HITTRAX OPEN
PARTICIPATION AGREEMENT AND RELEASE
I hereby acknowledge and agree that I have completed and submitted my profile to InMotion Systems, LLC, a Massachusetts limited liability company d/b/a HitTrax (“HitTrax”), indicating my desire and willingness to participate and compete as a participant (“Participant”) in the HitTrax Open (the “Tournament”), which is currently intended, but is not guaranteed, to be produced for livestream on the internet and/or broadcast on a television network (such livestream provider and television network, collectively, the “Network”). I have also read, understood, and consent to and agree to be bound by the Official Rules & Regulations of the Tournament (the “Rules”) as set forth on HitTrax’s website, hittrax.com (the “Website”).
In consideration of and as inducement to HitTrax’s further considering me to become a Participant in the Tournament, I am making the representations, warranties, disclosures, covenants and agreements described below. I understand that if any disclosure, representation or warranty is false or if I breach any covenant or agreement made in this Participation Agreement and Release (“Agreement”) or any other agreement or release in connection with the Tournament, in addition to the right to enforce such covenant, agreement or release, HitTrax may disqualify me from participating in the Tournament and/or disqualify me from receiving any prize or other award which I would otherwise have received.
BY CLICKING THE “I ACCEPT” BOX AND CLICKING THE “SUBMIT” BUTTON BELOW, I ACKNOWLEDGE AND AGREE THAT (A) I AM CREATING A BINDING OBLIGATION BETWEEN MYSELF AND HITTRAX, (B) I HAVE READ AND UNDERSTAND AND AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT (INCLUDING THE RULES) WITHOUT CHANGE, AS THE RULES MAY BE UPDATED FROM TIME TO TIME IN ACCORDANCE WITH THIS AGREEMENT.
GRANT OF RIGHTS
1. I irrevocably grant to HitTrax the right (a) to interview me, as many times and for such periods of time as HitTrax requests in its sole discretion, and to videotape, film and otherwise record such interview(s) and my statements, actions and appearances therein, including my name, voice and likeness, and, (b) if I am selected by HitTrax to be a Participant in the Tournament, to videotape, film, portray, photograph and otherwise record me and my actions and record my voice and other sound effects in connection with the production, advertising, marketing and publicity of the Tournament (including, without limitation, whether I am aware or unaware of such videotaping, filming or recording at the time that it occurs and by requiring me to wear a microphone when requested).
2. The interview(s), any and all other information HitTrax has received or will receive from me or other sources, my appearance, actions, voice and sound effects in connection with the Tournament, and the results and proceeds of my participation in the Tournament, including any and all statistics, data and other information generated in connection with the Tournament, and any reproductions or recordings of any nature of any of the foregoing, in whole or in part, (all of the foregoing are referred to herein be as the “Material” ), including the copyright and all other rights therein, shall be the sole and exclusive property of HitTrax, and in consideration of HitTrax’s considering me to be a Participant in the Tournament, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, I hereby grant and assign to HitTrax all rights of any nature in and to the Material.
3. The Material may be used, broadcast, exhibited, distributed, advertised, publicized, promoted or otherwise exploited by such means and for such purposes and in any and all media, now known or hereafter devised as HitTrax designates, throughout the universe, in perpetuity, at any time and from time to time, whether as part of the Tournament (including, without limitation, any subsequent versions of the Tournament, regardless of whether or not I am a participant), or otherwise. The Material may be edited, cut, rearranged, adapted, dubbed or otherwise revised or modified for any such purposes by HitTrax or Network in their sole discretion, and I waive the exercise of any “moral rights” and “droit moral” and any analogous rights however denominated in any jurisdiction of the world. I agree that any exhibition or other exploitation of the Material or any rights therein, whether as part of the Tournament or otherwise, will not entitle me to receive any compensation (whether in the form of residuals, salary or otherwise) except as expressly set forth herein and as set forth in the Rules that govern play and competition in the Tournament.
4. I hereby grant to HitTrax and its licensees and assigns the perpetual, worldwide and irrevocable right to use my name, sobriquet, likeness (actual or simulated), photograph, caricature, voice and biographical material in connection with the development, production, exhibition, advertising, publicity, promotion, merchandising and other exploitation of the Material, whether as part of the Tournament, the Website or otherwise, or in connection with the exploitation of any subsidiary and ancillary rights therein, HitTrax’s business activities and the business activities of the networks, stations, sponsors and other users, exhibitors, distributors, assignees and licensees of the Material and/or the Tournament or the Website for any purpose including, without limitation, for any commercial purpose whatsoever, including, but not limited to product endorsement, whether related to the Tournament, the Website or otherwise.
