The Terms and Conditions set forth for the License of HitTrax software ARE defined in the following HITTRAX SOFTWARE LICENSE AGREEMENT (“Agreement”) between InMotion Systems, LLC, d/b/a HitTrax and CUSTOMER (the “Licensee”).  Each of HitTrax and the Licensee are sometimes referred to herein as a “Party” and, collectively, the “Parties”.

WHEREAS, HitTrax owns and provides hardware with integrated proprietary software used for the capture of baseball or softball performance metrics and for the presentation of graphical and simulation displays reflecting the results of player and ball movement, as detailed more specifically in Section 3.1 below (the “Software”);

WHEREAS, Licensee desires to use the Software detailed at Exhibit A (the “SOFTWARE”) to capture performance information relating to player and/or advanced ball measurements captured by the HitTrax system.

WHEREAS, Licensee agrees to compensate HitTrax for Licensee’s use of the Software as set forth in more detail herein; and 

WHEREAS, the Parties seek hereby to memorialize their understanding about their rights, their obligations and the payment and other terms applicable to HitTrax’s provision of, and Licensee’s and the Customers’ use the Software.

NOW THEREFORE, in consideration of the mutual promises and undertakings set forth herein, the Parties agree as follows:

1. Licensee’s Purchase of and Use of Software.

1.1. Software Furnished to Licensee.  HitTrax will sell to Licensee the SOFTWARE according to the purchase terms detailed in Section 2 below.

1.2. Software License.  Subject to and conditioned on Licensee’s payment of all applicable fees as set forth below in Section 2 of this Agreement and to Licensee’s compliance with all other terms and conditions of this Agreement, HitTrax hereby grants to Licensee a limited, non-exclusive, non-sublicensable, non-transferable and revocable license to use the Software solely in connection with the specific HitTrax Equipment purchased by Licensee, solely at Licensee’s location(s). 

1.3. Location and Nature of Use.  Licensee’s license to use the Software is limited to Licensee’s use of the software specifically at the Premises.  Licensee’s use of the Software at any other location is expressly prohibited.  The Parties agree that HitTrax will not be liable or responsible for incidents arising from use of the Software or Equipment outside the scope of this licensed use or from use that is inconsistent with guidelines or specifications that HitTrax may provide to Licensee from time to time.

1.4 License Restrictions. Except as this Agreement expressly permits, Licensee shall not, and shall not permit any other person to:

1.4.1. copy the Software, in whole or in part;

1.4.2. modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any Software;

1.4.3. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software to any third party;

1.4.4. reverse engineer, disassemble, decompile, decode, or adapt the Software, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part;

1.4.5. bypass or breach any security device or protection used for or contained in the Software;

1.4.6. remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of the documentation, warranties, disclaimers, proprietary rights notices or other symbols, notices, marks, or serial numbers on or relating to the Equipment of the Software;

1.4.7. use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property or other right of any person, or that violates any applicable law;

1.4.8 use the Software for purposes of: (i) benchmarking or competitive analysis of the Software; (ii) developing, using, or providing a competing software product or service; or (iii) any other purpose that is to HitTrax’s detriment or commercial disadvantage;

1.4.9. use the Software in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software could lead to personal injury or severe physical or property damage; or

1.4.10. use the Software in violation of the restrictions below in Section 1.5 or for any purpose or application not expressly permitted by this Agreement

1.5 Restrictions.  Licensee shall not use the Software or Equipment to record, post, upload, transmit or share any video or other content that:

• is false, inaccurate or misleading;
• is obscene or indecent;
• infringes any copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy of any party;
• is defamatory, libelous, threatening, abusive, hateful, or contains pornography;
• contains unsolicited or unauthorized advertisements, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; or
• contains any private information of any third party, including, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers.

