TERMS OF USE (UAS)

This document outlines the terms and conditions ("Terms") governing the use of the Unmanned Aerial System ("UAS") products ("Products") provided by Guangzhou XAircraft Technology Co. Ltd. ("XAG" or "we"). By activating the Products via the mobile applications provided by XAG ("XAG Apps") and selecting “I Agree”, you ("User" or "you") confirm that you have read, understood, and consent to adhere to the following terms and conditions (the “Product Terms”), the Software Terms of Use, and the XAG Privacy Policy (collectively, these “Terms”).

PLEASE NOTE THAT, IN ACCORDANCE WITH THE DETAILS IN THESE TERMS:

BINDING ARBITRATION AND NO CLASS ACTION: Subject to the Australian specific provisions below, these Terms stipulate that all disputes between you and XAG will be resolved by binding arbitration. You agree to forgo your right to go to court to assert or defend your rights under these Terms, except for matters that may be taken to a small claims court. Your rights will be determined by a neutral arbitrator, not a judge or jury, and your claims cannot be brought as a class action. Please review Section 13 (“Dispute Resolution and Arbitration”) of the Product Terms for more details.

NO WARRANTIES AND LIMITED LIABILITY: Subject to the Australian specific provisions below, the Product is provided “as-is” and without warranties of any kind other than those provided in the XAG Limited Warranty, and XAG's liability to you is limited. Please review Section 9 (“Warranty Disclaimers and Limitations”) and Section 10 (“Limitation of Liability”) of the Product Terms for more details.

PRODUCT IS NOT A TOY BUT A COMPLEX AIRCRAFT: While the product utilises advanced technology, incorrect use could lead to personal injury or property damages. Please read the Pilot Operating Handbook, User Manual, Quick Start Guide, and any other materials related to the Product before your first use. These documents are included in the Product package and are also available online on the XAG Product page at https://www.xa.com/en/service/downloads.

LIMITED LICENSE: XAG grants you a limited, non-sublicensable license to access and use the Product for their intended purposes only. YOU WILL NOT “HACK”, “CRACK”, MODIFY THE PRODUCT INCLUDING ITS FLIGHT SAFETY FEATURES. YOU WILL NOT OPERATE THE PRODUCT OVERRIDING THE FLIGHT SAFETY LIMITATION. ANY USE OF THE PRODUCT OTHER THAN AS SPECIFICALLY AUTHORIZED HEREIN, WITHOUT THE PRIOR WRITTEN PERMISSION OF XAG, IS STRICTLY PROHIBITED AND WILL TERMINATE YOUR RIGHT TO ACCESS YOUR ACCOUNT OR USE THE PRODUCT. Please review Section 4 (“Your Obligations”) of the Product Terms for more details.

IF YOU ARE NOT ELIGIBLE OR DO NOT AGREE TO ANY OF THESE TERMS, THEN YOU MAY NOT USE THE PRODUCT. If you return the Product in accordance with the XAG Refund Policies, you may be entitled to a full refund.

1. ELIGIBILITY

By accepting these Terms, you confirm that: (a) you are at least 18 years of age, or if you are below 18 (or a minor in your jurisdiction), your parent or legal guardian has comprehended and consents to these Terms on your behalf; (b) you are in possession or will possess an XAG account when you activate the Product; (c) your activation and usage of the Product adhere to all applicable laws and regulations; and (d) if you are accepting these Terms or using the Product on behalf of an entity, company, organization, or individual, you have been granted authority to bind that organization or individual to these Terms, and you agree to accept these Terms on behalf of that organization or individual.

2. FEEDBACK

Should you offer feedback, ideas, or suggestions concerning issues with, or potential enhancements or modifications to, the Product ("Feedback"), you hereby grant XAG an unrestricted, everlasting, non-revocable, non-exclusive, fully-paid, royalty-free license to utilise such Feedback for any purpose with no obligation to compensate or notify you regarding such exploitation.

3. PROPRIETARY MATERIALS

The visual elements, design, graphics, software, firmware, services, and all other aspects of the Product (“Materials”) provided by XAG are protected by intellectual property laws and other regulations. All Materials in the Product are the property of XAG or our third-party licensors. XAG reserves all rights to the Materials not expressly granted in these Terms.

The User Manuals, instructions, and other materials regarding product functionality and specifics are XAG's confidential Materials. Users are granted a license to use these materials strictly for operating and using XAG Products. Unless otherwise authorised in these Terms, you are not permitted to use or allow others to use the Materials, in whole or in part, through reproduction, transfer, or sale of the Materials.

