFITS, LOST SAVINGS, OR LOST REVENUES, HOWEVER SUCH DAMAGES ARE CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY.
- Submitter understands and agrees that in the exercise of the rights granted to Topgolf in this Agreement, Topgolf or its designees may, at their election, at any time and from time to time, utilize any and all rights granted to Topgolf hereunder, and the Material provided by Submitter, in any manner and by any means, whether now known or hereafter devised, including without limitation, by way of posting, streaming, webcasting, podcasting, televising, marketing, radio broadcasting or otherwise.
- Submitter understands that submission of the Material to Topgolf does not obligate Topgolf to use the Material.
- Submitter agrees that if Material is selected for use by Topgolf, Topgolf may use Submitter's full name, social account username, title of the Material, and city and state of residence and/or operation for the purpose of identifying, promoting and/or generating publicity for the usage. Except to the extent contained in the Material, Topgolf will not disclose any other personally identifiable information to the public, unless it is necessary to: (i) conform to regulatory and legal requirements or comply with the legal process; (ii) protect the safety and security of its users, employees, or property; (iii) to defend the rights of the Topgolf Entities; or (iv) enforce this Agreement.
- For purposes of this Agreement, "Material" shall include all elements of the submission, including any music or other copyrighted elements that may be contained therein.