Terms of Service

Welcome to MindTRAK! The present Terms of Service applies to your use of the MindTRAK Golf (“MindTRAK”) website located at www.mindtrakgolf.com (the “Website”) and to your use of MindTRAK’s mobile phone application (the “App”). These Terms of Service (the “Terms”) govern your access to and use of the Website and App. By using the Website or the App you affirm that you consent to the present Terms of Service. If you violate or do not agree to these Terms of Service, your use of the Website or App may be suspended or terminated at any time at the sole discretion of MindTRAK. Additional terms and conditions may apply to some services offered on the Website or App. The terms and conditions for such services will be listed on the Website or App from time to time and are incorporated into these Terms of Service by reference. To the extent permitted by applicable law, MindTRAK reserves the right to deny or terminate your use of the Website or App at our sole discretion.

 

1. About the Service

 

• MindTRAK helps you become a better golfer by empowering you to emotionally detach from the anxiety that comes with result-oriented thinking. MindTRAK Golf’s system (the “MindTRAK System”) develops the golfer’s mindset to access the present moment or ‘the now’. Our protocol is to utilize and maximize the thought sequence requirement—mental fitness—to detach emotionally from results. The MindTRAK System works by capturing shot-by-shot Key Performance Markers (“KPMs”), measuring golfer improvements, and facilitating a network for you to share KPM data with teaching professionals and golf coaches. The MindTRAK System can be accessed through our App, which is available for download on the iOS App Store (the “App Store”). App users can track their in-App data and progress through their online account, available on our Website.

 

• You may also request services from MindTRAK by contacting us at info@mindtrakgolf.com. Upon receipt of an email request, MindTRAK will endeavour to respond within 48 hours.

 

2. User Accounts

 

• Upon downloading the App, you will be prompted to create a MindTRAK user account (an “Account”). Within an Account, you can view your KPM data, measure and track your progress, and communicate with other users and coaches. While golfing or practicing, you will need to be logged in to your Account in order for the MindTRAK System to properly track your KPMs and progress. Your Account gives you access to the MindTRAK System and functionality that we establish, maintain and modify from time to time in our sole discretion. MindTRAK may maintain different types of accounts with different features or functionality for different types of users. You may only download and use the App in connection with your use of the MindTRAK System. This authorization is not a transfer of any rights in the Website, App, or contents thereof, other than as expressly granted herein.

 

• You must at all times provide accurate and truthful information regarding your identity when creating an Account and may not create an Account for another individual without their explicit written permission. MindTRAK reserves the right to suspend or cancel an Account at its sole discretion at any time and for any reason upon notice to you.

 

• You are solely responsible for updating your Account access passwords regularly. It is strongly recommended that passwords or login information or any other confidential information not be shared by email unless encrypted.

 

• You may cancel your Account at any time by contacting us by email at myaccount@mindtrakgolf.com, subject to our Refund Policy. MindTRAK also reserves the right to suspend or end the Services if you are found to be in breach of this Terms of Service, or for any other reason subject to this Terms of Service.

 

3. Promotions

 

• MindTRAK may occasionally offer new or existing users a promotional offer in connection with their use or potential use of the MindTRAK System (a “Special Offer”). The terms of a Special Offer shall be contained or otherwise transmitted therewith and otherwise governed accordingly.

 

4. Fees

 

• The fees payable in connection with your use of the MindTRAK System (the “Fees”) will be specified on the Website or on the App.

 

• In the event of any discrepancy, other than a pricing discrepancy, between the Fees listed on the Website and those listed elsewhere, the Fees listed on the Website shall prevail and the other listing shall be duly amended upon notice to MindTRAK of the discrepancy. Fees are denominated on the Website in CDN and/or USD dollars and are exclusive of any applicable taxes. Fees listed on the App are denominated in the currency of the jurisdiction in which you are accessing the App Store.

 

• Fees may be paid by way of in-App purchase, e-transfer, or credit card. You represent and warrant that you are authorized to use the payment method you designate to You authorize MindTRAK to charge your designated payment method for the total amount of your purchase, including any applicable taxes and other charges. If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Account may be suspended or cancelled at our sole discretion.

 

• In the event that any credit card, deposit, and/or financial instrument is rejected by MindTRAK’s financial institution, you acknowledge and agree that MindTRAK shall invoice you in the amount of $50.00 for all fees and administrative time associated with the rejected cheque (GO COMMENT – SAME QUESTION ABOUT CHEQUES)and/or financial instrument. We reserve the right to suspend our services or your Account in the event of such delinquency. You agree to reimburse MindTRAK Inc. for any fees or costs, including lawyer’s fees, it incurs to collect an unpaid balance due.

 

• All disbursements, including but not limited to subscription fees, mailing, and shipping costs, incurred at your request shall be in addition to the stated Fees paid to MindTRAK. MindTRAK’s invoices for Fees and disbursements shall be paid upon receipt. However, if any amount remains unpaid 30 days after the date of an invoice, it is agreed that the unpaid portion shall bear interest at the rate of 12% per annum, calculated from the date of the

 

• MindTRAK may from time to time accept alternative payment methods not listed herein. Acceptance of alternative payment methods is at the sole discretion of MindTRAK. Instructions for alternative payment options will be listed on the Website or App when available, which availability may be withdrawn by MindTRAK at any time or from time to time at MindTRAK’s sole discretion.

