X Golf
TERMS OF USE
LAST MODIFIED ON 1/15/2021

Important: Please read these Terms of Use carefully before continuing to use this Non-Game Software.

Section 17 of this Terms of Use Agreement contains a binding arbitration clause and class action waiver. If you live in the United States, this Section affects your rights about how to resolve disputes that you may have with us. 

Please read it carefully.

This Terms of Use (the “Agreement”) applies to the X Golf mobile application software (the “Service”), provided by X Golf America, Inc. (“X Golf”).

FOR USERS OF THE X GOLF APP: We are concerned about your safety while using the X Golf app, so please pay attention to the following: 

DURING USAGE OF THE X GOLF APP AND X GOLF FACILITIES, PLEASE BE AWARE OF YOUR SURROUNDINGS AND ENGAGE WITH THE APP SAFELY!

By using the Service, you agree that:

  • your use of the Service is at your own risk; and
  • you won’t engage in any other activity which could lead to injury, death, damage to property, or any other kind of legal liability.

See Section 3 below for more information.

  1. Acceptance of Terms

By continuing to use the Service, you agree as follows:

    1. You understand and intend that this Agreement is a legally binding agreement and the equivalent of a signed, written contract;
    2. You will use the Service in accordance with applicable laws and regulations and in accordance with the terms and conditions in this Agreement as it may be amended by X Golf from time to time; and
    3. You understand, accept, and have received this Agreement and its terms and conditions, and acknowledge and demonstrate that you can access this Agreement.

If you do not agree with the terms and conditions in this Agreement, please discontinue all further use of the Service.

  1. X Golf’s License to You

X Golf grants you a single, non-exclusive, non-transferable and limited personal license to access and use the Service. This license is conditioned on your continued compliance with the terms and conditions in this Agreement. You may not rent, lease, lend, sell, transfer, redistribute, or sublicense the Service and, if you sell or otherwise transfer a device on which any part of the Service is installed to a third party, you must remove the Service from such device before doing so. You may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Service).

  1. Your Safety; Liability and Assumption of Risk
    1. Your Safety. When using the Service, you agree to the following terms regarding your safety and our liability:
      1. You agree to always be aware of your surroundings while using the Service. This includes watching out for other people and your immediate environment.
      2. You agree that your use of the Service is at your own risk, and that it is your responsibility to obtain and maintain any insurance policies (including health, liability, personal injury, medical, life, and others), that are reasonably necessary for any injuries that may be sustained while using the Service. 
      3. You agree not to violate (or encourage any third party to violate) any laws or regulations while using the Service. 
      4. You agree that you will supervise any minor children who are using the Service or any X Golf facilities, or if you are a minor, that you will have parental supervision when using the Service, at all times.

Without limiting the foregoing, you agree that you will not engage in any other activity which may reasonably result in injury, death, damage to property, or any other kind of legal liability. 

    1. X Golf Liability. IN ADDITION TO ANY OTHER LIMITATION OF LIABILITY INCLUDED IN THIS AGREEMENT, YOU AGREE THAT X GOLF, THEIR OFFICERS, DIRECTORS, AGENTS, PARTNERS, FRANCHISEES, PARENTS AND SUBSIDIARIES, AND EMPLOYEES ARE NOT LIABLE FOR ANY INJURY, DEATH, PROPERTY DAMAGE, OR OTHER LEGAL LIABILITY INCURRED BY YOU OR OTHERS WHILE USING THE SERVICE.
    2. Assumption of Risk.
You agree that, by using the Service, you acknowledge and agree that if you engage in any activity in connection with the Service, you do so at your own risk. You understand and agree that use of the Service carries with it certain risks, known and unknown, including but not limited to the risk of personal injury, and fully assume that risk on your own behalf and on behalf of your heirs, assigns, and agents. This includes, without limitation, your participation in any activity in connection with the Service and any devices or equipment used in connection with the Service. You agree that you are voluntarily participating in these activities and assume all risks of injury including, without limitation, injuries or damages that may result from your use of the Service.
  1. Messages from X Golf

You understand that you may receive business-related communications from X Golf through the Service or through email, such as product and other announcements, and administrative notices. You agree that these communications are not “unsolicited commercial email advertisements” and you agree to receive them. 