4. YOUR OBLIGATIONS

By using the Product, and by agreeing to these Terms, you confirm that your use of the Product and your participation in events or activities relating to your use of the Product are in compliance with all relevant laws, regulations, and statutes, and that you will only use the Product as expressly allowed under these Terms or as authorised by XAG. You further agree not to:

• Attempt to infiltrate, decompile, modify the Product or the XAG Apps, or obtain, disclose, or publish source code, bypass or circumvent measures implemented to prevent or limit access to any area, content, or code of the Product;
• Connect or operate the Product with unauthorized third-party devices or software;
• Manipulate XAG's geo-fencing system, flight altitude limitations, or alter any other safety features of the Product.

FAILURE TO ADHERE TO THESE OBLIGATIONS MAY LEAD TO TEMPORARY OR PERMANENT SUSPENSION OF YOUR PRODUCT OR YOUR ACCOUNT AND LOSS OF ACCESS TO ASSOCIATED CONTENT.

5. COMPLIANCE AND SAFETY

5.1 The User shall not use the Products in a manner that contravenes any Commonwealth, state, territorial, or local law, including but not limited to the Civil Aviation Safety Regulations 1998 (Cth) (“CASA Regulations”), as amended from time to time.

5.2 The User acknowledges that, in accordance with the CASA Regulations, Products capable of flight:

(a) shall not be operated for commercial purposes without a licence from the Civil Aviation Safety Authority; and

(b) shall not be operated in certain areas, at certain heights, or within certain proximities of other people.

5.3 All Products are accompanied by safety instructions and, in some cases, manuals containing information relevant to the safe operation of the Products. By purchasing the Products, the User agrees to adhere to these safety instructions and any safety information contained in any product manual.

6. CONDITIONS OF USE

6.1 The User shall not use the Products in any manner which is unlawful, threatening, or otherwise inappropriate.

6.2 The User shall ensure that the capture or use of any data or information obtained through the use of the Products is not illegal or prohibited by any applicable law.

7. DAMAGE AND TOTAL LOSS TO UAS

7.1 The User acknowledges that:

(a) the correct operation of the Products may be affected by radiofrequency (“RF”) interference, including but not limited to RF emissions from mobile telephone towers;

(b) the use of the Products may be adversely affected by RF and/or structural impediments such as buildings and bridges; and

(c) certain Products that are capable of flight have been known to experience a “flyaway” issue as a result of interference by RF or structural impediments.

7.2 The User acknowledges that they fly any UASs at their own risk. XAG is not responsible for any total loss of, or damage to, the Products due to any Interferences.

8. INDEMNIFICATION

You accept responsibility for your use of the Product. You agree to defend and indemnify XAG, including its officers, directors, employees, consultants, affiliates, subsidiaries, and agents (collectively referred to as the "XAG Entities"), against all claims, liabilities, damages, losses, and expenses, including reasonable legal fees and costs, arising out of or in connection with: (a) negligent or alleged negligent use of the Product; (b) any breach of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) any infringement of any third-party rights, including intellectual property rights, or rights of publicity, confidentiality, property, or privacy; or (d) any disagreement or issue between you and any third party. XAG reserves the right, at our expense, to take over the exclusive defence and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations for that matter), and in such cases, you agree to cooperate with XAG in defending such claims.

9. WARRANTY DISCLAIMERS AND LIMITATIONS

Save for the express provisions stated in XAG's Limited Warranty, which can be accessed at https://xag-au.com/repair-service-online, our products, including any materials and content accessible through the product, are provided on an "as is" and "as available" basis. These products are not subject to any warranty or condition, express or implied.

XAG hereby disclaims all warranties not specifically outlined in our Limited Warranty. These disclaimers apply to all product-related aspects, encompassing the product itself, its accessories, and any associated materials. The disclaimers extend to, but are not limited to: (a) any implied warranties of merchantability, fitness for a particular purpose, title, quiet enjoyment, or non-infringement, and (b) any warranties emerging from trade usage, course of dealing, or course of performance.

XAG does not guarantee, beyond what is assured in the Limited Warranty, that our products, their accessories, or any component of these, or any materials will be delivered in a flawless, secure, or uninterrupted manner, or that they will be devoid of errors, viruses, or other harmful components. We also do not assure correction of any such issues.

9.1 STATUTORY GUARANTEES

Our products and services are subject to guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a refund or replacement in the case of a major failure, and compensation for any other reasonably foreseeable loss or damage. If the products or services fail to meet acceptable quality, and the failure is not considered a major failure, you have the right to have the goods repaired or replaced.

