terms of service
- Scope and Acceptance
You must complete the registration form on the Site and accept these Terms before you may use the Service. If you do not accept these Terms or do not want to become a User, do not access, view, or otherwise use the Site or the Service or any TaylorMade-branded webpage, information or services and do not register with the Service or click any “Sign up” offers, “Join” offers, or similar links or offers available on or through the Service.
You acknowledge that you have read and understood the terms and conditions of this TOS and that you agree to be bound by all of its provisions. By clicking on any button or checking box at which a reference to your acceptance of these Terms appears, you also consent to use electronic signatures and acknowledge that your click of such button (e.g., “Sign-up,” “Join Now,” “Upgrade,” etc.) is evidence of your electronic signature.
- Description of the Service
2.1 General. The Service we provide consists of access to our online software application at the Site which generally allows users to input, track, and manage golf fitting, performance, and equipment information. For purposes of these Terms the “Service” means and is limited to the online software application we make available to you through our Site, and the features and functionality associated with that application which pertain to the particular Account for which you have registered. The Service as that term is used in these Terms does not extend to or include any Third Party Services (defined below), services, features or functionality associated with other Accounts for which you have not registered, or any enhancements or updates that are not made generally commercially available to all Users.
2.2 Your Content. Subject to these Terms, we may, in our sole discretion, collect certain data and information regarding your golf equipment, equipment fit, and performance, or allow you to upload or post content, data and information. Except for Account information and information you provide in connection with your registration for an Account, other content, graphics, pictures and information that you post to or upload into the Service is referred to as “Your Content.” You understand that Your Content does not include Content (as defined in Section 13.1 below) or any Account information, information you provide in connection with your registration for an Account, other data and information that we collect regarding your use of or interaction with the Service, or data and information that we derive from your use of or interaction with the Service. All data, information content, graphics, pictures and files shared on the Site and/ or related to the use of Service, including Your Content, is subject to these Terms and may be removed, modified, hidden, or disabled, in whole or in part, without notice or obligation to you. You understand that any content or information, including Your Content, that you upload, post or share may be visible or otherwise accessible to our Affiliates, service providers, business partners, licensors, and all other Users and visitors depending on the settings, if any, you apply to Your Content at the time it is uploaded, posted or shared. We are not responsible for moderating, reviewing or ensuring that Your Content is properly redacted and sanitized for sharing. It is your sole responsibility to ensure that any of Your Content is reviewed by you, sanitized, and, where applicable, redacted, to make it suitable for sharing and public viewing. You understand that upon any cancellation, termination, or revocation of your Account, that your access to Your Content will also be terminated and extinguished immediately at that time or, in certain circumstances, within the period of time, if any, set forth in Section 19.3.2 below. If you fail to maintain independent copies of Your Content before any cancellation, termination, or revocation of your Account, or if you fail to retrieve Your Content via the Service by that date or, if applicable, the deadline specified in Section 19.3.2 below, then you understand that we are not responsible for any loss, deletion, removal, destruction, or inaccessibility of all or any portion of Your Content.
2.3 Access. You understand that we do not control Third Party Services and therefore cannot and do not predict, monitor, guarantee or address any unavailability or accessibility issues concerning Third Party Services. Your use of any Third Party Services via our Site or to access and use the Service is subject to the applicable third party terms and your registration with, enrollment in and, where required, payment for such Third Party Services. TaylorMade may use third party devices and technologies such as GEARS or TrackMan to capture and record your golf performance data. Please be advised that any such third party devices and software are operated by their respective owners that process the collected data independently from TaylorMade.
- Requirements for Use
3.1 Account Creation.
3.1.1 Requirements for Use. To obtain access to the Service, you are required to register for and obtain an Account with us by completing the online sign-up form and designating a username (if applicable) as well as a password. Your Account privileges are governed by the Account for which you have registered. When registering as a User you are confirming that you meet all of the Requirements for Use. Use of the Service and registration to be a User is void where prohibited. By using the Service, you represent and warrant that: (a) all registration information you submit is truthful and accurate; (b) you are thirteen (13) years of age or older at the time of registration and, if you have not reached the age of majority in your province, territory, or state or residence at the time of registration, your parent or legal guardian consents to your registration with and use of the Service; (c) you have full power and authority to enter into the Terms; (d) you intend to use the Service for the purpose for which it was intended and not for the purpose of gaining competitive intelligence, developing products competitive to the Service, advertising to or about the Service, or scraping or soliciting any information from the Service about our Users; and (e) your use of the Service does not violate any applicable laws or our published terms or policies (collectively, “Requirements for Use”). You understand that any Account you register for is subject to your satisfaction of and ongoing compliance with these Requirements for Use. If we discover now or in the future that you do not meet or have not met any one of the Requirements for Use, You understand and agree that your Account and/or your access to the Service may be temporarily or permanently suspended, or your Account and access to the Service may be revoked or terminated immediately.
