TERMS OF SERVICE
Last Updated: May 24, 2018
These Terms of Service (“Terms”) apply to your access to and use of the IMG ACADEMY website: IMGACADEMY.com (the “Website”) and mobile application (the “App”) provided by IMG Academy, LLC and our parents, subsidiaries and affiliates (collectively, “IMG,” “we” or “us”), and the features, services, and programs offered through the Website and the App (collectively with the Website and App, our “Service”). By accessing or using our Service, you agree to these Terms. If you do not agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 14, do not access or use our Service.
These Terms do not alter in any way the terms or conditions of any other agreement you may have with IMG or its subsidiaries or affiliates, for products, services or otherwise, including enrollment agreements or program terms that apply to enrollment in or attendance at any IMG Academy schools, camps, training, events, and other programs we offer (“Program Terms”).
If you have any questions about these Terms, our Service or our events or programs, please contact us at [email protected].
You must be at least 13 years of age to access or use our Service. However, certain features of our Service, such as registering for IMG Academy schools, camps, training, events, and other programs we offer (“IMG Academy Programs”), require that you be 18 years of age or older and have a valid payment method that you are authorized to use. If you are accessing or using our Service on behalf of another person or on behalf of an entity, you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms.
2. USER CONTENT
Our Service may allow you to create, post, store and share content, including messages, text, photos, videos, software and other materials (collectively, "User Content"). Except for the license you grant below, and Feedback as set forth in Section 4 below, you retain all rights in and to your User Content, as between you and IMG.
You grant IMG a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully-paid and sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. When you post or otherwise share User Content on or through our Service, you understand that your User Content and any associated information (such as your username) may be visible to the public. You represent and warrant that (a) you own and control all of the rights to the User Content that you post or you otherwise have the right to post such User Content; (b) the User Content is accurate and not misleading; and (c) use and posting of the User Content you supply does not violate these Terms and will not violate any rights of or cause injury to any person or entity.
3. PROHIBITED CONDUCT AND CONTENT
You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Service. You will not:
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Use or attempt to use another user’s account without authorization from that user and IMG;
- Use our Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Service or that could damage, disable, overburden or impair the functioning of our Service in any manner;
- Reverse engineer any aspect of our Service or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Service;
- Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Service that you are not authorized to access;
- Develop any third-party applications that interact with our Service without our prior written consent, including any scripts designed to scrape or extract data from our Service;
- Bypass or ignore instructions contained in the robots.txt file that controls automated access to portions of our Service; or
- Use our Service for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
You may also only post or otherwise share content that is non-confidential and you have all necessary rights to disclose. You may not create, post, store or share any content that:
- Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
- Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
- May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
- Impersonates, or misrepresents your affiliation with, any person or entity;
- Contains any unsolicited promotions, political campaigning, advertising or solicitations;
- Contains any private or personal information of a third party without such third party’s consent;
- Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
- Is, in our sole judgment, objectionable or that restricts or inhibits any other person from using or enjoying our Service, or that may expose IMG or others to any harm or liability of any type.
Enforcement of the content or conduct rules set forth in these Terms is solely at our discretion, and failure to enforce such rules in some instances does not constitute a waiver of our right to enforce such rules in other instances. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Service will not contain any content that is prohibited by such rules. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason.
Any questions, comments, suggestions, ideas, original or creative materials or other information you submit about IMG or our Service or IMG Academy Programs (collectively, “Feedback”) is non-confidential and will become the sole property of IMG. We will own exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Any and all offers or promotions advertised on this Service are void where prohibited and are subject to the posting of any official rules to such offers or promotions.
6. COPYRIGHT AND TRADE MARK
Our Service and the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein (collectively, the “IMG Content”) are owned by or licensed to IMG and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, IMG and our licensors reserve all rights in and to the Service and the IMG Content. You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use the Service and IMG Content for your own personal use; however, such license is subject to these Terms and does not include any right to (a) sell, resell or commercially use the Service or IMG Content; (b) copy, reproduce, distribute, publicly perform or publicly display IMG Content, except as expressly permitted by us or our licensors; (c) modify the IMG Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of the Service or IMG Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use the Service or IMG Content other than for their intended purposes. Any use of the Service or IMG Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.
7. NOTICE OF PHOTOGRAPHY AND AUDIO AND VIDEO RECORDINGS
When you visit IMG Academy premises or attend IMG Academy Programs, you may enter an area where photography and audio and video recordings may occur. By entering the IMG Academy premises or attending IMG Academy Programs, you consent to such photography and audio and video recording and you release IMG for any liability connected therewith. You acknowledge that you have no expectation of privacy while on the IMG Academy premises.
8. COPYRIGHT COMPLAINTS
We have a policy of limiting access to the Service and terminating, in appropriate circumstances, the accounts of users who are deemed to be repeat infringers. We also may, at our sole discretion, limit access to the Service and our Service or terminate the accounts of any users who infringe the intellectual property rights of others, whether or not there is any repeat infringement.If you believe that anything on the Service infringes any copyright that you own or control, you may notify IMG’s Designated Agent as follows:
Designated Agent: Debra Shuwarger
Address: 9601 Wilshire Boulevard, Third Floor
Beverly Hills, California 90210
Telephone Number: 310-285-9000
Fax Number: 310-285-9010
E-Mail Address:[email protected]
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Service is infringing, you may be liable to IMG for certain costs and damages.