These guarantees confirm that (a) the product is delivered with due care, skill, and technical proficiency, taking all necessary steps to avoid loss and damage; (b) the product is fit for the purpose or provides the results agreed upon by you and XAG; (c) the product is delivered within a reasonable timeframe.

9.2 DISCLAIMER

This section - DISCLAIMER, is not intended to, and does not, limit your rights and statutory guarantees as set forth in Section 9.1 (“Statutory Guarantees”). Our products and all associated materials and content are offered "as is" and "as available", devoid of any express or implied warranties or conditions.

XAG disclaims all warranties, barring those explicitly laid out in the Limited Warranty. This applies to the product, product accessories, and all related materials, including any warranty arising from the course of dealing, usage, or trade. Except for what is stipulated in the Limited Warranty, XAG makes no assurances that the product, product accessories, or any part of the product, or any materials will be delivered in an uninterrupted, secure manner, free of errors, viruses, or other harmful elements. We also do not assure that such issues will be corrected.

Please be advised that no advice or information, whether verbal or written, procured by you from the product, product accessories, or any materials, will establish any warranty regarding any of the XAG entities or the product that is not explicitly stated in these terms. You bear all risk for any damage that may result from your usage of or access to the product, product accessories, and any materials. It is your responsibility to understand and agree that you use the product at your discretion and risk. You are solely responsible for any personal injury, death, damage to your property, or the loss of data that results from your use of or inability to use the product.

The benefits provided to the consumer by the warranty are supplementary to other rights and remedies available to the consumer under the law, including the statutory guarantees as detailed in Section 9.1.

10. LIMITATION OF LIABILITY

EXCEPT FOR OUR OBLIGATIONS TO YOU UNDER THE STATUTORY WARRANTIES AS OUTLINED IN SECTION 9.1 (WHICH ARE NOT SUBJECT TO LIMITATION OR EXCLUSION):

NO CIRCUMSTANCE SHALL RENDER XAG ENTITIES LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, EXTRAORDINARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM LOSS OF PROFITS, GOODWILL, OR ANY OTHER FORM OF INTANGIBLE LOSS) THAT ARISE FROM OR ARE CONNECTED TO YOUR USE OR INABILITY TO USE THE PRODUCT, PRODUCT ACCESSORIES, OR ANY ASSOCIATED MATERIALS, OR FLIGHT ENVIRONMENT DATA. THIS IS APPLICABLE WHETHER THE LIABILITY IS PREDICATED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER FORM OF LEGAL THEORY, AND REMAINS TRUE IRRESPECTIVE OF WHETHER XAG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

EXCLUDING THE PROVISIONS OF SECTION 13.4(iii), THE TOTAL CUMULATIVE LIABILITY OF XAG TO YOU FOR ALL CLAIMS THAT ARISE FROM OR ARE RELATED TO THE USE OR INABILITY TO USE ANY PORTION OF THE PRODUCT, OR THAT OTHERWISE PERTAIN TO THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL BE CONFINED TO THE SUM OF $100.

CERTAIN JURISDICTIONS DO NOT SANCTION THE EXCLUSION OR RESTRICTION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE, THE AFOREMENTIONED LIMITATION MAY NOT BE APPLICABLE TO YOU.

EVERY PROVISION OF THESE TERMS THAT DEMONSTRATES A LIMITATION OF LIABILITY, DENIAL OF WARRANTIES, OR EXCLUSION OF DAMAGES IS DESIGNED TO ALLOCATE THE ASSUMED RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS RISK ALLOCATION IS A FUNDAMENTAL ASPECT OF THE AGREEMENT BETWEEN THE PARTIES. EACH SUCH PROVISION IS DISTINCT AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS ENUMERATED IN THIS SECTION 10 (“LIMITATION OF LIABILITY”) WILL BE ENFORCED TO THE FULLEST EXTENT PERMITTED BY LAW, EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

11. JURISDICTION AND GOVERNING LAW

The laws of the State of New South Wales, Australia, not taking into account its principles of conflict of laws, will govern these Terms. Should any litigation or court proceeding become permissible under these Terms, both you and XAG consent to the exclusive and personal jurisdiction of the courts situated within the State of New South Wales, Australia for the resolution of any disputes. For the avoidance of any doubt, it is specified that Section 13 (“Dispute Resolution and Arbitration”) will not pertain to cases suitable for the small claims court or to issues in connection with your rights and statutory guarantees as highlighted in Section 9.1 (“Statutory Guarantees”).