PARTICIPATION
5. If I am selected by HitTrax to be a Participant in the Tournament, I agree to participate as a Participant in connection with the production of the Tournament as and to the extent required by HitTrax on such dates and at such locations as HitTrax shall designate. I acknowledge that HitTrax has informed me that if I am selected to be a Participant in the Tournament, I shall be participating in a highly strenuous physical competition, and, because of the nature of the Tournament, I acknowledge that I could experience injuries and/or medical conditions that may result in a period of incapacitation and/or inability to participate in more normal work and life activities or be able to compete in subsequent athletic competitions. With full knowledge of my current physical and mental condition, I am voluntarily agreeing to participate in the Tournament and I assume any and all risk associated therewith. I understand and agree that I will be participating in extended and strenuous physical activity during my participation in the Tournament and I know of no reason why I should not be able to participate in such extended and strenuous physical activity throughout the course of production. By participating in the Tournament, I am expressly representing and warranting to HitTrax that I do not possess nor am I affected by any physical, emotional, psychological, or mental health issues that will in any way affect my participation in the Tournament. Without limiting the generality of any release set forth herein, I hereby expressly release, indemnify, discharge and hold harmless HitTrax, the Network and the other Released Parties (as defined herein) for and from any and all claims and liability in any way relating to (a) my failure to honestly and accurately reveal to HitTrax my complete medical history and information regarding my current medical condition and/or (b) any adverse consequences or outcomes that may result from my participation in the Tournament, whether such participation is done without, in accordance with, or against the advice of my own physician or any other physicians.
6. I acknowledge and understand that the use of the film, tape, audio and other recordings that will be made of me, and the disclosure of personal or other information about me and my family in connection with the Tournament, the Website and the advertising, promotion and publicity therefor could be considered by me and my family to be a serious invasion of my privacy. Nonetheless, I hereby give my express, unconditional and irrevocable permission to HitTrax to fully exploit all such Materials. Without limiting the generality of any release set forth herein, I hereby expressly release, indemnify, discharge and hold harmless HitTrax, Network and the other Released Parties (as defined herein) for and from any and all claims and liability asserting violation of my rights of privacy, intentional or negligent infliction of emotional distress, defamation, and/or any other torts and/or damages in any way relating to the disclosure of personal or other information about me and/or use of the film, tape, audio and other recordings that will be made of me, in connection with the Tournament, the Website or otherwise.
7. I understand that, in and in connection with the Tournament and the Website, I may reveal and/or relate, and other parties may reveal and/or relate information, facts and opinions about me of a personal, private, intimate, surprising, defamatory, disparaging, embarrassing or unfavorable nature. I further understand that my appearance, depiction and/or portrayal in the Tournament or on the Website (and in advertisements, promotions and publicity for the Tournament, the Website and for the Network (the “Advertisements”)), and my actions and the actions of others displayed in the Tournament, on the Website and in Advertisements, may be disparaging, defamatory, embarrassing or of an otherwise unfavorable nature and may expose me to public ridicule, humiliation or condemnation. I acknowledge and agree that HitTrax shall have the right (a) to include any such information and any such appearance, depiction, portrayal, actions and statements in the Tournament, on the Website and in Advertisements as edited by HitTrax in its sole discretion, and (b) to broadcast and otherwise exploit the Tournament, the Website and Advertisements containing any such information and any such appearance, depiction, portrayal or actions. The waivers, releases and indemnities in this Agreement and any other agreement that I may execute in connection with the Tournament and the Website expressly apply to any such inclusion and exploitation. Without limiting the generality of any release set forth herein, I hereby expressly release, indemnify, discharge and hold harmless HitTrax, other Participants, Network and the other Released Parties (as defined herein) for and from any and all claims and liabilities arising out of or in connection with, or predicated upon, any rights of privacy, intentional or negligent infliction of emotional distress, defamation, and/or any other tort and/or damages in any way relating to (i) the disclosure, display, exhibition or other use of personal or other information about me and (ii) the broadcast, display, distribution, or other exploitation of the Material in connection with the Tournament, the Website or in any Advertisements.
