Xonic Terms of Service

These pages set out the binding terms and conditions that govern your use of the Xonic mobile application and any other services provided by Xonic Golf Inc. (“Xonic”, “us” or “we”) including the website at xonicgolf.com (the “Site”).

This agreement is a binding agreement between you (“End User” or “you”) and Xonic and governs your use of the Xonic application and all related documentation and material provided by us through your use of the Xonic application (together “Xonic iTQ”) as well as your use of the Site.

You represent and warrant that you are the legal age of majority under applicable law to form a binding contract with Xonic.

Xonic iTQ is licensed, not sold, to you.

IF YOU CHOOSE TO DOWNLOAD, INSTALL OR USE XONIC iTQ, OR ACCESS THE SITE YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.

IF YOU DO NOT AGREE TO THESE TERMS, STOP USING THIS SITE AND DO NOT DOWNLOAD, INSTALL OR USE THE XONIC APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.

The Xonic iTQ™ is the first caddie tool to give golfers of all skill levels instant, customized PGA professional quick fixes and tips. The iTQ’s advanced, patent-pending AI system uses your unique swing signature™ to continuously identify the most effective quick fixes and tips for you.

License Grant. Subject to the terms of this agreement, Xonic grants you a limited, non-exclusive, and non-transferable license to download, install, and use Xonic iTQ for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you (“Mobile Device”) and to access, stream, download, and use on such Mobile Device the Content and Services (defined below) that are made available from Xonic through Xonic iTQ, strictly in accordance with this agreement and our Privacy Policy (together our “Terms of Use”).

1. Fees and Trial Periods.

(a) Your access and use of Xonic iTQ requires a valid in-app paid subscription. Subscription fees are payable on a monthly or yearly basis, in advance, as selected by you, and will auto-renew until your subscription is terminated. You may cancel your subscription at any time. All fees are non-refundable. Should you cancel your subscription, your subscription will continue until the next billing date, following which you will no longer be able to use Xonic iTQ and you will lose any saved data and content. You will not be entitled to a refund for the balance of any pre-paid subscription period. By way of example, if you are on a monthly subscription and cancel your subscription mid-month, you will not receive a refund for the balance of the pre-paid month. YOU MUST CANCEL YOUR SUBSCRIPTION AT LEAST 24 HOURS PRIOR TO RENEWAL IN ORDER TO AVOID AN AUTOMATIC RENEWAL AND IN ORDER TO AVOID BILLING OF SUBSCRIPTION FEES FOR THE FULL RENEWAL PERIOD.

(b) Xonic iTQ may, from time to time, offer a one-time free trial or other time limited discount. Once you start a free trial, you cannot activate a further free trial, even if you cancel the initial free trial before it ends. Any unused portion of a free trial period may be forfeited when you purchase a subscription or cancel the free trial. UPON EXPIRY OF A FREE TRIAL, UNLESS YOU HAVE CANCELLED THE FREE TRIAL AT LEAST 24 HOURS PRIOR TO ITS EXPIRY, YOU WILL AUTOMATICALLY BE SUBSCRIBED FOR, AND BILLED FOR, THE SUBSCRIPTION PERIOD THAT YOU SELECTED WHEN REGISTERING FOR THE FREE TRIAL (E.G. ONE MONTH OR ONE YEAR).

2. License Restrictions. You shall not:

(a)  reproduce the Xonic iTQ app, except as expressly permitted by this license;

(b)  modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of Xonic iTQ;

(c)  reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of Xonic iTQ in whole or in part;

(d)  remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from Xonic iTQ;

(e)  disclose or share with any other person or entity, your access credentials for Xonic iTQ, including your password, and all such information must be treated as confidential by you;

(f)  rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available Xonic iTQ, or any features or functionality of Xonic iTQ, to any third party for any reason, including by making Xonic iTQ available on a network where it is capable of being accessed by more than one device at any time; or

(g)   remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting Xonic iTQ.