2. Payment.

2.1 Software Subscription Fees. Subject to the terms and conditions of this Agreement and any terms that Licensee assents to at the time of registering for its account at the HitTrax website, Licensee shall pay the Software subscription fees described at Exhibit A on a monthly or annual basis.  Payment of such Software fees shall be affected by HitTrax’s using a third-party payment intermediary service to charge a payment card, the details of which Licensee shall enter online at within Licensee’s account.

2.2 Software Fees During Renewal Terms. The Software Fees are fixed during the Initial Term at the amount indicated at Exhibit A. HitTrax may increase the Software fees for any Renewal Term by providing written notice to Licensee at least sixty (60) calendar days prior to the commencement of such Renewal Term. No increase in Software fees is effective unless made in compliance with the provisions of this Section 2.3.

2.3 Annual or Monthly Payments.  Licensee’s payment of all Software fees shall be paid by Licensee’s credit card on either an annual or monthly basis. 

3. Licensee Obligations.

3.1 Use of HitTrax Branding.  Subject to this Agreement’s terms and conditions, HitTrax hereby grants to Licensee during the Term a non-exclusive, non-transferable (except as provided in Section 12.7), non-sublicensable license to use the trademark HITTRAX and the HitTrax logo as a stand-alone mark (not overlapping or integrated with any Licensee trademark or graphic) in connection with Licensee’s promotion of its offering the Equipment, Software and HitTrax Platform.  To the extent that Licensee uses a logo graphic featuring the HITTRAX trademark, Licensee will only use a graphic provided by HitTrax with no alteration.  Licensee shall not use the mark HITTRAX (or any mark confusingly similar thereto), individually or in combination, as part of (a) its corporate or trade name, (b) any domain name, or (c) social media handles.  Licensee shall ensure that all marketing materials, descriptive literature, and all other materials carrying the HITTRAX mark, be marked with the appropriate trademark notices in accordance with HitTrax’s guidelines.

4. Proprietary Rights in Software, HitTrax Platform and Content. 

4.1 Ownership of Software, HitTrax Platform and Content.  The Software and all content furnished by, created by, uploaded to or accessible on or via the Software, including videography, designs, computer code, text, graphics, pictures, music, sound, data (including Customer personal information) and other works and their selection and arrangement (the “Content”) is the property of HitTrax.  Subject to the provisions of Section 4.3 below, Licensee shall, and hereby does, immediately on capturing data using the Software, assign, transfer, and otherwise irrevocably convey to HitTrax all right, title, and interest in and to such 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.  Other than as set forth below within this Section 4, the Content, including the above-identified data, may not be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without HitTrax’s prior written permission. 

4.2 Limited License to Use Software and Content. Subject to the terms of this Agreement, HitTrax grants to Licensee a limited, non-transferable, non-sublicensable and revocable license only during the Term to upload, access and use the Software and Content solely with respect to Content that relates to players that Licensee or a Customer at Licensee’s facility uploads for purposes of inclusion in Licensee advertisements and promotional videos, provided that in distributing or displaying the Content within advertisements or promotional videos (i.e, including both still images and videos) Licensee shall do so in compliance with all laws and regulations and shall obtain appropriate consents from the individuals featured in or identified by the Content (or their parents or guardians, as appropriate) used in any such advertisements or promotional video.  Any other use of the Software not expressly authorized in this Agreement is strictly prohibited. 

4.3 Reservation of Rights.  HitTrax hereby reserves all rights not expressly granted to Licensee under this Agreement.

5. Proprietary Rights in Software.  Licensee agrees that:

5.1 the Software is licensed, not sold, to Licensee by HitTrax and Licensee does not have under or in connection with this Agreement any ownership interest in the Software or in any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights (“Intellectual Property”) embodied or incorporated in the Software, and Licensee shall take no action inconsistent with such understanding; and

5.2 HitTrax is the sole and exclusive owners of all right, title, and interest in and to the Software or the HitTrax Platform, including all Intellectual Property embodied or incorporated therein, subject only to the limited license granted to Licensee under this Agreement, and Licensee shall take no action inconsistent with such understanding.