 

• In the event of an error in connection with the pricing or charging of any Fees, MindTRAK reserves the right to correct such error accordingly (including charging the correct price) or to cancel the purchase and refund any amount charged. Your sole remedy in the event of a billing error is to obtain a refund for the excess amount To be eligible for such refund, you must provide notice of any such error within 30 days of the date of the billing statement in which such error first appeared.

 

5. Processing of Client Payment

 

All in-App purchases must be paid immediately upon request. Payments may be processed through a third-party payment processing service from time to time. All payments must be made in accordance with the fees, charges, and billing terms in effect at the time Fees are due and payable. MindTRAK reserves the right at any time to change its prices and billing methods, either immediately upon posting on the MindTRAK website or by email delivery to you.

6. Taxes

 

You take sole responsibility for the payment of any sales tax and any related penalties or interest to the relevant tax authority if you fail to pay the sales tax associated with the Fees (the “Sales Tax”). You hereby indemnify MindTRAK for any liability or expense we may incur in connection with such Sales Taxes. You may be required to provide MindTRAK with evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that MindTRAK is permitted to pass on to you, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.

 

7. Cancellation and Refund Policy

 

• Clients may cancel their Account at any time through the App or Website, through their Account settings page. All cancellations are subject to MindTRAK’s refund policy described below.

 

• MindTRAK reserves the right to terminate any Account for any reason at any time, including the ending of services that are already underway. If any payment processing request is rejected at any time for any reason, your Account may be immediately terminated and you will be notified of the termination within twenty four (24)

 

• No refunds shall be offered after use of the MindTRACK System as determined by MindTRAK in its sole discretion. In the event that you have downloaded but never accessed or used the App and then choose to permanently delete the App, any monies that have been paid to MindTRAK for use of the App may be refunded at your request. Refunds may also be available on a case by case basis at MindTRAK’s sole discretion by contacting refunds@mindtrakgolf.com.

 

8. Safe Use Standards

 

When accessing or using the MindTRAK Website, App, and/or your user Account, you agree that you will not violate any law, contract, or intellectual property or act in any way which may cause harm to MindTRAK or another MindTRAK System user. All users of the Website and/or App must adhere to MindTRAK’s safe use standards, including but not limited to:

 

• No unauthorized use of the MindTRAK Website or App;
• No using the Website or App to transmit unsolicited commercial emails or other similar messages;
• No copying of the content of the MindTRAK Website or App or any of its underlying source code;
• No removing, altering, or obscuring any copyright or other proprietary notices of MindTRAK or its affiliates or licensors in any portion of the MindTRAK Website or App;
• No uploading to the Website or App of any content or material which may harm, injure, damage, or otherwise risk the safety, wellbeing, or commercial operations of another user or of MindTRAK, or that contains any virus, malware, or other malicious coding;
• No obscuring or disabling any content that appears on or through the MindTRAK Website or App;
• No copying or collecting data from the MindTRAK Website or App or using the Website or App to in any way attempt to collect data or breach the security of Website or App users; and
• No violating of any requirements, policies, procedures or regulations of a third party service which is connected to the MindTRAK Website or App;

 

(the “Safe Use Standards”)

 

If you violate any of the foregoing, MindTRAK reserves the right to suspend or terminate your access to and use of the MindTRAK Website and/or the App immediately without notice. MindTRAK also reserves the right to pursue any remedy it deems appropriate under the circumstances if you are found to be in violation of our Safe Use Standards.

 

9. Use of MindTRAK Website and App

 

• Definitions:

 

• For the purposes of this Section 10, the following definitions shall apply:

 

1. “Business/Service Interruption” means any delay or stoppage to the Website or App or to your Account forced upon MindTRAK by reasons which could not have been reasonably foreseen or prevented;
2. “Computer Security” means the programs and software MindTRAK utilizes to protect its and its user’s Data;
3. “Cyber Extortion” means any direct or indirect attempt to coerce MindTRAK or its representatives through online or electronic means into any form of exchange to prevent a threatened action by the coercing party;
4. “Data” means any electronic information, text, or code in the possession of MindTRAK.
5. “Data Asset” means any electronic information, text, or code provided by you or created by MindTRAK further to your use of the Website or App;
6. “Force Majeure” includes, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services;
7. “Information” includes Personal Identifiable Information, Data, Data Assets, and any other documentation which could be reasonably foreseen as having intrinsic or economic value to a user and/or to MindTRAK;
8. “Malicious Code” means any code in any part of a software system or script that is intended to cause undesirable effects, security breaches or damage to a compute system.
9. “Personal Identifiable Information” means any information that alone or in combination with other information held by MindTRAK can be used to specifically identify a user;
10. “Security Breach” means any compromise of MindTRAK’s personal or corporate accounts, computers, or any other password-protected information, that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to protected data transmitted, stored or otherwise processed

 

• MindTRAK takes your privacy and security extremely seriously. While we endeavour to take every reasonable precaution to protect your information, certain events outside of our control, including but not limited to cyber extortion, hacking, business/service interruptions, and force majeure events, may result in the disclosure, damage, or destruction of such information and further subsequent damage. In such event, MindTRAK shall not be held responsible or liable for any theft, damage, loss or unauthorized disclosure of personally identifiable information or any other information or records that are in the care, custody or control of MindTRAK. In such event, MindTRAK shall not be held liable for any service interruption that is a direct or indirect result of:

 

1. The alteration, corruption, destruction, deletion, or damage to data stored on MindTRAK’s computer systems;
2. Data loss, damage, inability to access a data asset or your Account, and/or intellectual property infringement that is caused by a security breach or force majeure event;
3. Data loss, damage, inability to access a data asset or your Account, or a business/service interruption caused by a satellite or internet failure;
4. The failure to prevent transmission of malicious code from MindTRAK computer systems to computer or network systems belonging to a user of MindTRAK or related third party;
5. The failure to prevent a loss or threat caused by cyber extortion.