3.1.2 Intended for Users at least age 13. Accounts may only be created by individuals 13 years of age or older. If we discover now or in the future that you are not 13 years of age or older, you understand and agree that your Account and/or your access to the Service may be revoked or terminated immediately.
- Changes to Terms
We reserve the right to modify or replace these Terms, in whole or in part, at any time and at our sole discretion. The date of the last change or update to any component of the Terms shall be referenced therein, and any changes made will be effective upon posting of the revised version of the applicable Terms. We encourage you to check the date of these Terms whenever you visit or use the Service to see if it has been updated since your last visit. Your continued access or use of the Service or any portion of the Service after we post any changes to the Terms constitutes your acceptance of such changes. If you do not agree with any updates to or any updated version of the Terms then you understand we are not obligated to continue to provide access to the Service and you must cancel and stop using the Service.
For Users in Australia, if we change these Terms in a way which we consider will be materially detrimental to you, we will notify you by email (using the email address you have provided to us, if any) of the relevant changes. Use of the Service.
4.1 Permission to use. Subject to your acceptance of and compliance with the Terms, satisfaction of the Requirements for Use, and registration with the Service, you shall be permitted to access and use only those features of the Service which apply to your Account, on a: non-exclusive, personal, non-transferable basis, solely in strict compliance with these Terms and all applicable laws and solely during the term of your Account, but not otherwise. Any access to our Service is provided for your personal, non-commercial use only during the period of your Account. You agree that you will not take any action to circumvent the permission and access that has been granted to you under your Account or sublicense, re-sell, or lease all or any portion of your Account privileges. All rights not expressly granted under these Terms are reserved by TaylorMade and its Affiliates and licensors. “Affiliates” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with TaylorMade, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 20% or more of the voting equity securities or other equivalent voting interests of the entity.
4.2 Account Security. Each Account is personal to you and only you may use your Account on the Service. You are entirely responsible for maintaining the confidentiality of your Account password and you agree not to disclose your password to any third party or let any third party use the Service on your behalf. You must contact us immediately at firstname.lastname@example.org if you suspect misuse of your Account or become aware of any actual or potential security breach, including but not limited to an unauthorized disclosure or use of your username and password, unauthorized access to your Account, or the Service. In that event, please contact us directly by sending us a message to email@example.com. You acknowledge that if you wish to protect your transmission of Your Content to us, it is your responsibility to use a secure encrypted connection to communicate with the Service. Please be aware that you are responsible for any activity occurring through your Account, whether or not you actually authorized that activity. When you have notified us of an actual or suspected security breach, we will take appropriate measures to address the issue. You understand that we cannot be responsible if you fail to inform us of an actual or suspected security breach. TO THE EXTENT PERMITTED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM ANY UNAUTHORIZED USE OF YOUR ACCOUNT unless directly arising from TaylorMade’s negligence.
4.3 Physical Activity Notice.
4.3.1 Physical Activity Notice. Use of the Service may include features that promote physical activity. You understand that there are risks involved with engaging in physical activity, and agree that before using the Service, you will consult with your medical professional.
4.3.2 No Medical Advice. TaylorMade provides the Service for you to input, track, manage and analyze information about your golf equipment and fitting and performance. The Service is not intended to diagnose, treat, cure or prevent any physical condition or disease. THE SERVICE DOES NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL ADVICE OR OPINIONS. TaylorMade is not a licensed medical professional and we are not in the business of providing medical advice or opinions.
4.3.3 Use at Your Own Risk. TaylorMade provides the Service with the objective of offering helpful information regarding your golf equipment, fit, and performance; however, as the information can only be provided in general terms based on the information you supply we make no representation or warranty of any kind regarding the accuracy of any Content, information, services or recommendations on our Site or available on or through our Service. You understand that any golf equipment, fitting, and equipment data may be unavailable, inaccurate, or incomplete. In addition, you understand that by relying on the Service or any Content, you do so solely at your own risk.