Email messages will be accompanied by instructions for opting out.

  1. Your Account
    1. Account Creation. You need to register for an Account to use the Service. You may only create an Account if you are at least 13 years old. If you are at least 13 years old but still a minor in your jurisdiction, your parent or legal guardian must establish an Account with us in order for you to access and use the Service.You may create an Account for free by signing up through a registration form on the Service. You are solely responsible for the activity that occurs on your Account. You agree to keep your Account and devices secure and to notify X Golf immediately of any breach of security or unauthorized use of your Account.
    2. Accurate Information. When creating your Account, you promise to provide accurate information related to your Account. You promise to keep this information updated so that it is accurate at all times. 
    3. Suspension of Accounts. X Golf may, at our sole discretion, suspend or terminate your Account or your access to the Service should your conduct, in our sole determination, fail to conform with this Agreement or for any other reason. 
    4. Your Username. X Golf may force you to change any of your screen names if (i) it is the name of another person, with the intent to impersonate that person, (ii) it incorporates the rights of a third party without appropriate authorization, or (ii) X Golf deems it unacceptable by community standards.
    5. Account Privacy. You agree that there is no expectation of privacy in connection with your interactions with other users in and through the Service. You further agree that the contents of any messages or other communication sent from your Account, whether in or through chats, forums, direct user-to-user communication, or by other means, may be accessed, reproduced, or distributed by X Golf as it sees fit. X Golf will fully cooperate with law enforcement and other governmental entities in policing the content of the Service.
    6. No Account Purchases and Transfers. You may not buy, sell, give, or trade any Account, nor attempt to buy, sell, give, or trade any Account. X Golf owns, has licensed, or otherwise has rights to all the content that appears in-Service, including Accounts.
  2. Your License to X Golf; Your Conduct
    1. Conduct Policy. You are responsible for your conduct as a user of the Service. You agree that you will not engage in conduct which: 
  • is threatening, bullying, defamatory, abusive, obscene, lewd, sexually provocative or suggestive, pornographic, or which in any manner could give rise to any civil or criminal liability under applicable law; 
  • is or could be taken as slurs, hate speech, or attacks on individuals or groups on the basis of race, color, gender, age, religion, national origin, disability, sexual preferences, or gender identity; 
  • constitutes spam (sending the same message multiple times or to multiple people, or sharing or sending the same content multiple times, will be treated as spam); 
  • is a solicitation or advertisement for any lewd or inappropriate personal conduct, commercial product, or activity;
  • encourages or constitutes behavior that does not support a safe and comfortable environment for all users, which conduct may include but not be limited to bullying, vigilantism, engaging in any conduct or activity that is threatening, harmful, harassing, abusive, vulgar, hateful, defamatory, lewd, sexually provocative, suggestive, or explicit, inflammatory, profane, racially or ethnically objectionable or discriminatory, or in any manner encourages inappropriate, disrespectful, abusive, or unlawful conduct or otherwise makes the Service an uncomfortable experience for anyone; 
  • restricts, inhibits, or discourages any other user from using the Service;
  • hacks, modifies or otherwise makes use of automation software (bots) or any other unauthorized third-party software designed to modify the Service experience; 
  • violates any local, state, federal or international laws or gives rise to civil liability; 
  • violates or infringes any rights of third parties (including but not limited to copyright, trademark, rights of privacy or publicity, defamation or any other proprietary right); 
  • imposes an unreasonable or disproportionately large load on the Service or otherwise interferes with the Service; 
  • is a “chain letter,” or constitutes “junk mail”; 
  • specifies or claims that that you are affiliated with X Golf when you are not, including without limitation an “Administrator,” “Moderator,” or any other employee or agent of X Golf; 
  • requests login information from other users; 
  • “spoofs” (use of any means to disguise your online identity or alter original attribute information, including, but not limited to duplicate accounts);
  • uses or possesses programs to “crack” the Service or other Internet security tools;
  • contains, or uploads files that contain, viruses, Trojan horses, worms, corrupted files or data, or any other similar software or programs that may damage or inhibit the operation of the Service; or 
  • anything else that X Golf, in its sole determination, deems offensive or harmful to the Service or to X Golf’s integrity or business.
  1. Virtual Currencies and Items

