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Mobile Application End User License Agreement

PRIVACY POLICY | END USER LICENSE AGREEMENT | WEBSITE TERMS OF USE

Last Modified: August 21, 2024

This Mobile Application End User License Agreement (“Agreement”) is a binding agreement between you (“End User” or “you”) and ShotSense Golf, Inc. (“Company”). This Agreement governs your use of the ShotSense Golf “app” as downloaded or accessed by you from any source (including all related documentation, the “Application”). The Application is licensed, not sold, to you.

PLEASE READ CAREFULLY: BY CLICKING “I ACCEPT” OR BY DOWNLOADING, INSTALLING, OR USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER (OR HAVE OBTAINED PROPER PERMISSION FROM A PARENT OR GUARDIAN TO AGREE TO THESE TERMS AND USE THE APPLICATION); AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. THE TERMS INCLUDE, AMONG OTHER PROVISIONS, A LIMITATION OF LIABILITY, CAPPED DAMAGES, WAIVER OF JURY TRIAL, AND WAIVER OF JOINING ANY CLASS ACTION. READ THE ENTIRE LICENSE AGREEMENT CAREFULLY BEFORE ACCEPTING. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, OR USE THE APPLICATION AND OTHERWISE DELETE IT FROM YOUR MOBILE DEVICE.

By using this mobile application, you confirm that you are at least 18 years old, or if you are under 18, that you have obtained verifiable consent from a parent or legal guardian to use this application and agree to its terms and conditions on your behalf. If you are a parent or guardian agreeing to these terms for the benefit of a minor, you accept full responsibility for the minor's use of the application, including all financial charges and legal liability that they may incur.

1. License Grant

Subject to the terms of this Agreement, the Company grants you a limited, non-exclusive, and non-transferable license to:

  1. download, install, and use the Application for your personal, non-commercial use on a single mobile device (e.g., phone, tablet, smartwatch, etc.) owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with the Application's documentation; and
  2. access, stream, download, and use on such Mobile Device the Content and Services (as defined in Section 5) made available in or otherwise accessible through the Application, strictly in accordance with this Agreement and the Terms of Use applicable to such Content and Services as set forth in Section 5.

2. License Restrictions

Except as may be expressly permitted by applicable law or expressly authorized by the Application, you shall not:

  1. copy the Application, except as expressly permitted by this license;
  2. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
  3. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
  4. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
  5. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time;
  6. use any robot, spider, or other automatic device, process, or means to access the Application for any purpose, including monitoring or copying any of the material on the Application;
  7. use any manual process to monitor or copy any of the material on the Application, or for any other purpose not expressly authorized in this Agreement, without Company's prior written consent;
  8. frame, mirror, or otherwise incorporate the Application or any portion of the Application as part of any other mobile application, website, or service;
  9. use the Application in any manner that could disable, overburden, damage, or impair the Application or interfere with any other party's use of the Application; or
  10. remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application; or
  11. use the Application in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including any power generation systems; aircraft navigation or communication systems, air traffic control systems, or any other transport management systems; safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire, or other safety response systems; and military or aerospace applications, weapons systems, or environments.

3. Reservation of Rights

You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.

4. Collection and Use of Your Information/Ownership

  1. You acknowledge that when you download, install, or use the Application, Company may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Application. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Application or certain of its features or functionality, and the Application may provide you with opportunities to share information about yourself with others. All information we collect through or in connection with this Application is subject to our Privacy Policy. By downloading, installing, using, and providing information to or through this Application, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
  2. You agree that the Company owns all of the information generated by your use of the Application. To the extent it is not possible to transfer ownership of the data to Company, by using the Application, you hereby grant Company a royalty-free, perpetual, worldwide, non-exclusive license to use, reproduce, modify, distribute, sell, sublicense, and otherwise exploit any data entered by you or generated from your use of the Application. This license includes, but is not limited to, the right to:
    1. Use: Utilize the data for any purpose, including improving the application, developing new products or services, and conducting market research.
    2. Reproduce: Make copies of the data as necessary for the purposes outlined in this clause.
    3. Modify: Alter, adapt, or change the data in any form to suit the needs of Company.
    4. Distribute: Share the data with third parties, including but not limited to affiliates, partners, and service providers.
    5. Sell: Commercialize the data by selling, loaning it, renting it, or otherwise transferring it to third parties.
    6. Sublicense: Grant sublicenses to third parties to use the data for any purpose, including but not limited to those outlined in this clause.
    7. You acknowledge and agree that Company may use the data in any manner and for any purpose it deems appropriate, without compensation or obligation to you.

This license will survive any termination of your use of the mobile application.

5. Content and Services

The Application may provide you with access to Company's website located at https://shotsensegolf.com (the “Website”) and products and services accessible thereon, and certain features, functionality, and content accessible on or through the Application may be hosted on the Website (collectively, “Content and Services”). Your access to and use of such Content and Services are also governed by Website's Terms of Use and Privacy Policy, which are incorporated herein by this reference. To the extent there is any conflict between this Agreement and the Terms of Use, this Agreement shall control. Your access to and use of such Content and Services may require you to acknowledge your acceptance of such Terms of Use and Privacy Policy and/or to register with the Website, and your failure to do so may restrict you from accessing or using certain of the Application's features and functionality. Any violation of such Terms of Use will also be deemed a violation of this Agreement.