8. I agree that any expenses that I incur in connection with my participation in the Tournament, including, without limitation, meals, travel, lodging, equipment, facility fees and/or equipment, shall be my sole responsibility and HitTrax shall have no obligation to reimburse me for any such amounts.
9. In connection with my participation in the Tournament, I shall not harass, intimidate, or infringe upon or violate the rights of, any other person or entity. I shall not intentionally cause injury or harm to any other person participating in the Tournament and will abide by all Participant rules of conduct and all applicable local laws and regulations including, without limitation, the Rules. I understand that my violation of this provision may lead to my disqualification from the Tournament.
10. I agree not to damage other real or personal property I may visit or come into contact with during my participation in the Tournament, including but not limited to any gyms, practice facilities, lodging facilities, or other places I may visit in the course of my participation in the Tournament. I will not tamper with or hinder in any way the technical equipment that is installed for the Tournament or otherwise used for purposes of recording me and the other Participants.
11. I acknowledge and understand that HitTrax may delay, suspend, terminate or abandon production of the Tournament at any time, for any reason, without any obligation to me whatsoever. I understand and acknowledge that I may withdraw as a Participant in the Tournament at any time, provided, however, that no such withdrawal shall affect any of the rights assigned by me or any of the covenants, agreements, waivers, releases or indemnities made by me in this Agreement or any other agreement related to the Tournament all of which shall survive. In particular, but without in any way limiting the generality of the foregoing, any such withdrawal, or my taking of any action rendering me ineligible or otherwise unable to participate in the Tournament, shall not affect: (a) any of the rights I have assigned to HitTrax or others in this Agreement or any other agreement relating to the Tournament including, without limitation, those rights in and to the Material, and (b) any of the covenants, agreements, waivers, releases or indemnities I have made in this Agreement or any other agreement related to the Tournament. If I voluntarily withdraw from the Tournament, I shall forfeit any prize or other consideration already received or to which I may be otherwise be entitled to unless otherwise provided Rules.
12. In case of an emergency, I authorize HitTrax to arrange for or provide such medical assistance to me as it determines necessary. I also authorize any licensed physician, health care personnel and/or medical facility to provide any medical/surgical care and/or hospitalization of me, including anesthetics, which such licensed physician, health care personnel and/or medical facility determines necessary or advisable. I authorize any reasonably necessary care by paramedics.
ELIGIBILITY, DISCLOSURES, COVENANTS, REPRESENTATIONS AND WARRANTIES
13. I am eighteen (18) years of age or older.
14. I currently have, or had during the 2020 calendar year, either (a) a contract with one of the thirty (30) Major League Baseball clubs (“MLB Clubs”) but am currently not on any MLB Club’s active forty (40) man roster, (b) a roster spot on an Olympic qualified team that would compete in the 2020 Tokyo Games, or (c) a contract with a professional softball organization.
15. I am legally authorized to enter the United States of America and thereby eligible to compete and perform in the Tournament throughout the duration of the event.
16. (a) I have not been arrested, charged with or convicted of a violent felony, in each case that has resulted in any term of imprisonment or any form of incarceration within the last seven (7) years, (b) I have not been arrested for any sexual offense, irrespective of whether a conviction led to imprisonment or any form of incarceration, and (c) I am not identified on the Specially Designated Nationals and Blocked Persons List issued by the U.S. Treasury Department’s Office of Foreign Assets Control.
17. I agree that, if I am selected by HitTrax to be a Participant, my appearance as a Participant in the Tournament is not employment and is not subject to any union or guild collective bargaining agreement, regardless of whether I am a member of any union or guild, and does not entitle me to wages, salary, benefits, or other compensation under any such collective bargaining agreement or otherwise.
18. I understand that selection of Participants shall be made by HitTrax based on such criteria as HitTrax shall determine in its sole discretion, which may be subjective and in the exercise of HitTrax’s sole discretion. HitTrax is not obligated to select me, even if I otherwise meet all eligibility requirements and all criteria for selection. HitTrax’s decision regarding the selection of Participants is final, binding and not subject to challenge or appeal. I understand that if I am selected, HitTrax is not obligated to have me appear in the Tournament or on the Website and HitTrax shall have the right at all times and in its sole discretion to remove or replace me as a Participant in connection with the Tournament for any reason. Without limitation to any other provision set forth herein, I understand and agree that all of HitTrax’s decisions in connection with the Tournament and my participation therein shall be final and binding in all respects.
