Thank you for choosing to become a subscriber (hereinafter “Subscriber”). This subscription agreement (hereinafter “Agreement”) between you and InMotion Systems, LLC (hereinafter “Company”) applies to your subscription (hereinafter “Subscription”) to receive InMotion Systems services (collectively, “the Service”) and to access the Service via the Company’s web site (hereinafter “Site”) at www.hittraxstatscenter.com and/or via the Company’s HitTrax StatsCenter application (hereinafter “Application”).
Terms of Use
By accessing or using the Company’s Site at www.hittraxstatscenter.com, Subscriber asserts that he has read, understood, and agrees to be bound by this Agreement. The Company reserves the right, at its sole discretion, to change the terms of the Agreement at any time and without additional notification. Any changes to the Agreement will be effective upon posting of the revisions on the Site, reflecting the new effective date. It is Subscriber’s responsibility to check the Site to and review any changes to the Terms of Use.
PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY BEFORE CONTINUING REGISTRATION OR ACCESSING OR USING THE SITE OR THE APPLICATION. BY CHOOSING BILLING FREQUENCY OR CLICKING THE “PAY WITH CREDIT CARD” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT, SUBSCRIBER AGREES TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT. IF SUBSCRIBER DOES NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, SUBSCRIBER AGREES NOT TO ACCESS OR USE THE SERVICE, SUCH AS THROUGH THE SITE OR APPLICATION.
Use of Service
To enter into and assume the obligation of the terms of this agreement, Subscriber must be at least 18 years old or the age of majority according to the laws of Subscriber’s state of residency.
Proprietary Rights
1.) Ownership of Data
Company retains all ownership and intellectual property rights in and to all data collected or provided through a facility affiliated with the Company, received or provided through the Site, and received or provided through the Application (hereinafter “the Data”). This Data includes, but is not limited to, user name, user age, user height, user skill level, and user baseball metrics such as Exit Ball Velocity, Distance of Hit, Launch Angle, Pitch Velocity, Pitch Movement, Batting Average, Hard Hit Average, Line Drive Plus Hard Hit, % of Line Drives/Fly Balls/Ground Balls, Slugging Percentage (SLG), On Base Percentage (OPS), Spray Charts, Strike Zone Analysis, Performance Trends, and Rankings.
2.) Collection of Data for Children under the Age of Thirteen
If Subscriber has created an account on behalf of a user under the age of 13 (hereinafter “User”), Subscriber is notified that the Company may collect personal information, as defined by the Children’s Online Privacy Protection Act (16 CFR Part 312), from the User. In this case, Subscriber is required to direct a parent of the User to the “Children’s Online Privacy Protection Notice” documentation maintained by Company at http://www.hittraxstatscenter.com/u13-privacy-policy.pdf.
3.) Site Content
All content provided on or through the Site and/or on or through the Application as available as part of the Service (the “Site Content”), including content derived from the Data, is the proprietary property of the Company. Provided that the Subscriber is eligible to access and use the Service via the Site and/or Application, Subscriber is granted a limited license to access and use the Site Content and to download or print a copy of any Site Content to which Subscriber has gained access for Subscriber’s personal non- commercial and limited commercial use. Limited commercial use shall include sale and distribution of any downloaded Site Content or printed copy of any Site Content to a customer of the Subscriber. Limited commercial use shall not include (1) the sale and distribution of any downloaded Site Content or any printed copy of any Site Content to another company or to another individual, (2) the sale and distribution of any Data to a customer of the Subscriber, to another company, or to another individual, and (3) the sale or distribution of modified or repackaged Site Content to a customer of the Subscriber, to another company, or to another individual. Company reserves the right to review the Site Content utilized in the limited non-commercial use by the Subscriber and to deny certain usages based on Company’s interpretation of what constitutes limited commercial use.
Subscriber may not republish the Site Content, including but not limited to republishing on any network site. Any use of the Service, Site, Application, or the Site Content other than as specifically authorized herein, is prohibited without the prior written permission of Company, and will terminate the license granted herein. Unless explicitly stated, nothing in this Agreement shall be construed as conferring any license to any of Company’s intellectual property rights. This license is revocable at any time without notice and with or without cause.
4.) Changes to Site, Application, and Site Content
Company reserves the right to change any and all Site Content, software, including software versions and/or updates of the Site and Application, and other items provided by the Service or used, contained, or provided by the Site and Application at any time without notice. Subscriber agrees to accept all software upgrades and updates, including updated software versions.
5.) Suggestions
Company shall have a royalty-free, worldwide, transferable, sub licensable, irrevocable, perpetual license to use, copy, modify, distribute, and incorporate into any services or products owned or developed by the Company any suggestions or recommendations provided by the Subscriber relating to the Service, the Site, the Application, and the Site Content owned by the Company.
Rights Granted
For the duration of the term of the Agreement, Subscriber has a single-user, nonexclusive, non- assignable, royalty free, worldwide, limited right to use the Service, Site, Application, and Site Content solely and subject to the terms of the Agreement. Under the Agreement, Subscriber does not acquire any license to use the Company’s Service, such as via the Site and/or the Application, beyond the scope and duration of this Agreement. Upon the end of the Agreement, Subscriber’s right to access or use the Service shall terminate.