 

10. Limited License

 

Except as otherwise provided, subject to your compliance with these Terms of Service, for so long as you maintain an active Account, MindTRAK grants to you a revocable, personal, non-exclusive, non-assignable and non-transferable license for personal, non-commercial purposes, except where explicitly provided otherwise, to (i) access the MindTRAKs Website or App (ii) cause the Website or App to be displayed from a computer and/or mobile device, (iii) to install and run one copy of the Application on a single mobile device, and (iv) use the Website or App, solely as permitted under these Terms of Service (the “License”). MindTRAK and its affiliates and licensors reserve all rights not expressly granted to you in these Terms of Service. Your rights herein are only as described above for this limited License. The License granted under this Section may be terminated by MindTRAK for any reason at MindTRAK’s sole discretion.

 

11. Intellectual Property Rights

 

• Unless otherwise indicated, the MindTRAK Website and App and all content, materials, information, functionality and other materials displayed, performed, contained or available on or through the MindTRAK Website or App, including, without limitation, the MindTRAK logo, and all designs, text, graphics, pictures, information, data, sound files, images, illustrations, software, other files, and the selection and arrangement thereof (collectively, the “Materials”) are the proprietary property of MindTRAK or its affiliates or licensors, and are protected by Canadian and international copyright laws and other intellectual property rights

 

• The Website and App are © 2016 MindTRAK Golf, Inc. MindTRAK reserves all rights in the Website and App including but not limited to the right to sue and otherwise enforce intellectual property rights in the Website and App.

 

• You are not permitted to post any material to the Website or App if such material would violate a copyright or other applicable law, including the Digital Millennium Copyright Act (“DMCA”). If you believe any material on the Website or App infringe on an exclusive right, you may notify MindTRAK by sending a notice containing:

 

• A physical or electronic signature from 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

 

• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and the location of said material.

 

• Contact information for the complainant, such as an address, telephone number, and email address.

 

• A statement that the complainant has a good faith belief that use of the material in the allegedly infringing manner is not authorized by the copyright owner, its agent, or the law.

 

• A statement that the information in the notice is accurate and, under penalty of perjury, that the complainant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 

MindTRAK’s address for receipt of such notices is Unit 13—880 Christina Place, Kelowna, BC, Canada, V1V 1S2.

 

12. Trademarks

 

MindTRAK, www.mindtrakgolf.com, and other MindTRAK graphics, logos, page headers, buttons, icons, scripts, and service names are trademarks of MindTRAK, and may not be copied, imitated, or used, in whole or in part, without MindTRAK’s prior written consent. All other registered trademarks and service marks are used for reference purposes only, and remain the property of their respective owners. Reference to any products, services, processes or other information, by name, trademark, manufacturer, supplier or otherwise does not constitute or imply an endorsement, sponsorship or recommendation by MindTRAK.

 

13. Communications

 

• MindTRAK reserves the right to contact you from time to time for feedback regarding your use of the Website or App. MindTRAK will also contact any Website or App user who files a complaint with MindTRAK regarding a representative of MindTRAK or our services overall. Notices to users will be deemed effective at the time they are sent by MindTRAK or as of the date they are posted on the Website or App.

 

• You understand that the Website or App may feature advertisements from MindTRAK or third parties.  Our disclosure of information for third party advertising is addressed in and subject to our Privacy Policy.

 

• MindTRAK may provide links to third party websites or vendors. We make no representations or warranties regarding any content, goods or services provided by any third party linked from the Website or App. Without limiting the generality of the foregoing, MindTRAK is not responsible for the completeness or accuracy of any information hosted or provided by any third party or for deleting any such information. If you access a third-party website or content from the Website or App, you do so at your own risk, and you understand that this Terms of Service and Privacy Policy do not apply to your use of such sites or services. You expressly relieve us from any and all liability arising from your use of any third party website, service, or content. You agree that MindTRAK shall not be responsible for any harm, loss, or damage of any sort relating to your dealings with such third parties. If MindTRAK deletes or destroys your Account, MindTRAK will not have control over what third parties that had access to your information do with that information.

 

14. Maintenance and Support

 

MindTRAK is solely responsible for providing any maintenance and support services with respect to the Website or App when required from time to time or as required under applicable law. If you notice a problem or error on the Website or App you can report it to support@mindtrakgolf.com.

 

15. Third Party Terms of Agreement

 

You must comply with applicable third party terms of agreement when using the services of a third party contracted by MindTRAK.

 

16. Limitation of Liability

 

• MINDTRAK SUPPORTS POSITIVE MENTAL FOCUS ON THE GOLF COURSE; HOWEVER, WE ARE NOT A SUBSTITUTE OR SUPPLEMENT FOR MENTAL HEALTH SERVICES. MINDTRAK IS A GOLF TEACHING TOOL AND THE WEBSITE AND APP SHOULD ONLY BE USED IN THIS SPECIFIC CAPACTIY. IF YOU ARE EXPERIENCING SYMPTOMS OF DISTRESS, ANXIETY, DEPRESSION, OR ANY OTHER MENTAL OR PHYSICAL IMPAIRMENT, CONTACT THE APPROPRIATE MEDICAL PROFESSIONALS.