6. Compliance with Laws; Trademarks.

6.1 Compliance with Laws.  Each Party hereby covenants and agrees that it shall abide by all applicable local, state, national and foreign laws, treaties, and regulations in connection with its performance under this Agreement.

6.2 Licensee Marks.  During the term of this Agreement, and subject to the terms hereof, the Licensee agrees that HitTrax may display the Licensee’s name, marks, and logos (collectively, the “Licensee Marks”) as HitTrax deems appropriate on hard copy and electronic marketing (e.g., the HitTrax website) and promotional materials.  HitTrax acknowledges that the Licensee owns all rights, title, and interest in the Licensee Marks and that HitTrax has no rights therein. 

6.3 HitTrax Marks.  During the term of this Agreement, and subject to the terms hereof, HitTrax agrees that the Licensee may use HitTrax’s name, marks, and logos (collectively, the “HitTrax Marks”) as appropriate and necessary in connection with the Licensee’s services, including, without limitation, in connection with marketing and promotional efforts related to the same.  Licensee acknowledges that HitTrax owns all rights, title, and interest in the HitTrax Marks and that the Licensee has no rights therein other than the limited license granted herein.  All usages of the HitTrax Marks shall be preapproved by HitTrax, which approval shall not be unreasonably withheld, conditioned or delayed.

6.4 Major League Baseball Marks.  Licensee’s and its Customers’ use of the Software and the Equipment will result in the display of names, logos and other indicia that are proprietary to Major League Baseball and its clubs (“MLB”).  Such names, logos and other indicia are used by HitTrax pursuant to a license.  Licensee is able to display such names, logos and other indicia in marketing material that is shown in conjunction with the HitTrax software.  The Licensee is not permitted to use the names, logos, and other indicia separately from the HitTrax software.  Such prohibition includes, but is not limited to, the display of MLB names, logos and other indicia in connection with any kind of alcohol consumption or promotion.

6.5 Relief.  Each Party acknowledges and agrees that any breach of this Section 6 may result in irreparable and continuing damage to the non-breaching Party and damages may be inadequate compensation.  In the event of a breach of this Section 6, each Party agrees that the non-breaching Party will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction.

7. Insurance; Disclaimer of Warranties.

7.1 Insurance.  Licensee represents that it maintains, with a financially sound and reputable insurer, insurance coverage (including worker’s compensation and comprehensive liability coverage with contractual liability) with respect to the conduct of its activities hereunder against loss from such risks and in sufficient amounts to support its obligations hereunder.  Licensee agrees upon HitTrax’s request, to provide HitTrax with a Certificate of Insurance evidencing such coverage.

7.2 DISCLAIMER OF WARRANTIES.  THE SOFTWARE, EQUIPMENT AND ANY OTHER CONTENT, INFORMATION, FUNCTIONALITY, PRODUCTS OR SERVICES MADE AVAILABLE TO LICENSEE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  OTHER THAN THE LIMITED WARRANTY DESCRIBED IN SECTION 8.1 AND SECTION 10, HITTRAX DOES NOT MAKE AND DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO THE SOFTWARE, EQUIPMENT AND ANY OTHER CONTENT, INFORMATION AND FUNCTIONALITY MADE AVAILABLE TO LICENSEE, OR ANY ADVICE, OR DATABASE CONTENT PROVIDED TO THE EXTENT PERMITTED BY LAW.  HITTRAX DOES NOT WARRANT THAT ACCESS TO THE SOFTWARE, EQUIPMENT, CONTENT OR OTHER SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE SOFTWARE OR EQUIPMENT WILL BE CORRECTED, OR THAT THE SOFTWARE OR EQUIPMENT ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.