19. I will not bring any illegal drugs, weapons or other illicit items to the Tournament and I will not engage in any weapons use, illegal drug use, or any other illegal activities during my participation in the Tournament.
20. I shall pay all applicable state and federal or other taxes (including without limitation income taxes and all property taxes due, if applicable) on the value of any money, goods, services, and/or any other consideration that I may be entitled to receive in connection with the Tournament, including, without limitation, if I receive any share of any prize from the Tournament. I understand and acknowledge that HitTrax strongly recommends that I consult with an accountant or other financial advisor to determine the effect of any tax laws with regard to my participation in the Tournament.
RELEASE AND INDEMNITY
21. As used in this Agreement, (a) the term “Releasing Parties” means and refers to each of me, my heirs, next of kin, spouse (or spousal equivalent/life partner), minor, guardians, legal representatives, executors, administrators, successors and assigns and (b) the term “Released Parties” means and refers to each of HitTrax, any Network, sponsors of the Tournament or the Website, and each of their respective parents, subsidiaries, affiliates, successors and assigns, and their respective directors, officers, employees, agents, contractors, subcontractors, partners, shareholders, representatives and members of each of the foregoing entities, and their heirs, next of kin, spouse (or spousal equivalent/life partner), minor, guardians, legal representatives, executors, administrators, successors and assigns.
22. ON BEHALF OF MYSELF AND THE OTHER RELEASING PARTIES, I HEREBY UNCONDITIONALLY AND IRREVOCABLY AGREE THAT I AND THE RELEASING PARTIES WILL NOT SUE OR CLAIM AGAINST ANY OF THE PARTICIPANTS IN THE TOURNAMENT, OR ANY OF THEIR HEIRS, NEXT OF KIN, SPOUSES, GUARDIANS, LEGAL REPRESENTATIVES, EXECUTORS, ADMINISTRATORS, SUCCESSORS AND ASSIGNS, OR THE RELEASED PARTIES FOR ANY INJURY, ILLNESS, DISEASE, TRESPASS, DAMAGE, LOSS OR HARM TO ME OR MY PROPERTY, OR MY DEATH, HOWSOEVER CAUSED, RESULTING OR ARISING OUT OF OR IN CONNECTION WITH MY APPLICATION OR PREPARATION FOR, PARTICIPATION AND APPEARANCE IN OR ELIMINATION FROM THE TOURNAMENT OR ACTIVITIES ASSOCIATED WITH THE TOURNAMENT OR THE WEBSITE, WHETHER OCCURRING BEFORE, DURING OR AFTER MY ACTUAL PARTICIPATION IN THE TOURNAMENT, AND WHETHER OR NOT CAUSED BY OR ARISING OUT OF THE ACT OR OMISSION OF ANY PARTY, INCLUDING WITHOUT LIMITATION ANY OF THE RELEASED PARTIES OR ANY OF THE PARTICIPANTS IN THE TOURNAMENT.
23. I AND THE OTHER RELEASING PARTIES HEREBY UNCONDITIONALLY AND IRREVOCABLY RELEASE AND FOREVER DISCHARGE EACH OF THE OTHER PARTICIPANTS IN THE TOURNAMENT, EACH OF THEIR HEIRS, NEXT OF KIN, SPOUSES, GUARDIANS, LEGAL REPRESENTATIVES, EXECUTORS, ADMINISTRATORS, SUCCESSORS AND ASSIGNS, AND THE RELEASED PARTIES FROM AND AGAINST ANY AND ALL CLAIMS, LIENS, AGREEMENTS, CONTRACTS, ACTIONS, SUITS, COSTS, ATTORNEYS’ FEES, DAMAGES, JUDGMENTS, ORDERS AND LIABILITIES OF