 

 

• MINDTRAK TAKES YOUR SECURITY AND PRIVACY VERY SERIOUSLY. WE UTILIZE A NUMBER OF PRECAUTIONS INCLUDING (GO COMMENT – NEED DARRELL TO COMPLETE THIS SECTION WITH APPROPRIATE REFEFENCES TO COMMUNICATIONS AND DATA ENCRYPTION, AMAZON WEB SERVICES, ETC ETC) MANAGED I.T. SERVICES, REMOTE MONITORING SOFTWARE, EXTERNAL BACKUPS, AND COMPUTER FIREWALLS. HOWEVER, MINDTRAK CANNOT AND SHALL NOT BE HELD RESPONSIBLE FOR ANY DAMAGE OR INJURY CAUSED DIRECTLY OR INDIRECTLY BY A DATA BREACH OR ANY OTHER LOSS OF YOUR DATA WHICH WAS OUTSIDE OUR CONTROL. THIS LIMITATION OF LIABILITY SHALL APPLY TO ALL YOUR DATA, WHETHER IN ELECTRONIC OR PHYSICAL FORM, AND REGARDLESS OF WHETHER SUCH DATA WAS PRODUCED BY MINDTRAK OR PROVIDED BY YOU.

 

• TO THE FULLEST EXTENT PERMISSIBLE BY LAW, EXCEPT FOR A BREACH OF THIS TERMS OF SERVICE, IN NO EVENT WILL MINDTRAK BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR LIKE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, DAMAGE TO PERSONAL PROPERTY, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL OR PERSONAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO (1) YOUR USE OR INABILITY TO USE MINDTRACK SYSTEM, (2) YOUR USE OF MINDTRAK’S ONLINE PROPERTIES, THE MINDTRAK WEBSITE, OR THE APP (3) YOUR INTERACTIONS WITH ANY OTHER WEBSITE OR APP USER (4) ANY INTERRUPTIONS TO THE WEBSITE OR APP, (5) DESTRUCTION, DAMAGE, OR LOSS OF YOUR DATA, OR (6) FROM ANY COMMUNICATIONS, INTERACTIONS, OR MEETINGS WITH MINDTRAK, ITS CONTRACTORS, STAFF, AGENTS, OR REPRESENTATIVES HOWEVER CAUSED.

 

• TO THE FULLEST EXTENT PERMISSIBLE BY LAW, OTHER THAN IN THE EVENT OF A FINDING OF GROSS NEGLIGENCE BY A BRITISH COLUMBIA COURT, MINDTRAK’S TOTAL LIABILITY TO YOU SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED THE TOTAL AMOUNT OF ALL MONIES PAID BY YOU TO MINDTRAKS.

 

• WITHOUT LIMITING AND IN ADDITION TO THE FOREGOING, NEITHER MINDTRAK NOR ANY OF ITS AFFILIATES, LICENSORS, OFFICERS, DIRECTORS, LICENSORS, EMPLOYEES, CONTRACTORS OR REPRESENTATIVES (COLLECTIVELY, THE “MINDTRAK PROVIDERS”) REPRESENT OR WARRANT (I) THAT THE SERVICES PROVIDED BY MINDTRAK WILL MEET YOUR REQUIREMENTS OR BE ERROR FREE; (II) THAT THE MINDTRAK WEBSITE, APP, MATERIALS OR SERVICES SOLD THROUGH THE MINDTRAK WEBSITE OR APP WILL ALWAYS BE AVAILABLE OR WILL BE UNINTERRUPTED, ACCESSIBLE, TIMELY, RESPONSIVE OR SECURE, (III) THAT THE WEBSITE OR APP ARE FIT FOR A PARTICULAR PURPOSE OR (IV) THAT YOUR EXPERIENCE WITH MINDTRAK’S SERVICES WILL MEET YOUR INDIVIDUAL EXPECTATIONS.

 

17. Indemnification

 

• YOU AGREE TO INDEMNIFY, DEFEND, RELEASE, AND HOLD HARMLESS MINDTRAK, ITS PARTNERS, LICENSORS, AFFILIATES, CONTRACTORS, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (COLLECTIVELY, THE “MINDTRAK PARTIES”) FROM ALL DAMAGES, LOSSES AND EXPENSES ARISING DIRECTLY OR INDIRECTLY FROM (A) ANY NEGLIGENT ACTS, OMISSIONS OR WILLFUL MISCONDUCT BY YOU OR YOUR REPRESENTATIVES, including, without restricting the generality of the foregoing, the INTENTIONAL misuse of THE WEBSITE, APP, or any other work produced on your behalf by MindTRAK, (B) YOUR USE OF MINDTRAK’S SERVICES OR PRODUCTS, (C) ANY BREACH OF THESE TERMS OF SERVICE BY YOU, (D) YOUR INTERACTIONS WITH ANY OTHER WEBSITE OR APP USERS AND/OR (E) YOUR VIOLATION OF ANY LAW OR OF ANY RIGHTS OF ANY THIRD PARTY.