4.4 Fitting Events. IF YOU ATTEND A FITTING EVENT USING THE SERVICES OR AT WHICH THE SERVICES ARE USED, YOU UNDERSTAND AND AGREE THAT SUCH EVENTS ARE INHERENTLY RISKY, THAT YOU ATTEND AT YOUR SOLE RISK, AND ACCEPT ANY AND ALL RISKS OF LOSS, INJURY OR DEATH. AS LAWFUL CONSIDERATION FOR BEING PERMITTED TO PARTICIPATE IN AND BE PRESENT AT THE FITTING EVENT, YOU AND YOUR ASSIGNEES, HEIRS, GUARDIANS AND LEGAL REPRESENTATIVES, HEREBY FULLY RELEASE FROM ANY LIABILITY AND AGREE NOT TO SUE, MAKE A CLAIM AGAINST, OR PROSECUTE TAYLORMADE OR ITS AFFILIATES FOR ANY LOSS, INJURY OR DEATH CAUSED BY, RESULTING FROM, OR IN ANY WAY RELATING TO YOUR PARTICIPATION IN OR PRESENCE AT THE FITTING EVENT, WHETHER OR NOT SUCH LOSS, INJURY OR DEATH WAS CAUSED BY ALLEGED NEGLIGENCE. WHERE PROHIBITED BY LAW, OR IF YOU ARE A CONSUMER RESIDENT IN THE UK THEN THIS CLAUSE OR THESE TOS WILL NOT LIMIT OR EXCLUDE TAYLORMADE’S LIABILITY FOR DEATH OR PERSONAL INJURY DIRECTLY CAUSED BY OUR NEGLIGENCE.
4.5 Account Types. The Service currently offers free account types, referred to as your “Account.” You understand that we reserve the right to add or modify the account types at any time and at our sole discretion.
- Free Account
“Free Account,” as defined in this section, is a User account with the Service that includes most features the Service has to offer. The features available in a Free Account are determined at our sole discretion. You also understand that except as otherwise expressly set forth in this Section 6, we make no commitments whatsoever with respect to the features or functionality available in a Free Account, and we reserve the right to change the features and functions available in a Free Account at any time without notice and at our sole discretion, including, without limitation, the elimination or substitution of features or Content, reductions or removal of access to certain features or Content. For Users in Australia, if we change the features and functions available in a Free Account in a way which we consider will be materially detrimental to you, we will notify you by email (using the email address you have provided to us, if any) of the relevant changes.
- Paid Account
We reserve the right to charge fees for certain features and functionality in the Service, and/or offer Accounts that are subject to a fee (collectively “Paid Accounts”) at any time at our sole discretion provided that details of the fees are notified to you in advance and you have the choice of either accepting the fees or not using the services or where the services are already being used you have the right to terminate the Services. If you continue to use the services once the fees have been advised to you then you will be deemed to have accepted responsibility to pay such fee for the services.
- Subscription Terms
No subscription term or commitment is offered for any Free Account.
- Service Availability
The Service is intended for use only in the United States, its territories and possessions, Canada, the United Kingdom and Australia.
- Acceptable Use
9.1 Your Responsibilities. By registering as a User and accessing the Service, you understand that you are and will remain responsible for the following:
(a) Compliance with these Terms, including all terms and conditions referenced in these Terms;
(b) Compliance with applicable laws and regulations including where applicable provincial, territorial, state, federal and international laws and regulations in using the Service;
(c) Using commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notifying us promptly of any such unauthorized access or use;
(d) Any and all activity occurring under your Account;
(e) Ensuring your Account information is accurate, truthful and current;
(f) Compliance with the Requirements for Use;
(g) Registering for and, where applicable, paying for access to any Third Party Services you choose to use which may be made available to you on or through our Site;
(h) Compliance with all third party terms pertaining to such Third Party Services;
(i) Obtaining rights to use any products, software, internet connectivity or web browser that may be necessary to use the Service; and
(j) Any social media sharing, by you, of the Service or information, content, or other material you download from or contribute to the Service either to or from our Site, via any third party social media services (e.g., Twitter, Facebook), is subject to the Terms and the terms and policies of any sharing to or from those social media Third Party Services.
9.2 Restrictions on Use. By registering as a User and accessing the Service, you agree that you will not:
(a) Sell, resell, rent or lease access to the Service or all or any portion of your Account or Account privileges;
(b) Use the Service for storing or transmitting infringing, libelous, or otherwise unlawful or tortious material (regardless of whether such material is included within Your Content, either with or without your knowledge);
(c) Use the Service to knowingly store or transmit malicious code, viruses, Trojan horses, or worms that may damage or harm our computer systems or those of our Users, business partners or any Third Party Services;
(d) Interfere with or disrupt the integrity or performance of the Service or any data it may contain;
(e) Interfere with other Users’ use or enjoyment of the Service;
(f) Use the Service to access, acquire or otherwise obtain data to which you are not legally entitled;
(g) Attempt to gain unauthorized access to the Service or its related systems or networks;
(h) Reverse engineer the user interface design, workflow, or any features of the Service;
(i) Use or attempt to use the Service for the purpose of creating a product or service that competes with the Service or with the intent to direct users to a service that is competitive to the Service;
(j) Modify, publish, transmit, reproduce, create derivative works from, distribute, display, or incorporate into another website the Service, in whole or in part;
(k) Build a competitive service or copy screens, features, functions, interfaces or graphics of the Service; or
(l) Use the Service to infringe the copyrights or other intellectual property rights of any third parties.