Virtual goods, downloadable content, and virtual points or currency (collectively, “Virtual Items”) may be earned or offered for purchase through the Service. Your election to make a purchase with real currency, whether through the Service, through an X Golf franchisee or other means, or earn Virtual Items through your activities on the Service, will be an offer to X Golf to purchase at the prices and on the terms set forth on the Service. 

You agree that you have no right or title in or to any Virtual Items. X Golf does not recognize any purported transfers of Virtual Items outside of the Service, or the purported sale, gift, or trade in the “real world” of anything that appears or originates in the Service. You may not sell Virtual Items for “real” money, or exchange those Virtual Items for value outside of the Service. To be clear, Virtual Items have no real-world value and are licensed, not owned.

Under no circumstances will refunds be given for Virtual Items. All sales of Virtual Items are final when the transaction has been processed. 

  1. Support Services

X Golf may, in its sole discretion, provide you with customer and technical support services related to the Service (“Support Services”). X Golf is not required to provide Support Services unless otherwise required by applicable law. No failure to provide, or to continue to provide, Support Services will be a default of X Golf under this Agreement. Any supplemental software code provided to you as part of the Support Services will be treated as part of the Service, and as between you and X Golf will be and remain the sole property of X Golf and will be subject to the terms and conditions of this Agreement. 

X Golf customer support may be reached by contacting us at info@xgolfamerica.com. You agree that you will look solely to X Golf in connection with Support Services.

  1. Modification, Termination, and Monitoring of the Service

X Golf reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part of the Service) with or without notice at any time. You agree that X Golf will not be liable to you or any third party for any modification, suspension, or discontinuance of the Service.

X Golf reserves the right to monitor use of the Service to determine compliance with this Agreement, as well as the right to edit, refuse to post, or remove any Service content, information, or materials, in whole or in part, at our sole discretion. We reserve the right to refuse access to the Service to anyone, for any reason, at any time.

X Golf may monitor your account, Service content, and other communications to evaluate the quality of service you receive, your compliance with the Agreement, the security of the Service, or for other reasons. You agree that such monitoring activities will not entitle you to any cause of action or other right with respect to the manner in which X Golf or its affiliates or agents monitor your account and other communications and enforces or fails to enforce the terms of the Agreement. In no event will X Golf or any of its affiliates or agents be liable for any costs, damages, expenses, or any other liabilities incurred by you as a result of monitoring activities by X Golf or its affiliates or agents.

  1. Security of Data Transmission and Storage

Electronic communications using the Service may not always be encrypted. You acknowledge that there is a risk that data, including email, electronic communications, and personal data, may be accessed by unauthorized third parties when communicated between you and X Golf or between you and other parties. Additionally, your communications and content on the Service may be publicly available to other parties.

X Golf and its affiliates and agents are permitted, but not obligated, to review or retain your account content and other communications. 

  1. Hyperlinks

The Service may contain links to other sites and software applications (the “Linked Services”). X Golf does not control the Linked Services, and X Golf and its affiliates and agents make no representations whatsoever concerning the content, accuracy, security or privacy of those Linked Services. The fact that X Golf has provided a link to an external location is not an endorsement, authorization, sponsorship, or affiliation with respect to such Linked Services, its owners, or its providers. There are risks in using any information, software, or products found on the Internet, and X Golf cautions you to make sure you understand these risks before retrieving, using, relying upon, or purchasing anything via the Internet. You agree that under no circumstances will you hold X Golf or its affiliates or agents liable for any loss or damage caused by use of or reliance on any content, goods, or services available on Linked Services.