You will indemnify, defend, and hold harmless IMG and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “IMG Parties”) from and against any loss, liability, claim, demand, damages, expenses or costs (including attorney’s fees) arising out of or related to (a) your access to or use of our Service; (b) your User Content; (c) your violation of these Terms; or (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights). This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and IMG or the other IMG Parties.
We do not control, endorse or take responsibility for any third-party content available on or linked to by our Service, including User Content.
Your use of our Service is at your sole risk. Our Service is provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, IMG does not represent or warrant that our Service is accurate, complete, reliable, current or error-free. While IMG attempts to make your access to and use of our Service safe, we cannot and do not represent or warrant that our Service or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Service.
11. LIMITATION OF LIABILITY
IMG and the other IMG Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, special or punitive damages or lost profits, even if IMG or the other IMG Parties have been advised of the possibility of such damages.
The total liability of IMG and the other IMG Parties for any claim arising out of or relating to these Terms, our Service, or any IMG Academy Program, regardless of the form of the action, is limited to the amount paid, if any, by you to access or use our Service or for the IMG Academy Program.
The limitations set forth in this Section will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of IMG or the other IMG Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
To the fullest extent permitted by applicable law, you release IMG and the other IMG Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
13. TRANSFER AND PROCESSING OF DATA
By accessing or using the Service, you consent to the processing, transfer and storage of information about you in and to the United States and other countries, where you may not have the same rights and protections as you do under local law.
14. DISPUTE RESOLUTION; ARBITRATION
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with IMG and limits the manner in which you can seek relief from us.
Except for small claims disputes in which you or IMG seek to bring an individual action in small claims court located in the county of your billing address, or disputes in which you or IMG seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and IMG waive your rights to a jury trial and to have any dispute arising out of or related to these Terms, our Service, or any IMG Academy Program resolved in court. Instead, all disputes arising out of or relating to these Terms, our Service, or any IMG Academy Program will be resolved through confidential binding arbitration held in the Borough of Manhattan, New York in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation Services (“JAMS”), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
You and IMG agree that any dispute arising out of or related to these Terms, our Service, or any IMG Academy Program is personal to you and IMG and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.
You and IMG agree that these Terms affect interstate commerce and that the enforceability of this Section 14 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA"), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and IMG agree that for any arbitration you initiate, you will pay the filing fee and IMG will pay the remaining JAMS fees and costs. For any arbitration initiated by IMG, IMG will pay all JAMS fees and costs. You and IMG agree that the state or federal courts of the State of New York and the United States sitting in the borough of Manhattan have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any claim you may have arising out of or related to these Terms, our Service, or any IMG Academy Program must be filed within one year after such claim arose; otherwise, your claim is permanently barred, which means that you and IMG will not have the right to assert the claim.
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 14 by emailing [email protected]. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 15.
15. GOVERNING LAW AND VENUE
These Terms and your access to and use of our Service and IMG Academy Programs will be governed by and construed and enforced in accordance with the laws of New York, without regard to conflict of law rules or principles (whether of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of the Borough of Manhattan, New York.
16. CHANGES TO THESE TERMS
We may make changes to these Terms from time to time. If we make changes, we will post the amended Terms to our Service and update the “Last Updated” date above. We may also attempt to notify you by sending an email notification to the address associated with your account or providing notice through our Service. Unless we say otherwise in our notice, the amended Terms will be effective immediately and your continued access to and use of our Service after we provide notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop accessing and using our Service.
We reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Service. We are not responsible for any loss or harm related to your inability to access or use our Service.
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
These Terms, together with any applicable Program Terms, constitute the entire agreement between you and IMG relating to your access to and use of our Service. The failure of IMG to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.
20. ADDITIONAL EULA TERMS APPLICABLE TO IPHONE, IPOD TOUCH OR IPAD APPLICATIONS
Notwithstanding anything to the contrary in the EULA set forth above, the following additional terms shall apply to any Applications downloaded for use on the iPhone, iPod Touch or iPad:
a. Acknowledgement: The parties acknowledge that this EULA is concluded solely between such parties, and not with Apple, and IMG, not Apple, is solely responsible for the Application and the content thereof. You further acknowledge that the usage rules for the Application are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service as of the date you download the Application, and in the event of any conflict, the Usage Rules in the App Store shall govern if they are more restrictive
b. Scope of License: The license granted to you is limited to a non-transferable license to use the Applications on any iPhone, iPod touch or iPad that you own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
c. Maintenance and Support: The parties acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
d. Warranty: You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the Applications. In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the Application to that end-user; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of IMG. However, you understand and agree that in accordance with the EULA, IMG has disclaimed all warranties of any kind with respect to the Application, the Site and the Service, and therefore, there are no warranties applicable to the Applications.
e. Product Claims: The parties acknowledge that as between Apple and IMG, IMG, not Apple, is responsible for addressing any claims of the end-user or any third party relating to the Application or the end-user’s possession and/or use of that Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
f. Intellectual Property Rights: The parties acknowledge that, in the event of any third party claim that the Application or the end-user’s possession and use of that Application infringes that third party’s intellectual property rights, IMG, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under the EULA.
g. Legal Compliance: You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
h. Developer Name and Address: Any end-user questions, complaints or claims with respect to the Application should be directed to:
IMG Academy, LLC.
Address: 5650 Bollettieri Blvd.
Bradenton FL 34210
Email: [email protected]
i. Third Party Beneficiary: The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the EULA, and that, upon the end-user’s acceptance of the terms and conditions of the EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the EULA against the end-user as a third party beneficiary thereof).