9.3 Violations of Acceptable Use. In the event of any violation of this Section 10, we reserve the right to do any or all of the following, as we determine in our sole and absolute discretion immediately and without notice or obligation to you: (a) refuse and/or remove any or all of Your Content, (b) temporarily or permanently suspend your Account and access to your Account, (c) temporarily or permanently revoke your Account and access to your Account, (d) terminate your Account.
- Third Party Products and Services
Certain features, functions, services and products may be offered through the Service, in whole or in part, by third parties. As a convenience for our Users, our Service provides links to other websites maintained by third parties as well as functionality supporting or facilitating access to or use of third party products, services and software, such as uploading files directly into certain cloud-based file storage services (collectively, “Third Party Services”). When you engage a third party’s website or service which is linked to, facilitated through or provided via our Service, or use a third party’s product, you are interacting with the third party and not with us. These Third Party Services are not under our control and we are not responsible for the contents, functionality or performance of any Third Party Services, or any changes or updates to such Third Party Services maintained by the applicable third parties. We are also not responsible for any interoperability issues between the Service and such Third Party Services by or through which you may access the Service. Posting of a link to or facilitating or supporting functionality that facilitates access to or use of Third Party Services is not and does not constitute an endorsement of that Third Party Service (or any of the products, services or other materials offered through such Third Party Service) by us, our Affiliates or licensors, regardless of whether or not the link is associated with a third party advertisement carried by our Service. Accordingly, we are not responsible for the data privacy practices of such Third Party Services nor security of any data or information you may share with or via such Third Party Services, and to the extent permitted by law make no warranties or conditions, express or implied, as to any Third Party Services or the products or services they provide. You also understand that your use of any Third Party Services may be subject to the applicable third party terms. In that event, you are bound to and responsible for complying with the third party terms governing the Third Party Services made available on or via our Service. We encourage you to be aware of this when you leave our Service or otherwise access any Third Party Services while accessing and using the Service. We also encourage you to read the privacy statements of each and every Third Party Service you visit. If you do not agree to the third party terms or privacy statements of certain Third Party Services then you should stop using such Third Party Services on or via our Service or for purposes of accessing the Service.
- Changes to the Service
We reserve the right, at our sole and absolute discretion, to: (a) make any unscheduled deployments of changes, modifications, updates or enhancements to the Service (or any part, feature or functionality thereof) at any time, with or without notice, (b) modify, add, disable or remove features or functionality of the Service, (c) modify, add, disable or remove any Account features, usage limitations, or terms, (d) modify, add, disable or remove any content, information or other material made available on or through the Service, (e) modify, add, disable or remove any Third Party Services made available on, through or facilitated on or through the Services, and (f) modify, remove or substitute any promotions or special offers, made available on or through our Service. For example, we may add or remove certain functionality or features to or from the Service or add additional varieties of Accounts or other services for Users, or remove any previously published offers, and so on. Although we will do our best to make the Service available at all times, you understand and acknowledge that we may either temporarily or permanently suspend or stop the Service altogether or suspend the Service at any time for scheduled or unscheduled maintenance. YOU AGREE THAT TO THE EXTENT PERMITTED BY LAW WE SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY MODIFICATION, SUSPENSION, INTERRUPTION OR DISCONTINUANCE OF THE SERVICE OR ANY FEATURES, FUNCTIONALITY OR CONTENT PROVIDED ON OR THROUGH THE SERVICE OR REMOVAL OF ANY PROMOTIONS.
- Proprietary Rights
12.1 Our Content. The Service will contain and provide access to data, statistics, text, graphics, pictures, videos and other materials and information owned or licensed by TaylorMade, its Affiliates and, where applicable, third party partners (collectively, “Content”). The Content may be owned or licensed by us or may be provided by third parties, including other users of the Service, or our partners, sponsors, or Affiliates. All Content (subject only to Section 13.3 below) available on or through the Service is the sole and exclusive property of TaylorMade and its Affiliates and licensors, and is protected by copyright, trademark and other intellectual property laws as well as, in some cases, rights of privacy, publicity and personality. Accordingly, TaylorMade and its Affiliates and licensors expressly reserve any and all rights and licenses not explicitly granted to you in these Terms. Except to the extent expressly permitted under these Terms, you may not modify, copy, reproduce, republish, upload, post, transmit or distribute in any manner any materials or content from our Service or made available on or via our Service (including, but not limited to, written content, software and code), without our prior written permission. Requests for permission to reproduce or distribute materials or content found on our Site may be sent to us in accordance with Section 22 below.