3. Reservation of Rights. You acknowledge and agree that Xonic iTQ is provided under license and not sold to you. You do not acquire any ownership interest in Xonic iTQ or the Site under this agreement, or any other rights in Xonic iTQ or the Site other than to use Xonic iTQ or visit the Site in accordance with the license granted, and subject to the Terms of Use. Xonic and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to Xonic iTQ, including all copyrights, trademarks, and other intellectual property rights, except as expressly granted to you in this agreement.

4. Collection and Use of Your Information.

(a)  You acknowledge that when you download, install, or use Xonic iTQ, Xonic may use automatic means to collect information about your Mobile Device and about your use of Xonic iTQ.

(b)  Xonic iTQ and the Site may each, from time to time, contain interactive features (collectively, “Interactive Services”) that allow you to upload, post, submit, publish, display, or transmit to other users or other persons, content or materials (collectively, “User Contributions”).

(c)  USER CONTRIBUTIONS INCLUDE ANY VIDEOS OF YOUR GOLF SWING THAT YOU UPLOAD TO XONIC ITQ (“Golf Swing Videos”).

(d)  All User Contributions must comply with any content standard published by Xonic from time to time.

(e)  Any User Contribution you post will be considered non-confidential and non-proprietary.

(f)  By providing any User Contribution, including without limitation any feedback regarding Xonic iTQ or the Site, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the irrevocable, perpetual, royalty free, worldwide right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose, including for purposes of modifying or improving Xonic iTQ, its artificial intelligence (AI) engine, and the Site. Notwithstanding the foregoing, Xonic will not publish, share or disclose your Golf Swing Videos (or any audio that may form a part of the Golf Swing Videos) to or with any third party. Golf Swing Videos are used solely for purposes of providing you with your golf swing analysis and for purposes of improving Xonic’s AI engine.

(g)  You represent and warrant that you own or control all rights in and to the User Contributions and have the right to grant the license granted above.

(h)   You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not Xonic, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.

(i)  We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user.

You also may be required to provide certain information about yourself as a condition to downloading, installing, or using Xonic iTQ or certain of its features or functionality, and Xonic iTQ or the Site may provide you with opportunities to share information about yourself with others. All information that we collect through or in connection with Xonic iTQ or the Site is subject to our Privacy Policy. By downloading, installing, using, or providing information to or through Xonic iTQ or the Site, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy

5. Updates. Xonic may from time to time in its sole discretion develop and provide Xonic iTQ updates, which may include upgrades, bug fixes, patches, other error corrections and new features (collectively, including related documentation, “Updates”). Updates may modify or delete, partially or in their entirety, certain features and functionality. Xonic has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet, either (i) Xonic iTQ will automatically download and install all available Updates; or (ii) you may receive notice of or be prompted to download and install available Updates. Xonic iTQ or portions of Xonic iTQ may not properly operate should you fail to install all Updates. All Updates are deemed to be a part of Xonic iTQ and are subject to all terms and conditions of this agreement.

6. Third-Party Materials. Xonic iTQ may display, include, or make available third-party content (including instructional videos, data, information, applications, and other products, services or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). Xonic is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality or quality. Xonic does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links to such materials are provided solely as a convenience to you, and your access and use them are entirely at your own risk and subject to such third parties’ terms and conditions.

7. Term and Termination.

(a)  The term of this agreement as it relates to Xonic iTQ commences when you download or install Xonic iTQ and will continue in effect until terminated by you or Xonic as set out in this agreement.

(b)  You may terminate this agreement as it relates to Xonic iTQ by deleting Xonic Golf and all copies of it from your Mobile Devices.

(c)   Xonic may terminate this agreement at any time without notice if it ceases to support Xonic iTQ, which Xonic may do in its sole discretion. In addition, Xonic may terminate this agreement immediately and automatically without any notice to you if you violate any of the terms and conditions of this agreement.

(d)  Upon termination of this agreement, all rights granted to you under this agreement will terminate, and you must cease all use of Xonic iTQ and delete all copies of Xonic iTQ from your Mobile Devices.

(e)  Termination of this agreement will not limit any of Xonic’s rights or remedies at law or in equity.