6. User Registration and Account Management

  1. Account Creation: To utilize specific features of the Application, you may be required to create a user account by providing accurate and complete information. You are responsible for maintaining the confidentiality of your account credentials and for all activities that occur under your account.
  2. Account Security: You agree to notify Company immediately of any unauthorized use of your account or any other breach of security. Company will not be liable for any loss or damage arising from your failure to comply with this security obligation.
  3. Account Management: You may edit or delete your account information at any time by accessing the account settings within the Application. Company reserves the right to suspend or terminate your account if you provide false or misleading information, or if you violate any terms of this Agreement.

7. Geographic Restrictions

The Content and Services are based in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.

8. Payments and Subscriptions

  1. Payment Terms: The Application may offer certain features or services that require payment. By subscribing to or purchasing any of these services, you agree to pay all fees associated with the service, including any applicable taxes. All payments must be made in accordance with the payment terms presented to you at the time of purchase.
  2. Subscriptions: Some features of the Application may be available through a subscription service. By subscribing, you agree to the automatic renewal of your subscription at the end of each subscription period unless you cancel your subscription before the renewal date. If you cancel, you will retain access to the subscription services until the end of the current subscription period.
  3. Automatic Renewals: Subscription services will automatically renew at the end of each term unless you cancel your subscription in accordance with the cancellation procedures outlined in the Application. You authorize Company to charge the applicable subscription fees to the payment method provided by you at the time of subscription.
  4. Refunds: All payments and fees are non-refundable, except as required by applicable law. If Company terminates your access to the Application or subscription services for a reason other than your breach of this Agreement, you may be entitled to a pro-rated refund of any prepaid fees.

9. User Conduct and Restrictions

You agree to use the Application in compliance with all applicable laws, regulations, and the terms of this Agreement. You shall not:

  1. Intentionally or unintentionally engage in any conduct that could damage, disable, overburden, or impair the Application;
  2. Attempt to gain unauthorized access to any accounts, computer systems, or networks connected to the Application through hacking, password mining, or any other means;
  3. Use the Application for any illegal, unauthorized, or otherwise improper purposes, including but not limited to harassment, defamation, or the violation of others' rights;
  4. Reproduce, duplicate, copy, sell, trade, resell, or exploit any portion of the Application, use of the Application, or access to the Application without Company’s prior written consent;
  5. Upload, post, or transmit any material that infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any party.

10. Updates

Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company 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:

  1. the Application will automatically download and install all available Updates; or
  2. you may receive notice of or be prompted to download and install available Updates.

You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.

11. Third-Party Materials

The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials"). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company 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 thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions.

12. Term and Termination

  1. The term of Agreement commences when you download and/or install the Application and will continue in effect until terminated by you or Company as set forth in this Section 12.
  2. You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.
  3. Company may terminate this Agreement at any time without notice. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
  4. Upon termination:
    1. all rights granted to you under this Agreement will also terminate; and
    2. you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account.
  5. Termination will not limit any of Company's rights or remedies at law or in equity.

13. Disclaimer of Warranties

THE APPLICATION IS PROVIDED TO END USER “AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, 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 THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. 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.

14. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:

  1. PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
  2. 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 COMPANY 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.

15. Indemnification

You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.

16. Export Regulation

The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.

17. US Government Rights

The Application is a commercial product, consisting of commercial computer software and commercial computer software documentation, as such terms are defined in 48 C.F.R. § 2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.

18. 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.

19. Governing Law

This Agreement is governed by and construed in accordance with the internal laws of the State of Virginia without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of Virginia in each case located in Fairfax and Fairfax County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. The prevailing party in any litigation arising hereunder shall be entitled to recover their costs so expended and reasonable attorneys’ fees.

20. Class Action Waiver/Waiver of Right to Jury Trial

  1. YOU AGREE THAT ANY DISPUTE ARISING OUT OF OR RELATING TO YOUR USE OF THE APPLICATION, THIS AGREEMENT, OR ANY DATA INPUT BY YOU OR GENERATED FROM YOUR USE OF THE APPLICATION WILL BE RESOLVED ON AN INDIVIDUAL BASIS. YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION AGAINST THE COMPANY, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, AND SUPPLIERS.
  2. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AND COMPANY WAIVE ANY RIGHT TO A JURY TRIAL IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT, YOUR USE OF THE APPLICATION, OR ANY DATA INPUT BY YOU OR GENERATED FROM YOUR USE OF THE APPLICATION. THIS WAIVER APPLIES TO ANY CLAIMS BROUGHT UNDER TORT, CONTRACT, OR STATUTE.

21. Limitation of Time to File Claims

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

22. Entire Agreement

This Agreement, our website terms of use, and our Privacy Policy constitute the entire agreement between you and Company with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.

23. 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.

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