12.2 Our Proprietary Rights. As between you and us, TaylorMade and its Affiliates and licensors are the sole and exclusive owners of any and all rights, including all intellectual property rights, statutory and common law, under foreign and domestic law, in and to the Service, any and all components of the Service, all user interfaces and design on the Service, all Content, all Feedback (defined below), all Confidential Information, and all analytics, statistics and other information associated with use of the Service, including but not limited to the content of any exchanges to and from the Service, all messages exchanged on or through the Service, and all proprietary and intellectual property rights related to all of the above, including but not limited to software, source code, interface, design, functionality, data, algorithms, taxonomies, analytics, patents, copyrights, trademarks, industrial designs, trade secrets and any derivative works of the Service. TaylorMade may have patents, patent applications, trademarks, copyrights, industrial designs, or other intellectual property rights covering subject matter that is part of the Service. Unless we have granted you licenses to our intellectual property in these Terms, our providing you with access to and use of the Service does not give you any license to our intellectual property. All contents of our Site and the Service, including but not limited to, design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement are: Copyright © 2016 TaylorMade Golf Company, Inc., and, where applicable, the proprietary property of its suppliers, Affiliates, or licensors. All Rights Reserved.
12.4 Grant of Rights. If you provide us with comments, suggestions, recommendations or other feedback with respect to the Service, including, without limitation, with respect to modifications, enhancements, improvements and other changes to the Service (collectively, “Feedback”), you hereby agree and acknowledge that we may use such Feedback without restriction (and you waive any objection (and any moral rights), now or in the future, to our use, reproduction, modification, distribution, and any other exploitation, commercial or otherwise, we may make of the Feedback in or in connection with the Service, worldwide and in perpetuity, without the obligation to issue any royalty or other payments to you or provide consideration of any kind. In addition, by registering for the Service, you hereby (a) grant to TaylorMade, its Affiliates, licensees, and vendors an irrevocable, worldwide, perpetual, royalty-free, right and license to use, modify, adapt, reproduce, distribute, display, perform, disclose, sell, lease, license and sublicense Your Content on or otherwise in connection with the Service, (b) grant these same rights and licenses described in (a) above to TaylorMade customers if you have uploaded, posted, attached, sent, shared or otherwise made Your Content available on or via TaylorMade, and (c) grant to TaylorMade, its Affiliates, licensors, and vendors an irrevocable, worldwide, perpetual, royalty-free, right and license to use your name, image and likeness, as well as quotes that you may issue, on the Service in connection with your use of or activity on the Service while using the Service, provided that your name and likeness shall not be used in direct advertising placements by us or third parties acting on our behalf without your prior written consent. As a condition of submitting Your Content on or otherwise in connection with the Service, you waive any moral or other rights of authorship.
12.5 Trademarks. TaylorMade and the TaylorMade name and logo, and the myFittingExp name and logo, and the names and logos of our Affiliates are trademarks, service marks or registered trademarks of TaylorMade Golf Company, Inc. or our Affiliates, as applicable, and may not be copied, imitated, or used, in whole or in part, without TaylorMade’s prior written permission or that of our suppliers or licensors. Our Service contains valuable trademarks owned and used by us to distinguish TaylorMade and its products and services from those of others. Our Service may also contain references to other entities’ trademarks and service marks, but such references are for identification purposes only and are used with the permission of their respective owners. We do not claim ownership in, or any affiliation with, any third party trademarks or service marks appearing on our Site or in connection with Third Party Services available through our Service. You agree not to use or display any trademarks you do not own without our prior written consent or the consent of the owner of such mark. Additionally, any linking to our Site must not state or imply any sponsorship of your site by us.
12.6 Copyright Complaints and Removal Policy. If you believe that Your Content has been copied and posted on the Service in a way that constitutes copyright infringement, please immediately contact our Copyright Agent. Pursuant to the Digital Millennium Copyright Act of 1998, 17 U.S.C. 512(c)(2), our designated Copyright Agent for notice of alleged copyright infringement in connection with the Service can be reached at: TaylorMade Golf Company, Attn.: Legal Dept., 5545 Fermi Court, Carlsbad, California 92008-7324; Email: firstname.lastname@example.org; phone: (760) 918-6000; fax: (760) 931-3019. We reserve the right to delete or disable any material alleged to violate these Terms and to terminate repeat infringers.