7.3 LIMITATION OF LIABILITY.  UNDER NO CIRCUMSTANCES SHALL HITTRAX, ITS PARTNERS, CONTRIBUTORS, AGENTS, EMPLOYEES, DIRECTORS, OR AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), THAT ARISE FROM LICENSEE’S USE OF THE SOFTWARE OR THE EQUIPMENT.  IN NO EVENT WILL THE AGGREGATE LIABILITY OF HITTRAX AND ITS LICENSORS, SUPPLIERS AND SERVICE PROVIDERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO HITTRAX UNDER THIS AGREEMENT IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

7.4 Indemnification.  Licensee agrees to indemnify and hold harmless HitTrax, its officers, employees, agents, subsidiaries, affiliates, and other partners (collectively the “Indemnified Parties”) from and against any claims, actions, or demands, liabilities and settlements including, without limitation, reasonable legal and accounting fees (collectively, “Claims”), arising out of or resulting from, or alleged to arise out of or result from, Licensee’s installation, use, handling, or storage of the Software or the Equipment.  For the avoidance of doubt, if any person brings a Claim against HitTrax alleging property damage or personal harm stemming from or resulting from Licensee’s or a Customer’s use of, installation of, transportation of the equipment, Licensee agrees to indemnify and hold harmless the Indemnified Parties with respect to such Claims.

8. Term of Agreement.

8.1 Term of Agreement. 

8.1.1. Initial Term.  The term of this Software License Agreement shall commence on the date of payment for use of the software license and shall continue for a period equal to the frequency of payment (monthly or annually).

8.1.2. Upon expiration of the initial term, this Agreement shall automatically renew for successive renewal terms of equal duration. 

8.2. Termination

8.2.1. Termination for breach.  Either Party shall have the right, by serving written notice at any time, to terminate this Agreement with immediate effect if the other Party commits any material breach of any of the provisions of this Agreement and, if the breach is capable of remedy, the other Party fails to cure that breach within thirty (30) days after the date of a written notice referring to this Section 9.2.1 and giving notice of that Party’s intention to terminate unless that breach is remedied within such time.  In the case of a breach that is incapable of cure, this Agreement may be terminated immediately at the non-breaching Party’s election upon written notice to the breaching Party.  For the purposes of this Section 9.2.1, a breach shall be considered capable of cure if the Party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).  For the avoidance of doubt, breaches of Sections 6 and 8 shall be considered incapable of cure.

8.2.2. Termination for Insolvency.  Either Party may terminate this Agreement immediately with written notice to the other Party in the event that the other Party dissolves or liquidates or ceases to engage in its business, files a petition in bankruptcy, is adjudicated as bankrupt or files a petition or otherwise seeks relief under or pursuant to any bankruptcy, insolvency or reorganization statute or proceeding, or if a petition in bankruptcy is filed against the other Party and is not discharged within sixty (60) days thereafter or if the other Party makes an assignment for the benefit of its creditors or if a custodian, receiver or trustee is appointed for it or for a substantial portion of its business or assets and such appointment is not discharged within sixty (60) days thereafter.

8.3. Effect of Termination. 

8.3.1. Payment of Amounts Due. Upon termination of this Agreement, HitTrax shall debit a final monthly charge using the stored payment information in account. 

8.3.2. Surviving Provisions. The provisions in Section 4.1, Section 5, Section 7 as well as any clauses of this Agreement that would by their very nature survive the termination of this Agreement will survive the termination or expiration of this Agreement. 

9. HitTrax’s Limited Equipment Warranty.  InMotion Systems warrants to Licensee that:

9.1 HitTrax warrants software in accordance with this Agreement to be reasonably free from operating defects under normal and proper use.  All software related bugs should be reported in writing and HitTrax will work to rectify issues in a reasonable amount of time.  In no event shall HitTrax be liable for loss of profits, indirect, special, incidental, or consequential damages arising out of any breach of this Agreement or obligations of this Agreement.  HitTrax’s liability under this Agreement shall in no event exceed the purchase price of the license or cost of system.