 

• MINDTRAK RESERVES THE RIGHT, AT ITS OWN COST, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL FULLY COOPERATE WITH MINDTRAK IN ASSERTING ANY AVAILABLE DEFENSES. YOU AGREE THAT THE PROVISIONS IN THIS SECTION WILL SURVIVE ANY TERMINATION OF YOUR ACCOUNT, THE TERMS OF SERVICE, OR YOUR ACCESS TO THE MINDTRAK WEBSITE OR APP.

 

18. MindTRAK’s Name and Address

 

MindTRAK’s contact information for any end-user questions, complaints or claims with respect to MindTRAK’s Website is claims@mindtrakgolf.com.

 

19. Availability

 

• You are solely responsible for evaluating the fitness for a particular purpose of any downloads, programs and text available through the website or app. Redistribution or republication of any part of the Website or App or their content is prohibited, including by framing or any other means, without the express written consent of MindTRAK does not warrant that your access to the Website or App will be uninterrupted, timely or error free, although it is provided to the best of our ability.

 

• MindTRAK makes every reasonable effort to ensure that the content on the Website and App (the “Content”) are complete and However, MindTRAK does not warrant the quality, accuracy or completeness of Content on our Website or App. Such information is provided “as is” without warranty or condition of any kind and is provided with all faults and entirely at your sole risk as to quality, performance, accuracy and results. The Website or App may include inaccuracies, typographical errors, errors or omissions. Such errors, inaccuracies, typographical errors or omissions may relate to price or to product description or availability. In no event shall MindTRAK be liable for any damages whatsoever, including special, indirect or consequential damages, arising out of or in connection with the use or performance of Content available on the Website or App.

 

• The Website and App are operated and administered from our offices and servers located in the United States and Canada. MindTRAK makes no warranties or representations regarding the appropriateness or fitness for use of the Website or App in any other jurisdiction. You are solely responsible for compliance with local laws when using the Website or App.

 

20. General

 

• This Terms of Service will be governed by and construed in accordance with the laws of the Province of British Columbia, without regard to any conflict of laws or rules or principles which might refer to the governance or construction of the Terms of Service to the laws of another jurisdiction. Any action by or against either party arising out of the Terms of Service or the execution or performance thereof shall only be brought before and settled by the court of the province of British Columbia, Canada and to that effect the Parties herein elect domicile in the city and district of Kelowna, Province of British Columbia;

 

• If any of these terms are deemed invalid or unenforceable for any reason (including, but not limited to the exclusions and limitations set out above), then the invalid or unenforceable provision will be severed from these terms and the remaining terms will continue to

 

• This Terms of Service, the Privacy Policy, and any document incorporate by reference herein contain the entire understanding of the parties hereto and supersede all prior understandings of the parties hereto relating to the subject matter hereof.

 

• Failure of MindTRAK to enforce any of the provisions set out in these Terms or failure to exercise any option to terminate shall not be construed as a waiver of such provisions and shall not affect the validity of these Terms or any part thereof, or the right thereafter to enforce each and every

 

• This Terms of Service is not to be assignable except as may be contemplated hereunder but will enure to the benefit of and be binding upon each of the parties and their respective successors and permitted

 

• You acknowledge that the rights granted, and obligations made under this Agreement are of a unique and irreplaceable nature, the loss of which shall irreparably harm us, and which cannot be replaced by monetary damages alone, so that we shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation or exploitation of the Service or any advertising, content or other materials displayed or issued through or in connection with the Service.

 

• MindTRAK shall not be liable for any delay or failure to perform resulting from causes outside our reasonable control, including without limitation any failure to perform hereunder due to unforeseen circumstances or causes beyond our control, such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, shortages of transportation facilities, fuel, energy, labor or materials.

 

• Notwithstanding any other provisions of this Terms of Service, you acknowledge and agree that MindTRAK may obtain an injunction or other appropriate relief against you if you contravene or fail to comply with any provision of this Terms of Service in any way and you further agree that the provisions of this paragraph may be pleaded against you by way of estoppel or defence to a claim by you that an injunction or other appropriate relief should not be

 

• These Terms shall not be amended, modified, varied or supplemented except in writing and signed by duly authorised representatives of

 

• By using the MindTRAK Website or App, purchasing any items through MindTRAK, or using MindTRAK’s services you acknowledge and agree that you (i) have had sufficient time to review and consider this Terms of Service thoroughly; (ii) have read and understand the terms, the nature, and the consequences of this Terms of Service and the obligations hereunder; (iii) have been given an opportunity to obtain independent legal advice concerning the interpretation and effect of this Terms of Service.

 

21. Notification of Changes

 

MindTRAK reserves the right to change these Terms of Service from time to time as it sees fit and the continued use of the Website or App will signify your acceptance of any adjustment to these Terms. If there are any changes in how MindTRAK uses its users’ information, notification by e-mail or postal mail will be made to those affected by this change. You are therefore advised to re-read this statement on a regular basis.

 

22. Arbitration

 

In the event of any dispute relating to or arising out of your use of the Website or App, such dispute shall be settled and determined by a single arbitrator in accordance with the Arbitration Act of British Columbia. If you and MindTRAK are unable to agree on an arbitrator within fifteen (15) days after MindTRAK is made aware of the dispute, then the parties shall submit the matter to the ADR Institute of British Columbia (or its successor), which shall choose the arbitrator.  The decision of the arbitrator shall be final and binding without appeal on questions for law or fact or for any reason whatsoever.  Costs of the arbitration shall be shared equally between you and MindTRAK. In the event arbitration is not allowed by law, any other action must be brought only in the courts of British Columbia, Canada.