Payment Terms
1.) Subscription Fee
In exchange for receiving the Service, Subscriber agrees to pay a fee (hereinafter “Subscription Fee”) in advance by credit card, debit card, or other third-party payment systems utilized by Company, such as PayPal. The term of the subscription (hereinafter “Subscription Term”) will be in accordance with one of a monthly Subscription Term or annual Subscription Term selected and purchased by the Subscriber. The duration of the monthly Subscription Term is one month from the payment of the Subscription Fee and the duration of the annual Subscription Term is one year from the payment of the Subscription Fee.
2.) Automatic Renewal
At the end of the Subscription Term, Subscriber’s subscription to the Site and Service will recur at monthly or annual intervals without notification, based upon the selected Subscription Term. Subscriber’s account will automatically be charged at the rates in effect at the time of renewal.
Cancellation
1.) Subscriber Cancellation
Subscriber can cancel the subscription to the Site and Service at any point in time by providing a cancellation notice via email to subscriptions@hittraxbaseball.com. Subscriber is required to provide Company with cancellation notice 30 days prior to the cancellation date. Once Subscriber has canceled the subscription, Subscriber will not be charged for additional Subscription Terms. However, Subscriber is responsible for payment of any charges incurred for the current billing period.
2.) Company Cancellation
Company reserves the right to cancel Subscriber’s subscription to the Service if, at any time, Subscriber fails to pay amounts owed to Company when due, violates or breaches any portion of this Agreement, or for any other reason in the discretion of the Company. If Subscriber’s subscription is canceled, Subscriber will still be responsible for payment of all outstanding balances accrued through the cancellation date. IN THE UNLIKELY EVENT THAT COMPANY CEASES THE SITE OR THE SERVICE, WHETHER AS A RESULT OF A LIQUIDATION, BANKRUPTCY, OR OTHERWISE, ALL PREPAID SUBSCRIPTIONS WILL BE TREATED AS NONREFUNDABLE.
Limitations on Liability
Subscriber acknowledges that Company does not control the transfer of content, including but not limited to Data and Site Content, via the Site or via the Application as part of the Service. Accordingly, access to the Service may be subject to limitations, delays, and other shortcomings inherent in the use of the communications services technologies, including the Internet. Company is not responsible for any delays, delivery failures, or other damage resulting from communication services shortcomings.
The Service may be temporarily inaccessible or unavailable from time to time, such as via the Site and the Application, for system maintenance, system upgrades, or other reasons. Company is not responsible for any delays, delivery failures, or other damage resulting from such inaccessibility or unavailability.
Company is not responsible for any technical malfunction or damage to Subscriber’s or to any other person’s computerized device or other hardware or software, related to or resulting from accessing the Service via the Site or Application and is not responsible for any loss or damage resulting from Subscriber’s use of the Service.
THE SERVICE, THE SITE, THE APPLICATION, AND THE SITE CONTENT ARE PROVIDED “AS-IS” AND THE COMPANY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITHOUT LIMITATION, INCLUDING IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE COMPANY DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM USE OF THE SERVICE, THE SITE, AND/OR THE APPLICATION. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, THE SITE, THE APPLICATION, AND/OR THE SITE CONTENT ARE RELIABLE, ACCURATE, VIRUS FREE OR ERROR-FREE. THEREFORE, SUBSCRIBER UNDERSTANDS AND AGREES THAT ACCESS OF THE SERVICE THROUGH THE SITE OR APPLICATION IS PERFORMED AT SUBSCRIBER’S OWN DISCRETION AND THAT SUBSCRIBER WILL BE SOLELY RESPONSIBILE FOR ANY DAMAGE TO SUBSCRIBER’S COMPUTERIZED DEVICE OR SYSTEM, ANY LOSSES OF DATA, AND ANY OTHER HARM THAT MAY OCCUR.
Indemnification
Subscriber agrees to indemnify and hold the Company, its subsidiaries and affiliates, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or in connection Subscriber’s use of the Service, the Site, or the Application, Subscriber’s conduct in connection with use of the Service, the Site, or the Application, with any content Subscriber provides to or receives from the Site, or any violation of this Agreement or of any law or the rights of any third party.
Equitable Relief
Subscriber acknowledges that any breach of this Agreement will cause immediate and irreparable harm to Company. Accordingly, the Company will have the right to seek and obtain preliminary and final injunctive relief to enforce this Agreement in case of any actual breach, or communication indicating repudiation of this Agreement, in addition to other rights and remedies that may be available to Company.
Applicable Law
This Agreement shall be construed and controlled by the substantive laws of the Commonwealth of Massachusetts, excluding that body of law known as conflicts law. Company and Subscriber consent to jurisdiction by the state and federal courts sitting in the Commonwealth of Massachusetts. If either Company or Subscriber employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees.
Full Agreement
This Agreement constitutes the entire agreement between Company and Subscriber concerning Subscriber’s access to and use of the Service via the Site and/or Application and may be modified by the unilateral amendment of this Agreement by Company and the posting of such amended version on the Site. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be deleted or modified to the extent necessary and the remaining provisions shall remain in full force and effect.