  1. Trademarks and Copyrights

The Service is owned by X Golf and is protected by United States international copyright laws and treaty provisions. All Service content, trademarks, services marks, trade names, logos, and icons are proprietary to X Golf. Nothing contained in the Service should be seen as granting any license or right to use any trademark displayed in the Service without the written permission of X Golf or such third party that may own the trademarks displayed in the Service. Your use of the trademarks displayed in the Service, or any other content in the Service, except as provided in this Agreement, is strictly prohibited.

Intellectual property displayed through the Service is either the property of, or used with permission by, X Golf. You are prohibited from using or authorizing the use of this intellectual property unless specifically permitted under the Agreement. Any unauthorized use of this intellectual property may violate copyright laws, trademark laws, the laws of privacy and publicity, or other regulations and statutes.

  1. Copyright Complaints

If you are a copyright owner or their agent, and believe that any content on the Service infringes on your copyrights, you may submit a DMCA notification in writing to our Copyright Agent with the following information described below. When we receive a notice alleging copyright infringement, we will take whatever action we deem appropriate, within our sole discretion, including removal of the allegedly infringing materials and termination of access for repeat infringers of copyright protected content.

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are claimed, a list of those works on the Service;
  • Identification of the material that is claimed to be infringing and that is to be removed disabled, reasonably sufficient to permit us to locate the material;
  • Information reasonably sufficient to permit us to contact you, such as your email, address, or phone number;
  • A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  • A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Our Copyright Agent may be reached at the following physical or email address:

Copyright Agent
X Golf America, Inc.
19807 Hamilton Ave.
Los Angeles, CA 90502

Or by email at: info@xgolfamerica.com

  1. Disclaimer of Warranties

Your use of the Service is entirely at your own risk. 

The Service is provided by X Golf on an as-is basis. X Golf expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement.

X Golf makes no warranty that (i) the Service will meet your requirements, (ii) that operation of the Service will be uninterrupted, timely, secure, or error-free, or (iii) the results that may be obtained from the use of the Service will be accurate or reliable. 

No advice or information, whether oral or written, obtained by you from X Golf, or through the Service creates any warranty regarding the Service not expressly stated in this Agreement.

Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.

  1. Limitation of Liability
You expressly understand and agree that X Golf is not liable for any direct, indirect, incidental, special, consequential, or exemplary damages, including damages for loss of profits, goods, goodwill, use, data, or other intangible losses (even if X Golf has been advised of the possibility of such damages), resulting from the use or the inability to use the Service or any other matter relating to the Service.

Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of X Golf and its affiliates will be limited to the fullest extent permitted by law.

  1. Indemnification

You agree to indemnify and hold X Golf and its affiliates, officers, agents, and employees harmless from any claim, demand, loss, costs, or expense, including attorneys’ fees, made by any person or entity arising out of your violation of this Agreement, state or federal laws or regulations, or any other person’s rights, including infringement of any copyright or violation of any proprietary or privacy right. Under no circumstances, including any negligent act, will X Golf or its affiliates or agents be liable for any damages of any kind that result from the use of, or the inability to use, the Service.

  1. Your Personal Information

Certain personal and other information that we collect, process, and share is subject to our Privacy Policy.  As a condition of using the Service you agree to the terms of the Privacy Policy, as it may be changed from time to time. Our Privacy Policy, which is incorporated here by reference, is located at https://www.xgolfsimulator.com/privacy-policy/. You agree that your use of the Service is subject to the Privacy Policy.