 

Privacy Policy

 

Last updated: DATE

 

This Privacy Policy describes MindTRAK Golf Inc.’s (“MindTRAK”) and its affiliates’ policies for collecting, using, and disclosing your information. You can view MindTRAK’s service offerings, including but not limited to our mobile app designed to help golfers improve their golf game by honing their mental fitness on the golf course (the “Service”), through our website www.mindtrakgolf.com (the “Website”), by email, on the iOS App Stores, and through third parties. This Privacy Policy governs your access to the MindTRAK Service, regardless of how you access it, and by using our Services you consent to the collection, transfer, processing, storage, disclosure and other uses of user data, materials, content, and information (“Information”) described in this Privacy Policy.

 

Herein, “MindTRAK” designates the MindTRAK mobile phone application (the “App”) as well as its website, www.mindtrakgolf.com, and the information systems that supports them.

 

Our Privacy Policy explains what Information we collect through the Website and App, why we collect it, and how we use that Information. It is our policy to respect the privacy of our Clients regarding any Information that we may collect while using our Service.

 

1. Terms of the Policy

 

• It is MindTRAK’s policy to comply with the privacy legislation within our jurisdiction. This Privacy Policy covers all activities subject to the provisions of Canada’s federal and British Columbia’s provincial privacy laws, and other jurisdictions not otherwise specifically addressed by this Policy. The MindTRAK App is available internationally, and we ensure compliance with all applicable privacy legislation in your jurisdiction. MindTRAK provides its services primarily to Canadian, US, and European markets, and ensures its compliance with all international privacy legislation, including but not limited to, the secure storage of user data, disclosing the collection and use of its user data, and only using its users’ data for purposes associated with or ancillary to MindTRAK’s Services.

 

• The rights and obligations contained in this Privacy Policy may not be available to all individuals or in all jurisdictions. You may contact our Privacy Officer for more information on this Policy at privacy@mindtrakgolf.com.

 

• MindTRAK does not knowingly collect personally identifiable information from any person under the age of 13. In the case we discover that a child under 13 has provided us with personal information, we immediately delete this from our servers. If you are a parent or guardian and you are aware that your child has provided us with personal information, please contact us so that we may remove their personal information.

 

• In order to help MindTRAK maintain and ensure that your personal information is accurate and up to date, you must inform us, without delay, of any change in the information you provided to MindTRAK.

 

2. Personal Information

 

• The personal information MindTRAK collects includes:

 

• your first and last name;
• physical address;
• phone number;
• email address;
• Gender;
• Your Age;
• How long have you played golf;
• Your handicap;
• How many rounds of golf you play per week;
• How many hours a week you practice hitting balls;
• How many hours a week you practice chipping;
• How many hours a week you practice your putting;
• Have you taken golf lessons and how many;
• Do you have a golf coach;
• Do you have a mental coach;
• Your level of education;
• How much you estimate you spend annually on golf;
• Your net worth;
• Is golf part of your vacation plans;
• What brand of golf balls you use;
• How often you buy a new set of golf clubs;
• How often you buy a driver;
• How often you buy a putter
• any other information required in accordance with applicable

 

(the “Data”)

 

• MindTRAK does not collect personal health or medical information. Do not provide your personal health or medical information to MindTRAK. The MindTRAK App and all MindTRAK services are intended only as a golf aid and teaching tool. We are not a substitute or supplement for any health care or mental health service. Personal health information includes but is not limited to social security number, medical records, patient reports, medical test results, and any other information which would reasonably be identified as health-related in nature.

 

• Upon downloading the App, you will be prompted to create a user account (an “Account”). In order to create an Account, you will need to provide certain information including your name, the clubs in your golf bag, golf courses you play, gender, date of birth, age, and skill level. MindTRAK may collect financial information from you as required to process payments in connection with our Services.

 

• Once your Account is created, your Data may be used for purposes including but not limited to:

 

• Provide the Services through the App or Website;
• Track your progress and results through the App or Website;
• Administer, bill, and collect funds in relation to your use of the App or Website;
• Protect against fraud or error;
• Communicate with you to fulfill orders and ensure satisfaction;
• Fulfill the terms of a warranty or agreement;
• Facilitate a refund or reimbursement;

 

• To help us monitor and improve the Website or App quality, we may collect your computer or mobile phone’s Internet Protocol (IP) address, browser type, the web page visited before you came to our websites, information you search for on the Website, locale preferences, transactions date and time, operating system information, as well as metadata concerning your Data such as software of origin and typology.

 

• MindTRAK will always seek your consent before or at the time that we collect personal information. MindTRAK may collect information about you from a third party if you have consented to that third party to release your information, for example, for payment or credit card processing. MindTRAK may also utilize the services of third parties and may receive personal information collected by those third parties in the course of the performance of the Services. MindTRAK requires all third parties to provide confirmation that they are authorized to release your

 

• MindTRAK is the sole and exclusive owner of the Data and will not sell, share, lease, or otherwise distribute or disclose the Data in any way other than as disclosed by this Policy. Data may be collected through the App or through multiple pages on the Website.