12. OVERARCHING PRINCIPLES

These Terms, together with all other agreements that are explicitly incorporated by reference, establish the complete and exclusive understanding and agreement between you and XAG concerning your usage of the Product. Except where expressly granted herein, amendments to these Terms can only be effectuated through a written agreement authenticated by authorized representatives of all parties involved in these Terms. You are prohibited from assigning or transferring these Terms or any rights under these Terms, either in entirety or in part, by operation of law or otherwise, without our prior written consent. We retain the right to assign these Terms at any moment without any requirement for notification or consent. Any failure on our part to enforce any provision will not affect our right to enforce it at any other time thereafter. Moreover, a waiver by us of any violation or default of these Terms, or any of its provisions, will not serve as a waiver of any subsequent breach or default or a waiver of the provision itself. The use of section headers in these Terms is merely for convenience and will not impact the interpretation of any provision. Should any part of these Terms be deemed invalid or unenforceable, the ineffectual part will be executed to the fullest extent possible, with the remaining parts remaining in full force and effect. Upon termination of these Terms, Sections 1 and 3-13 of the Product Terms will persist, along with any other provisions designated as surviving the termination of the Software Terms of Use, the XAG Privacy Policy, and any other relevant terms and conditions in such agreements.

13. DISPUTE RESOLUTION AND ARBITRATION

13.1 OVERALL INTENT

In the interest of attaining a resolution to conflicts between yourself and XAG in a prompt and cost-effective manner, it is mutually agreed that every dispute arising in connection with these Terms will be settled via binding arbitration. Arbitration is notably less formal than court proceedings. It employs an impartial third-party arbitrator as opposed to a judge or jury and may allow for more concise discovery than in court. It is also subject to limited review by courts. Arbitrators can grant the same damages and relief that a court can award. With the exception of the conditions delineated in Section 13.2 (“Exclusions), this agreement to arbitrate disputes encompasses all claims originating from or relating to any aspect of these Terms, irrespective of whether the basis is contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. You acknowledge and concur that, by entering into these Terms, both you and XAG waive the right to a trial by jury or to participate in a class action.

13.2 EXCLUSIONS

Despite Section 13.1 (“Overall Intent”), nothing within these Terms shall be interpreted as surrendering, obstructing, or in any way limiting the right of either party to: (a) initiate an individual action in a small claims court; (b) assert claims related to your rights and statutory guarantees as provided in Section 9.1 (“Statutory Guarantees”); (c) pursue injunctive relief in a court of law; or (d) file suit in a court of law to confront an intellectual property infringement claim.

13.3 NOTIFICATION AND PROCEDURE

Prior to initiating arbitration, a party must first deliver a written notice of the dispute to the other, using certified mail (signature required), or in the absence of a current physical address, by electronic mail ("Notice"). XAG's address for Notice is: XSpace, 115 Gaopu Rd, Guangzhou, P.R.C. The Notice should: (a) describe the nature and foundation of the claim or dispute; and (b) propose the specific relief sought ("Demand"). Both parties will attempt, in good faith, to resolve the claim directly. However, if an agreement is not reached within 30 days of receipt of the Notice, either you or XAG may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or XAG should not be disclosed to the arbitrator until after a final decision and award has been issued, if any. Should the dispute be ultimately resolved through arbitration in your favour, XAG will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by XAG in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.

13.4 RESTRICTION ON CLASS ACTIONS

BOTH YOU AND XAG AGREE THAT CLAIMS MAY ONLY BE BROUGHT AGAINST THE OTHER IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Unless both you and XAG consent otherwise, the arbitrator may not consolidate the claims of more than one individual and may not preside over any form of a representative or class proceeding.

13.5 CHANGES TO THIS ARBITRATION CLAUSE

Should XAG make any future modifications to this arbitration clause, other than a change to XAG's address for Notice, you may reject such changes by sending us written notice within 30 days of the modifications to XAG's address for Notice, resulting in the immediate termination of your account with XAG. This arbitration clause, as in effect immediately prior to the changes you rejected, will prevail.

13.6 ENFORCEABILITY

Should Section 13.4 (“Restriction on Class Actions”) be determined to be unenforceable, the parties agree that the exclusive jurisdiction and venue outlined in Section 11 (“Jurisdiction and Governing Law”) will govern any action arising out of or related to these Terms.

14. CONTACT INFORMATION

The Product is furnished by GUANGZHOU XAIRCRAFT TECHNOLOGY CO. LTD. and its affiliated entities, with the primary location at XSpace, 115 Gaopu Rd, Guangzhou, P.R.C.. You may contact us by dispatching correspondence to the aforementioned address or by emailing us at oversea@xa.com.