10. General Provisions

10.1. All Amendments in Writing.  No wavier, amendment or modification of any provisions of this Agreement will be effective unless it is in writing, prepared as an amendment referencing this Agreement and signed by duly authorized representatives of both Parties. Furthermore, no provisions in either Party’s purchase orders, invoices or other business forms employed by either Party will have any force or effect.

10.2. Delay is Not Waiver.  No failure or delay by either Party in exercising any right, power or remedy under this Agreement, except as specifically provided in this Agreement, will operate as a waiver of any such right, power, or remedy.

10.3. Severability.  If any provision of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such provision will be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with such statue, regulation, ordinance, order or rule, and the remaining provisions of this Agreement will remain in full force and effect.

10.4. Choice of Law; Venue.  This Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to the choice of law provisions thereof.  Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Massachusetts in each case located in the city of Boston and County of Suffolk, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.

10.5. Entire Agreement.  This Agreement (including the Exhibits hereto), and all other attachments, exhibits and other supplements that are incorporated into this Agreement constitute the entire agreement between the Parties with respect to the matters contained in this Agreement and supersede all prior or contemporaneous oral or written representations and agreements.

10.6. No Reliance on Oral Representations.  Each Party agrees and stipulates that neither relies on any oral representation made by or on behalf of the other. All terms of the contract between the Parties are contained in the Agreement and exhibits hereto.

10.7. Assignment.  Licensee may only assign its rights or obligations under this Agreement with the prior written consent of HitTrax.  Notwithstanding the foregoing, Licensee may assign this Agreement or any portion thereof to any third party that acquires Licensee in a merger, sale of all or substantially all of Licensee’s assets or other similar transaction without the written consent of HitTrax.  This Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the Parties to this Agreement and their respective successors and permitted assigns.  

10.8. Headings. The headings contained in this Agreement are for convenience of reference only, are not to be considered a part of this Agreement and shall not limit or otherwise affect in any way its meaning or interpretation.

10.9. Notices.   All notices, demands, requests or other communications which may be or are required to be given, served, or sent by any Party to any other Party pursuant to this Agreement shall be in writing and shall be hand delivered, sent by certified mail, return receipt requested, sent by generally-recognized national “overnight” delivery courier service or sent via email with confirmed answer back, addressed to the address set forth in the introductory paragraph or at such other address indicated by a Party, in writing.  Documents delivered by hand shall be deemed to have been received upon delivery; documents sent by email shall be deemed to have been received when the answer back is received; documents sent by certified mail, courier service or fax shall be deemed to have been received upon their receipt, or at such time as delivery is refused by the addressee upon presentation.

10.10. Counterparts.  This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and both of which, taken together, shall constitute one agreement binding on both Parties.  A facsimile signature or other similar electronic reproduction of a signature shall have the force and effect of an original signature, and in the absence of an original signature, shall constitute the original signature.

10.11. Independent Contractor; No Agency; No Franchise. Each Party is acting as an independent contractor. This Agreement does not create an agency relationship, franchise, partnership, or joint venture. Neither Party will have any right, power, or authority to act or to create any obligation, express or implied, on behalf of the other.  Except as provided otherwise in this Agreement, Licensee has the sole discretion to determine Licensee’s methods of operation, Licensee’s accounting practices, the types and amounts of insurance Licensee carries, Licensee’s personnel practices, Licensee’s advertising and promotion, Licensee’s customers, and Licensee’s service areas and methods. During the term of this Agreement, the Licensee agrees that it shall not engage any third party that provides competing services and/or products with HitTrax.

10.12. Exclusivity.  During the Term, Licensee agrees that it shall not engage any third party that provides competing services and/or products with HitTrax.  Moreover, Licensee agrees during the term not to allow any video capture service that competes with HitTrax to record footage at Licensee’s business location or at Licensee’s tournaments or events, as the case may be.