12.6.1 If you are in the United States, Federal law requires your DMCA Notice to include the following information:
(a) Identification of the copyrighted work that you claim has been infringed;
(b) Identification of the material, including URL, that you claim is infringing, with enough detail so that we may locate it;
(c) Your address, telephone number, and email address;
(d) A statement declaring under penalty of perjury that: (i) you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (ii) the above information in your notice is accurate, and (iii) you are the owner of the copyright interest involved or you are authorized to act on behalf of that owner; and
(e) Your physical or electronic signature.
13.1 Confidential Information. “Confidential Information” includes any confidential or proprietary technical, business or financial information and materials disclosed by us to you, including but not limited to the Service, methodologies, software, data, marketing plans, discount terms, promotion terms and programs, analytics reports or statistics relating to your use of the Service, and any business, financial or technical information that is either marked or otherwise identified by us as confidential or proprietary, or can be reasonably interpreted as being confidential or proprietary.
13.2 Ownership and Duty of Confidentiality. You agree to hold Confidential Information in confidence and to protect such Confidential Information from disclosure to any third party, using the same degree of care used to protect your own most sensitive and confidential information, but in no event less than reasonable care. You agree to limit access to our Confidential Information to your employees and/or consultants (where applicable), if any, who have a need to access such information in accordance with the Terms. You also agree that all Confidential Information is proprietary to and shall remain the sole and exclusive property of TaylorMade. If you are required by a valid court order or subpoena issued by a governmental agency to disclose certain Confidential Information, you will provide us with prompt written notice in order to afford us an opportunity to seek a protective order or otherwise challenge the compulsory disclosure.
- Disclaimer of Warranties
WE PROVIDE THE SERVICE, OUR SITE, AND ALL CONTENT AND MATERIALS AVAILABLE ON OR THROUGH THE SERVICE “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE.” YOU AGREE THAT ANY USE OF OR RELIANCE UPON OUR SERVICE, INCLUDING ANY OF THE INFORMATION, CONTENT, AND OTHER MATERIALS OR THIRD PARTY SERVICES AVAILABLE ON OR THROUGH THE SERVICE, BY YOU IS (TO THE EXTENT PERMITTED APPLICABLE BY LAW) AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO (AND SPECIFICALLY DISCLAIM ALL) CONDITIONS, REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR CONDITION THAT ACCESS TO THE SERVICE, ANY THIRD PARTY SERVICES, OR ANY CONTENT STORED ON OR THROUGH THE SERVICE, WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT THE SERVICE, ANY THIRD PARTY SERVICES, AND ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST, CORRUPTED OR DAMAGED, AND WE DISCLAIM ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTY OR CONDITION ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSION, AND AS A CONSEQUENCE SUCH EXCLUSION MAY NOT APPLY TO YOU BUT ONLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
If you are accessing the Services as a consumer then nothing in these TOS shall have the effect of limiting or excluding any statutory rights you may have as a consumer and where there is a conflict your statutory rights as a consumer shall prevail.
- User Responsibilities
16.1 Your Responsibility. You understand that TaylorMade, its Affiliates, subcontractors, partners and licensors, and all of our and their respective officers, directors, employees, agents, licensors, suppliers are not responsible for any claims, losses, damages, liabilities, costs or expenses, arising out of or resulting from: (a) any breach of these Terms or any third party terms by you, (b) Your Content, or the upload, storage, hosting, display, transmission, sharing or distribution of same on or through the Service, (c) our compliant exercise of any rights under any licenses or permissions you grant us pursuant to the Terms, (d) Your Content or your use of the Service violates any law, regulation or order, or infringes, violates or misappropriates the rights of any third party, including but not limited to those pertaining to intellectual property, rights of publicity, personality, and privacy, and (e) your access to and use of the Service or your inability to access or use the Service, including but not limited to the use of any features offered on or through the Service, any Third Party Services, any content or comments provided or shared by others on the Service, and your download, upload, sharing or actions with respect to any content, including Your Content.