 

3. Cookies

 

• To ensure that our site is optimized for ease of use, we or our service provider(s) may use Cookies to collect standard information about your language preferences, when you visit the Site, your browser type and version, and other similar information. You can reset your browser to notify you when it has received a Cookie or refuse to accept Cookies. However, if you refuse to accept Cookies, you may limit your viewing and/or not be able to access all features on the

 

• MindTRAK or its hosting providers may collect traffic information and information about your visit in a log file on a server. Log file information may include, but is not limited to, internet protocol (IP) addresses, browser type, internet service provider (ISP), referring/exit pages, platform type, date/time stamp, and number of clicks. We or our hosting provider use this information to analyze trends, administer sites, track aggregations of users’ movements, and gather demographic information for aggregate use. IP addresses and other log file information are not connected to personally identifiable information.

 

4. Authorized Disclosure and Use

 

• MindTRAK discloses personally-identifying information (“Personal Information”) only to its employees, contractors and affiliated organizations and third parties that need to know that Personal Information to process it on MindTRAK’s behalf or to provide the Services, and that have agreed not to disclose it to Some of those employees, contractors and affiliated organizations and third parties may be located outside of Canada and/or outside your jurisdiction. By using MindTRAK’s Services, you consent to the disclosure of such information to them.

 

• MindTRAK may also use your Personal Information, specifically your contact information, including but not limited to your name and email address, with your consent for the following purposes:

 

• to send you the MindTRAK newsletter;
• to inform you of MindTRAK contests or surveys and provide associated notices and updates;
• to inform you of special offers from MindTRAK and its partners and select third parties and to provide associated notices and updates;
• to inform you of updates to the Website, App, and Services;

 

• Your personal information may also be used and disclosed:

 

• to comply with valid legal proceedings;
• to respond to a complaint or dispute;
• during an emergency situation where health or safety is at risk;
• to protect the rights of MindTRAK;
• to prevent fraud or abuse of MindTRAK or its Clients;
• to protect the safety of any individual from injury or death;
• as required by our professional advisors;
• where the personal information is publicly available; or
• with your consent.

 

In such event, only the minimum amount of personal information required to fulfill the contemplated purpose will be disclosed.

 

• Collected Information and Cookies may be used in aggregate form to assess how our Clients use our website, so that our partners may also understand how often people use our

 

• Unless specifically requested in writing, your corporation name may be cited in our Clients list. When you contact MindTRAK to obtain support, we may keep a record of your communication to help solve any issues you might be facing and reserve the right to publish it without any way to identify its origin, to help us support other Clients.

 

• If we are involved in a merger, acquisition, or sale of all or a portion of our assets, your Data and Information may be transferred as part of that We will notify you via email and a notice on our websites of any change in control or use of your Data or Information. We will also notify you of choices you may have regarding the Data and Information.

 

• We may share aggregated, non-personally identifiable information publicly and with our partners, such as publishers, advertisers or connected sites. For example, we may share information publicly to show trends about the general use of our We may also share or resell anonymized, aggregate data collected through the App to third parties. MindTRAK will never disclose data which may personally identify you without your prior written consent.

 

• You may change or withdraw your consent, or update your Personal Information or Data at any time, subject to legal or contractual obligations and reasonable notice by contacting our Privacy Officer in writing to privacy@mindtrakgolf.com. MindTRAK may terminate any services to you immediately if you withdraw your consent to the collection of Personal Information. MindTRAK may require that you provide to us sufficient information to identify yourself before we comply with any request regarding Personal Information or Data stored by MindTRAK. MindTRAK will use all reasonable efforts to respond to user requests in a timely manner.

 

5. Retention of Data and Information

 

• MindTRAK will retain your information for as long as needed to provide you the We use industry-standard encryption and security standards to protect your information. Once your account is closed, your Data will be deleted automatically within 30 days. If you wish to cancel your account, you may request the account cancellation by contacting us at myaccount@mindtrakgolf.com.

 

• MindTRAK may retain and use your information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements. Consistent with these requirements, we will endeavour to delete your information quickly upon request. Please note, however, that there might be latency in deleting information from our servers and backed-up versions might exist after deletion.

 

• MindTRAK will make every reasonable effort to respond to a written request relating to your Data within 30 days after receipt of such request.

 

6. European Union Privacy Policy

 

• This European Union Privacy Policy (the “EU Policy”) shall apply in addition to the Privacy Policy to all citizens of European Union Member States and, for such citizens, this EU Policy shall govern.

 

• All personal data transferred from EU citizens to non-EU countries will be done in compliance with the European Union privacy principle standards.

 

• If a specific purpose is stated on the App or Website for the collection of information from you, the information collected will only be stored and used for that stated purpose. Your information will not be used for any other purpose which is not stated explicitly on the Website or App.

 

• You may choose at any time to withdraw your consent for the use of your information. MindTRAK may use your information without consent only as necessary for legal claims or defenses, as needed for a medical purpose, as necessitated by a health or safety concern, or as required by law.

 

• Where MindTRAK desires to transfer your personal information to a third party that is acting as our agent we may do so if we first either ascertain that the third party subscribes to the European Union’s privacy legislation or is subject to a written agreement with such third party requiring that the third party provide at least the same level of privacy protection as is required by the relevant principles. You may not hold us responsible if a third party to which we transfer such information processes it in a way contrary to any restrictions or representations, unless MindTRAK knew or should have known that the third party would process it in such a contrary way and we have not taken reasonable steps to prevent or stop such processing.