WHATEVER KIND OR NATURE IN LAW, EQUITY OR OTHERWISE, WHETHER NOW KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, AND WHETHER OR NOT CONCEALED OR HIDDEN (COLLECTIVELY, THE “RELEASED CLAIMS”) ARISING OUT OF OR IN CONNECTION WITH APPLICATION OR PREPARATION FOR, PARTICIPATION AND APPEARANCE IN THE TOURNAMENT, THE WEBSITE OR ACTIVITIES ASSOCIATED WITH THE TOURNAMENT OR THE WEBSITE (INCLUDING WITHOUT LIMITATION MY PREPARATION FOR THE TOURNAMENT AND ANY TRAVEL I MAY UNDERTAKE IN CONNECTION WITH THE TOURNAMENT), WHETHER OCCURRING BEFORE, DURING OR AFTER MY ACTUAL PARTICIPATION IN THE TOURNAMENT, OR THE PRODUCTION AND EXPLOITATION OF THE TOURNAMENT THE WEBSITE OR NETWORK’S EXHIBITION OF THE TOURNAMENT, OR HITTRAX’S OR ITS LICENSEES’ OR ASSIGNS, INCLUDING HITTRAX’S OR NETWORK’S EXERCISE OF ANY RIGHTS GRANTED BY ME IN THIS AGREEMENT, INCLUDING WITHOUT LIMITATION CLAIMS FOR ANY INJURY, ILLNESS, DAMAGE, LOSS OR HARM TO ME OR MY PROPERTY, OR MY DEATH, OR ANY INJURY, ILLNESS, DISEASE, DAMAGE, TRESPASS, LOSS OR HARM TO ANY RELEASING PARTIES OR ANY THIRD PARTIES OR ANY OF THEIR PROPERTY, OR THE DEATH OF ANY RELEASING PARTIES OR ANY THIRD PARTIES. THE RELEASED CLAIMS SHALL INCLUDE BUT NOT BE LIMITED TO THOSE BASED ON NEGLIGENCE OR GROSS NEGLIGENCE OF ANY OF THE RELEASED PARTIES OR ANY OF THE OTHER PARTICIPANTS IN THE TOURNAMENT, WRONGFUL DEATH, PERSONAL INJURY, INFLICTION OF EMOTIONAL DISTRESS (BOTH NEGLIGENT AND INTENTIONAL), PRODUCTS LIABILITY, BREACH OF CONTRACT, BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE OWED UNDER APPLICABLE LAWS, LIBEL, SLANDER, DEFAMATION, INVASION OF PRIVACY, VIOLATION OF ANY RIGHT OF PUBLICITY OR PERSONALITY, INFRINGEMENT OF COPYRIGHT OR TRADEMARK, LOSS OF EARNINGS OR POTENTIAL EARNINGS, AND THOSE BASED ON MY DISSATISFACTION WITH ANY GOODS OR SERVICES RECEIVED IN CONNECTION THEREWITH.
24. I AND THE OTHER RELEASING PARTIES IRREVOCABLY AGREE TO RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS EACH OF THE RELEASED PARTIES FROM AND AGAINST ANY AND ALL CLAIMS OR ACTIONS, OF ANY KIND OR NATURE WHATSOEVER, BY WHOMEVER ASSERTED ARISING OUT OF OR IN CONNECTION WITH (A) ANY BREACH OR ALLEGED BREACH OF ANY AGREEMENT, COVENANT, REPRESENTATION, WARRANTY MADE BY ME IN THIS AGREEMENT AND/OR (B) MY APPLICATION, TRAVEL IN CONNECTION WITH, AND PREPARATION FOR, PARTICIPATION AND APPEARANCE IN OR ELIMINATION FROM THE TOURNAMENT OR THE ACTIVITIES ASSOCIATED WITH THE TOURNAMENT, THE WEBSITE, WHETHER OCCURRING BEFORE, DURING OR AFTER MY ACTUAL PARTICIPATION IN THE TOURNAMENT, INCLUDING WITHOUT LIMITATION ANY INJURY, ILLNESS, DAMAGE, LOSS, HARM OR DEATH I OR ANY RELEASING PARTIES OR ANY THIRD PARTIES MAY SUFFER THEREFROM AND ANY STATEMENT, ACTION OR OMISSION OF MINE DURING OR IN CONNECTION WITH THE TOURNAMENT, WEBSITE OR RESULTING DIRECTLY OR INDIRECTLY FROM THE TOURNAMENT (WHETHER BEFORE, DURING OR AFTER MY ACTUAL PARTICIPATION IN THE TOURNAMENT), THE WEBSITE AND MY DISSATISFACTION WITH ANY GOODS OR SERVICES RECEIVED IN CONNECTION THEREWITH; AND (C) THE USE OR EXPLOITATION OF ANY OF THE RIGHTS I HAVE GRANTED HEREIN.