8. DISCLAIMER OF WARRANTIES.

(a)  XONIC iTQ IS PROVIDED TO YOU “AS IS” AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

(b)  XONIC, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO XONIC iTQ, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY (INCLUDING OF ANY TRANSLATIONS), AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.

(c)  WITHOUT LIMITATION TO THE FOREGOING, XONIC PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT XONIC iTQ WILL (i) MEET YOUR REQUIREMENTS, (ii) ACHIEVE ANY INTENDED RESULTS, INCLUDING WITH RESPECT TO YOUR GOLF SWING OR GOLF GAME, (iii) MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. XONIC HAS NO OBLIGATION TO PROVIDE USERS WITH ANY SUPPORT OR TO PROVIDE ANY UPDATES TO OR OTHER MAINTENANCE OF XONIC iTQ OR THE SITE.

(d)  WHILE XONIC iTQ AND THE SITE ARE AVAILABLE FOR DOWNLOAD OR USE FROM MOST JURISDICTIONS IN THE WORLD, WE MAKE NO REPRESENTATION OR WARRANTY THAT XONIC iTQ OR CONTENT ON THE SITE IS APPROPRIATE, AVAILABLE, OR IN COMPLIANCE WITH ANY LAWS IN JURISDICTIONS OUTSIDE CANADA, AND ACCESSING XONIC iTQ OR THE SITE FROM TERRITORIES WHERE THEIR CONTENTS ARE ILLEGAL IS PROHIBITED. ANY USE OR ACCESS OF XONIC iTQ OR THE SITE IN ANY JURISDICTION OUTSIDE OF CANADA IS AT YOUR SOLE RISK.

(e)  GOLF SWING AND GAME ANALYSIS PROVIDED BY XONIC IS FOR INFORMATIONAL PURPOSES ONLY; NOT TO BE USED OR CONSTRUED AS A SUBSTITUTE FOR PROFESSIONAL OR MEDICAL ADVICE; AND NOT INTENDED AS A RECOMMENDATION OR ENDORSEMENT OF ANY SPECIFIC SYSTEM. RELIANCE ON ANY INFORMATION ABOUT YOUR GOLF SWING OR ANY PHYSICAL ACTIVITY ON, OR ACCESSIBLE THROUGH, XONIC iTQ OR THE SITE IS SOLELY AT YOUR OWN RISK. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER OR PROFESSIONAL WITH ANY QUESTIONS YOU MAY HAVE REGARDING YOUR HEALTH, OR THE SAFETY OR APPLICABILITY OF ANY SUGGESTIONS PROVIDED BY XONIC iTQ OR THE SITE. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON XONIC iTQ OR THE SITE.

(f)  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

9. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL XONIC OR ITS AFFILIATES, OR ANY OF ITS OR THEIR SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE XONIC iTQ, THE SITE OR XONIC’S CONTENT AND SERVICES FOR:

(a)  PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, DEVICE FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.

(b)  DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR XONIC WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

10. Severability. If any provision of this agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this agreement will continue in full force and effect.

11. Mandatory Arbitration. Any dispute, controversy or claim arising out of or relating to the Terms of Use and your use of Xonic iTQ, including any question regarding the Terms of Use’s existence, interpretation, validity, breach or termination, shall be referred to and finally resolved by arbitration under the Canadian Arbitration Association Arbitration Rules. The place of the arbitration shall be the City of Toronto in Canada. There shall be one (1) arbitrator. The language of the arbitration shall be English. There will be no appeal from the decision of the arbitral tribunal on questions of fact, law, or mixed fact and law.

12. Governing Law and Jurisdiction. This Agreement is governed by and will be construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable in Ontario. For the purpose of all legal proceedings this Agreement will be deemed to have been performed in the Province of Ontario and the courts of the Province of Ontario will have exclusive jurisdiction to entertain any action arising under this Agreement, except for matters that can be tried only before a Federal Court in which case jurisdiction and venue shall be in Toronto, Ontario.

13. Entire agreement. The Terms of Use constitute the entire agreement between you and Xonic with respect to Xonic iTQ and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to Xonic iTQ.

14. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this agreement and any applicable purchase or other terms, the terms of this agreement shall govern.