16.2 User Interaction Responsibility. You understand that you are solely responsible for your interactions with other people online or in person. TaylorMade, its Affiliates, subcontractors, partners and licensors, and all of our and their respective officers, directors, employees, agents, licensors, suppliers are not responsible for any claims, losses, damages, liabilities, costs or expenses, arising out of or resulting from any interaction with other users, persons you meet through the Service, or persons who find you because of information posted on, by or through the Service. You agree to take all reasonable precautions before interacting with any other users or meeting any other person. You understand that TaylorMade, its Affiliates, subcontractors, partners and licensors are under no obligation to become involved in disputes between or among Users, but may do so at its own discretion.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TAYLORMADE, ITS AFFILIATES, VENDORS, PARTNERS, LICENSORS AND THEIR RESPECTIVE OWNERS, OFFICERS, EMPLOYEES, AGENTS, VENDORS AND LICENSORS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, OR LOSS OF REVENUE, GOODWILL, LOSS OF USE, LOSS OF DATA OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
WITHOUT LIMITING THE FOREGOING TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM AGGREGATE LIABILITY OF TAYLORMADE, ITS AFFILIATES, VENDORS, PARTNERS, LICENSORS AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, VENDORS OR LICENSORS, TO YOU FOR DIRECT DAMAGES CAUSED BY THE SERVICE OR ANY OTHER CLAIMS BY YOU MADE UNDER THESE TERMS, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, WILL NOT EXCEED THE LESSER OF TWENTY DOLLARS OR THE FEE PAID BY YOU TO US FOR USE OF THE SERVICE IN THE ONE MONTH IMMEDIATELY PRECEDING THE CLAIM. THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE.
THE TERMS OF THIS SECTION 18 PREVAIL NOTWITHSTANDING ANYTHING THAT MAY BE CONSTRUED TO THE CONTRARY ELSEWHERE IN THESE TERMS.
THE PARTIES AGREE THAT THE ABOVE PROVISIONS FAIRLY ALLOCATE THE RISK BETWEEN THE PARTIES, WITHOUT WHICH THEY WOULD NOT HAVE ENTERED INTO THESE TERMS. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS, AND AS A CONSEQUENCE THIS LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- Term and Termination
18.1 Term. Except for all provisions which, by their nature, survive any termination or non-renewal of your Account and all provisions which are otherwise expressly identified as surviving in the Terms, these Terms continue for as long as you have an Account with our Service.
18.2.1 Termination for Cause. We may terminate your Account and your access to the Service for cause, immediately and without notice or obligation to you if: (a) you are under the age of thirteen (13), (b) you violate or fail to comply with any provision of these Terms, (c) Your Content is infringing or violates the rights of any third party, (d) you failed to provide true or accurate information in connection with your Account registration, (e) you fail to meet the Requirements for Use at any time or it is discovered that you did not meet the Requirements for Use at the time of your Account registration, (f) you have misused the Service or violated the acceptable use provisions or other provisions of these Terms, or (g) as required by applicable law. You understand that upon any termination for cause, you will have no access, nor right of access, to your Account, Your Content or any features of the Service.
18.2.2 Termination for Convenience. Subject to these Terms and except in the event in which we have a right to terminate for cause, either party may terminate your Account at any time, for any or no reason, by providing notice to the other party in accordance with these Terms.
18.3 Effect of Termination.
18.3.1 Survival. All provisions of the Terms which, by their nature, should survive will continue indefinitely in full force and effect after the termination of your Account. In addition, all defined terms, disclaimers and the following sections of this TOS will survive any termination or expiration of your Account: 13 through 18, this Section 19.3, and Sections 20 25.
18.3.2 Effect on Your Content. Upon any termination of your Account, you will lose access to the Service, Content, and Your Content.
- Compliance with laws
You understand that you are responsible for compliance with all laws and regulations associated with your access to and use of the Service, contribution of Your Content or any other material, and interactions with other Users. Your use of the Service, including any associated built-in software, is subject to your compliance with export and re-export control laws and regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and sanctions programs maintained by the Treasury Department’s Office of Foreign Assets Control. You shall not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any of the Service to any end-user without first obtaining the required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including access to the Service.
- Arbitration Agreement & Waiver of Certain Rights
You and TaylorMade agree that we will resolve any disputes between us through binding and final arbitration instead of through court proceedings. You and TaylorMade hereby waive any right to a jury trial of any Claim. All controversies, claims, counterclaims, or other disputes arising between you and TaylorMade relating to these Terms, the Site, or the Services (each a “Claim”) shall be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association (“AAA Rules”). The arbitration will be heard and determined by a single arbitrator. The arbitrator's decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, TaylorMade will pay as much of the administrative costs and arbitrator's fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
This arbitration agreement does not preclude you or TaylorMade from seeking action by federal, territorial, provincial, state, or local government agencies. You and TaylorMade also have the right to bring qualifying claims in small claims court. In addition, you and TaylorMade retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with these Terms, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms.