MISCELLANEOUS
25. I agree that I shall not disparage any of the Released Parties, and all those connected with them, individually or in their official capacities, the Tournament or HitTrax’s past, present or future product offerings, in any manner.
26. I shall not at any time use any of HitTrax’s, the Website’s, the Network’s or any Advertiser’s names, logos, trade names or trademarks (including, but not limited to, the title of the Tournament), or those of any of HitTrax’s, the Website’s, the Network’s or any Advertiser’s related companies, in any capacity whatsoever, whether on a website or any other social media outlet, in connection with any media appearance or other type of appearance I may make or any kind of advertising, promotion, publicity, merchandise, or other product or service, unless authorized by HitTrax to do so.
27. I recognize that a breach by me of this Agreement would cause HitTrax and Network irreparable injury and damage that cannot be reasonably or adequately compensated by damages in an action at law and, therefore, I hereby expressly agree that HitTrax and Network shall be entitled to injunctive and other equitable relief, without posting any bond, to prevent and/or cure any breach or threatened breach of this Agreement by me. In addition, I acknowledge and agree that HitTrax and/or Network may seek and obtain, recovery or disgorgement of any monies or other consideration received by me for or in connection with any breach of this Agreement and recovery of HitTrax’s and Network’s attorneys’ fees incurred to enforce this Agreement.
28. Nothing herein contained shall be deemed to constitute an employment relationship, joint venture or partnership between me and the Released Parties, nor shall I be deemed HitTrax’s (or any of the Released Parties) agent for any purpose.
29. Any waiver of any term of this Agreement in a particular instance shall not be a waiver of such term for the future. I agree that the invalidity or enforceability of any part of this Agreement shall in no way affect the validity or enforceability of any of the remainder of this Agreement.
30. The Rules and this Agreement constitute the entire agreement and understanding between the parties, and supersede and replace all prior discussions or negotiations, and any representations and warranties made by HitTrax concerning the subject matter hereof. This Agreement cannot be changed or terminated except by a written instrument signed by the parties hereto. The releases contained herein shall not, negate, undermine or derogate from, in any way, any written representations or warranties or releases that I may have previously or otherwise made to HitTrax.
31. I acknowledge that no other party, nor any agent or attorney of any other party, has made any promise, representation or warranty whatsoever, express or implied, not contained herein concerning the subject matter hereof, to induce me to execute this document, and acknowledge that I have not executed this instrument in reliance on any such promise, representation, or warranty not contained herein.
32. This Agreement shall bind and inure to the benefit of the parties hereto and their respective successors, assigns, heirs, legal representatives, administrators, executors, and guardians. This Agreement is personal to me and is not assignable nor delegable by me and any purported assignment by me shall be null and void ab initio. This Agreement (and any of HitTrax’s rights or obligations hereunder) may be freely assigned by HitTrax, in whole or in part.
33. I agree to execute and deliver to HitTrax any other documents that HitTrax considers necessary or desirable to evidence, effectuate or enforce this Agreement or any of the terms and conditions hereof. I hereby appoint HitTrax my true and lawful attorney-in-fact to execute and deliver any such documents in the event I fail or refuse to do so in accordance with this Agreement promptly after HitTrax’s written request therefor (which appointment is deemed a power coupled with an interest and irrevocable under any and all circumstances).
34. This Agreement shall be deemed to be entered into in Suffolk County, Massachusetts, and shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts applicable to agreements executed and performed entirely within the Commonwealth of Massachusetts. Any action, proceeding or litigation concerning this Agreement or my appearance or participation in the Tournament may only be brought in the Commonwealth of Massachusetts, and I hereby agree that the state and Federal located within Suffolk County, Massachusetts, shall have exclusive jurisdiction over me and the subject matter of any such proceeding.
35. I agree that any and all disputes or controversies arising under this Agreement or any of its terms, any effort by any party to enforce, interpret, construe, rescind, terminate or annul this Agreement, or any provision thereof, and any and all disputes or controversies relating to my appearance or participation in the Tournament or the Website , shall be resolved by binding arbitration by an independent arbitrator selected by HitTrax. All arbitration proceedings shall be conducted under the auspices of the American Arbitration Association, under its Commercial Arbitration Rules, through its Boston, Massachusetts office. I agree that the arbitrator’s ruling, or arbitrators’ ruling, as applicable, in the arbitration shall be final and binding and not subject to appeal or challenge. I further agree that the arbitration proceedings, testimony, discovery and documents filed in the course of such proceedings, including the fact that the arbitration is being conducted, will be treated as confidential and will not be disclosed to any third party to such proceedings, except the arbitrator(s) and their staff, the parties’ attorneys and their staff, and any experts retained by the parties. The parties agree that an Arbitrator may not award any remedy inconsistent with this Agreement and in no event shall any party be entitled to recover punitive or exemplary damages or to rescind this Agreement or to seek injunctive or any other equitable relief.