 

• MindTRAK will not process personal information in a way that is incompatible with the purposes for which it has been collected or subsequently authorized by you. We generally assume that information that you give to us is accurate. If information you give to us is inconsistent with other information you give to us or with information that is available in public records or from other sources that MindTRAK is permitted by law or agreement to use, MindTRAK will use reasonable efforts to make sure that the information we process is accurate.

 

• MindTRAK may refuse to provide access to information to the extent that disclosure is likely to interfere with the safeguarding of important countervailing public interests, such as national security; defense; or public security. Other reasons for denying or limiting access are:

 

• Interference with execution or enforcement of the law, including the prevention, investigation or detection of offenses or the right to a fair trial;
• Interference with private causes of action, including the prevention, investigation, or detection of legal claims or the right to a fair trial;
• Disclosure of personal information pertaining to other individual(s) where such references cannot be redacted;
• Breaching a legal or other professional privilege or obligation;
• Breaching the necessary confidentiality of future or ongoing negotiations, such as those involving the acquisition of publicly quoted companies;
• Prejudicing employee security investigations or grievance proceedings;
• Prejudicing the confidentiality that may be necessary for limited periods in connection with employee succession planning and corporate reorganizations;
• Prejudicing the confidentiality that may be necessary in connection with monitoring, inspection or regulatory functions connected with sound economic or financial management; or
• Other circumstances in which the burden or cost of providing access would be disproportionate or the legitimate rights or interests of others would be violated.

 

7. Third Party Applications

 

• Our Privacy Policy does not apply to services offered by other companies or individuals, including products or sites that may be linked from our Services. Our Privacy Policy does not cover the information practices of other companies and organizations who advertise our services, and who may use cookies, pixel tags and other technologies to serve and offer relevant

 

• We may share your information with a third party application with your consent, for example for payment processing. We accept no responsibility or liability in respect of any third party. Please refer to the privacy policies published on any third party sites which you may access through our site before submitting personal information to them.

 

8. Enforcement

 

We regularly review our compliance with our Privacy Policy. When we receive formal written complaints, we will contact the person who made the complaint to follow up. We work with the appropriate regulatory authorities to resolve any complaints regarding the transfer of Data and Information that we cannot resolve with our Clients directly.

 

9. Security

 

The security of your Data and Information is important to us. We follow the generally accepted standards held within our industry to protect the information submitted to us, both during transmission and once we receive it. We store our data on internal, external, and encrypted online servers, protected with firewalls, malware protection, and multiple backup points. However, no method of electronic transmission or storage is 100% secure. Therefore, we cannot and do not guarantee absolute security. Unless specific contractual arrangements are made with you, MindTRAK may process your Data on a server located outside your jurisdiction.

 

10. Privacy Officer

 

The Privacy Officer for MindTRAK is Mr. Paul Winckers. Should you have any questions about this policy, including any complaints, you may contact our Privacy Officer at privacy@mindtrakgolf.com or by written notice delivered to Unit 13—880 Christina Place, Kelowna, BC, Canada, V1V 1S2.

 

11. Costs

 

MindTRAK reserves the right to charge a reasonable amount to respond to requests to produce transcripts, copies, or transfers of its Data. You will be notified prior to being assessed a charge for such services.

 

12. Changes to This Privacy Policy

 

Our Privacy Policy may change from time to time. We will not reduce your rights under this Privacy Policy without your explicit approval. We will post any privacy policy changes on our websites and, if the changes are significant, we will provide a more prominent notice (including, for certain services, email notification of Privacy Policy changes). We will also keep archived versions of this Privacy Policy for your review. By using the Website or App you acknowledge and agree to this procedure.

 

13. Governing Law

 

This Privacy Policy is governed by the laws of the Province of British Columbia and applicable laws of Canada and these laws apply to the use of the Services by you, notwithstanding your domicile, residency or physical location. The Services are intended for use only in jurisdictions where it may lawfully be offered for use.

 

14. Enforceability

 

If any term of this Privacy Policy is deemed invalid or unenforceable for any reason (including, but not limited to the exclusions and limitations set out above), then the invalid or unenforceable provision will be severed from this Privacy Policy and the remaining terms will continue to apply.

 

15. No Waiver

 

Failure of MindTRAK to enforce any of the provisions set out in this Privacy Policy or failure to exercise any option to terminate shall not be construed as a waiver of such provisions and shall not affect the validity of this Privacy Policy or any part thereof, or the right thereafter to enforce each and every provision.

 

16. Agreement to Terms of Policy

 

By using the Website and/or providing information to us, you accept and agree to the collection and use of your personal information for the purposes described hereinabove.

 

23. Arbitration

 

In the event of any dispute relating to or arising out of your use of the Privacy Policy, such dispute shall be settled and determined by a single arbitrator in accordance with the Arbitration Act of British Columbia. If you and MindTRAK are unable to agree on an arbitrator within fifteen (15) days after MindTRAK is made aware of the dispute, then the parties shall submit the matter to the ADR Institute of British Columbia (or is successor), which shall choose the arbitrator. The decision of the arbitrator shall be final and binding without appeal on questions for law or fact or for any reason whatsoever.  Costs of the arbitration shall be shared equally between you and MindTRAK. In the event arbitration is not allowed by law, any other action must be brought only in the courts of British Columbia, Canada.