Neither you nor TaylorMade may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or TaylorMade’s individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
If any provision of this Section is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section shall continue in full force and effect. No waiver of any provision of this Section of the Terms will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of this Terms. This Section of the Terms will survive the termination of your relationship with TaylorMade.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR TAYLORMADE WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
Notwithstanding the above provisions, for consumers resident in the United Kingdom they may resolve any disputes by either choosing arbitration based in the UK (after agreeing to the dispute resolution body with TaylorMade) or the courts in England, or may choose to refer the dispute to European Commission Online Dispute Resolution platform (see the paragraph below for details).
European Disputes Resolution
If you are a consumer based in the UK or other European country then if you have a complaint in relation to the Services rendered through this website you can chose an alternative dispute resolution process. Alternative dispute resolution is a process where an independent body considers the facts of a dispute and seeks to resolve it, without you having to go to court. If you are a consumer and are not happy with how we have handled any complaint, you may want to submit a dispute for online resolution to the European Commission Online Dispute Resolution platform (http://ec.europa.eu/consumers/odr/). Please note TaylorMade in the UK is not a member of any alternative dispute resolution body
21.1 Agreement; Order of Priority. These Terms constitute the entire agreement between TaylorMade and you regarding your access to the Service, use of the Service and your Account with the Service; these Terms supersede any and all prior understandings or agreements, oral or written, between you and us relating to your access to the Service, use of the Service and your Account with the Service. You understand that your Account is governed by these Terms. In the event of any conflict between a provision of this TOS and a provision of any third party terms, this TOS shall govern and prevail in all respects but the third party terms shall govern solely as to the use of the applicable Third Party Service.
21.2 No Assignment or Transfer. We may assign, transfer, or otherwise dispose our rights and obligations under these Terms, in whole or in part, at any time without notice. We may also assign these Terms to any of our Affiliates or any third party for any or no reason. You may not assign, transfer, or otherwise dispose of your rights and obligations under these Terms, in whole or in part, at any time. The Terms shall be binding upon and shall inure to the benefit of the parties and their heirs, and permitted successors and assigns.
21.3 Waiver. The failure of either party to insist upon or enforce strict performance of any of the provisions of the Terms or to exercise any rights or remedies under the Terms will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision, right or remedy in that or any other instance.
21.4 Section Titles. The Section titles and headings in the Terms are for convenience only and shall not be considered in its interpretation or having any legal or contractual effect whatsoever.
21.5 No Third Party Beneficiaries. You and we are not legal partners or Affiliates but are independent contracting parties. The Terms are solely for the benefit of you and us and there shall be no third party beneficiaries except for permitted successors and our Affiliates, suppliers, partners and licensors.
21.6 Severability. If any provision of these Terms is held to be invalid, illegal or unenforceable, you and we agree that such provision shall be construed in accordance with applicable law as nearly as possible to reflect our original intentions, and that the remaining provisions shall remain in full force and effect.
21.7 Issues. Any dispute you wish to raise must be filed within one year. You must bring any claim related to these Terms within one year of the date you could first bring the claim, unless your local law requires a longer time to file claims. If your claim is not filed in time in accordance with this Section 21.7, you understand that the claim is permanently barred.
21.8 Governing Law. You are entering into these Terms with Taylor Made Golf Company, Inc. with an address in California as listed below. These Terms, including any and all claims for breach, shall be governed by and interpreted in accordance with the laws of (i) the State of California, U.S.A., for those Users located in the U.S.A. or any other jurisdiction (excluding the jurisdictions listed in paragraphs (ii) and (iii) below); (ii) England for those Users located in the United Kingdom and (iii) the Province of Ontario and the laws of Canada applicable therein, for those Users located in Canada, and (iv) the State of Victoria, Australia for those Users located in Australia, and each without regard to its principles regarding conflicts of law. The parties specifically exclude from application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. All disputes arising out of or relating to these Terms shall be settled in accordance with Section 21 (Arbitration Agreement and Waiver of Certain Rights) of these Terms.
- Contact us and Notices
We may send you, in electronic form, information about the Service, additional information, and information the law requires us to provide. We may provide required information to you via email at the email address you specified when you signed up for the Service, or by access to a website that we identify. Notices emailed to you will be deemed given and received when the email is sent. If you don’t consent to receive notices electronically, you must stop using the Service. You may provide legal notice to us by sending us a message from contact page, provided that a contemporaneous duplicate copy is sent via registered mail, return receipt requested, to the following address: TaylorMade Golf Company, Attention: Legal Department, 5545 Fermi Court Carlsbad, California 92008-7324. Any such notice, in either case, must specifically reference that it is a notice given under these Terms.
- TOS Updates and Effective Date
The provisions contained within and referenced by this TOS are deemed to be in full force and effect, and this TOS was last revised and updated as of June 12, 2019.