36. Without limitation of any other provision in this Agreement, my remedies for any breach of this Agreement by HitTrax or others will be limited to damages and in no event will I be entitled, and hereby waive my right, to rescind this Agreement or to seek or receive injunctive or any other equitable relief.
37. Unless I obtain the prior written consent of HitTrax, I shall not mention or “plug” any commercial product, service, venture or thing in connection with the Tournament including the name of my employer. Except for the benefits being provided by HitTrax as specifically set forth in this Agreement, I am not, and no one acting on my behalf is, giving or receiving, nor have I or anyone acting on my behalf given or received, any monies or other valuable consideration in connection with my appearance in the Tournament, and I have not authorized and will not authorize, and no one acting on my behalf has authorized or will authorize, anyone else to do so. I am aware that payment or acceptance of, or agreement to pay or accept, any money or valuable consideration for the appearance of any person or the mention of anything in connection with the Tournament without disclosure to HitTrax, the Network or other broadcaster prior to broadcast is a federal offense punishable by fine and/or imprisonment. I shall obtain HitTrax’s prior written consent in the event that I receive compensation from third parties or sponsorship, I agree that if anyone tries to induce me to make any such product mention or placement or to do any such act or accept any such money or consideration, I shall immediately notify HitTrax and the Network’s Standards and Practices representative. I shall refrain from gambling and from associating with those who gamble in connection with the Tournament. If am found to be involved with gambling in association or in connection with the Tournament, including having taken any form of consideration, whether directly or indirectly from those who gamble in connection with the Tournament, I shall be disqualified from the Tournament and shall be banned for life from competing in the Tournament in future years.
38. I understand and agree that any Network that may broadcast content developed by HitTrax in the course of the production of the Tournament is a third party beneficiary of this Agreement, and I acknowledge and agree that my performance of any and all obligations, releases, grants, rights and waivers under this Agreement is intended to benefit the Network.
39. I have been given ample opportunity to read, and I have carefully read, this entire Agreement. I represent and warrant that I have the full right, power and authority to grant the rights granted in this Agreement. I certify that I have made such an investigation of the facts pertinent to this Agreement and of all the matters pertaining thereto as I have deemed necessary, that I fully understand the contents of this Agreement, that I am of sound mind, and that I intend to be legally bound by this Agreement. I am aware that this Agreement is, among other things, a release of liability for future injuries and damages and a contract between myself and HitTrax and/or its affiliated organizations, and that I am signing this Agreement of my own free will. All statements made by me in, and any and all information and/or material provided by me in connection with, this Agreement and any exhibits or attachments or related documents thereto are true. I understand that in the event that HitTrax or its agents or any other entity discovers or decides, in its sole determination, that I or anyone else associated with me has made a false or misleading statement as part of my application in general or in any specific document or interview, HitTrax has the right, but not the obligation, to remove me from consideration as a Participant for the Tournament or to remove me from or not include me in the Tournament if I have already been selected as a Participant, and any prizes or other consideration furnished or delivered to me shall be subject to forfeiture and/or reimbursement of their value to HitTrax and I will not be entitled to any consideration or be eligible to share in any prize. I represent and warrant that I have reviewed this document with my own legal counsel prior to accepting its terms (or, IN THE ALTERNATIVE, although I have been given a reasonable opportunity to discuss this Agreement with counsel of my choice, I have voluntarily declined such opportunity).
BY CLICKING THE “I ACCEPT” BOX AND CLICKING THE “SUBMIT” BUTTON BELOW, I ACKNOWLEDGE AND AGREE THAT (A) I AM CREATING A BINDING OBLIGATION BETWEEN MYSELF AND HITTRAX, (B) I HAVE READ AND UNDERSTAND AND AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT (INCLUDING THE RULES) WITHOUT CHANGE, AS THE RULES MAY BE UPDATED FROM TIME TO TIME IN ACCORDANCE WITH THIS AGREEMENT.
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