  1. Disclosures Required by Law

X Golf reserves the right to disclose any information, including personally identifiable information about you, as necessary to satisfy any applicable law, regulation, legal process, or governmental request. X Golf reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing X Golf to disclose the identity of any user believed to be in violation of this Agreement.

By accepting this Agreement, you waive all rights and agree to hold X Golf harmless from any claims resulting from any action taken by X Golf during or as a result of its investigations or from any actions taken as a consequence of investigations by either X Golf or law enforcement authorities.

  1. Governing Law; Mediation; Jurisdiction

The Agreement, and all future agreements you enter into with X Golf, unless otherwise indicated on such other agreement, will be governed by the laws of the State of California. This is the case regardless of whether you reside or transact business with X Golf, or any of its affiliates or agents, in the State of California or elsewhere. Unless a dispute would be governed by the terms of Section 16 below, you agree to submit to the personal and exclusive jurisdiction of the courts located within the city of Los Angeles, California, USA.

  1. Binding Arbitration

Any dispute or claim relating in any way to your use of the Service (each, a “Claim”) will be resolved by binding arbitration, rather than in court (except that you may assert claims in small-claims court if your claims qualify). You agree that each Claim must be brought individually.

YOU AND X GOLF AGREE THAT (i) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (ii) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (iii) NO ARBITRATION MAY BE JOINED WITH ANY OTHER ARBITRATION.

The Federal Arbitration Act and federal arbitration law apply to this Agreement and this binding arbitration clause.

Arbitration is a process with no judge or jury – an arbitrator will review the arguments in the dispute and award damages and other relief just like a court would. The arbitrator must follow this Agreement as a court otherwise would. Court review of the arbitration award is limited under the Federal Arbitration Act.

To start an arbitration, you must send an email to info@xgolfamerica.com describing your Claim and requesting arbitration, or we may do the same by sending a written notice requesting arbitration to your address. The proceedings will be conducted through JAMS, using their Streamlined Arbitration Rules and Procedures. You can view these rules at jamsadr.com or by calling 800-352-5267. The payment of the initial filing fees will be made by the party filing the Claim, and any other filing and other fees will be apportioned as directed by the JAMS rules. The arbitration will take place in Los Angeles, California, USA, unless the Parties agree to video, phone, or internet connection appearances.

Except as otherwise set forth below, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and X Golf will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given (including any attorneys’ fees and costs awarded), and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based.

Notwithstanding the terms of this Section, either of us may bring a lawsuit in court for equitable relief, for any misuse or infringement of intellectual property rights, or for any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use of the Service.

BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND X GOLF WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.

You and X Golf agree that if any portion this Section is found illegal or unenforceable, that portion will be severed and the remainder of the Section will be given full force and effect.

  1. Miscellaneous Terms
    1. Agreement Revisions. This Agreement may only be revised in writing by X Golf, or by X Golf’s publication of a new version on the Service.
    2. Force Majeure. X Golf is not liable for any delay or failure to perform resulting from causes outside the reasonable control of X Golf, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond X Golf’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor, or materials. 
    3. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and X Golf as a result of this Agreement or your use of the Service. 
    4. Assignment. X Golf may assign this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without X Golf’s prior written consent, and any unauthorized assignment by you will be null and void.
    5. Severability. If any part of this Agreement is determined to be void, invalid or unenforceable, then that portion will be severed, and the remainder of the Agreement will be given full force and effect. 
    6. Attorneys’ Fees. In the event any litigation is brought by either party in connection with this Agreement, the prevailing party in such litigation will be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
    7. No Waiver. Our failure to enforce any provision of this Agreement will in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce every such provision thereafter. The express waiver by us of any provision, condition or requirement of this Agreement will not constitute a waiver of any future obligation to comply with such provision, condition or requirement. 
    8. Equitable Remedies. You hereby agree that X Golf would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we will be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
    9. Entire Agreement. This Agreement, including the documents expressly incorporated by reference, constitutes the entire agreement between you and X Golf with respect to the Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and X Golf with respect to the Service.