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Batting Challenge Holdings, Inc.

TERMS OF SERVICE

Last Updated: July, 2023

Welcome, and thank you for your interest in Batting Challenge Holdings, Inc. We appreciate you reviewing and following these guidelines so that we can continue to provide you a real-life baseball/softball video game that combines the experience of hitting a live ball with digital gamification. These terms of service (“Terms”) are between you and Batting Challenge Holdings, Inc. (“Bat Around,” “we,” “our,” or “us”), and establish the terms that apply to you when you use the Service (as defined below).

 

BY USING THE SERVICE OR BY CLICKING “I AGREE” YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND YOUR AGREEMENT TO BE BOUND BY THESE TERMS. YOU MAY NOT USE THE SERVICE IF YOU DO NOT AGREE TO THESE TERMS. We are constantly improving the Service, so these Terms may need to change as we do. We can change these Terms at any time, and if we do, we will make reasonable efforts to provide you with prior notice of any material changes. Your continued use of the Service after any change to these Terms means that you accept the new version. You should consult these Terms each time you access the Service to view any changes. These Terms were last modified on the date indicated above.

 

AS DESCRIBED BELOW, THESE TERMS PROVIDE FOR THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND LIMIT THE REMEDIES AVAILABLE TO YOU IN A DISPUTE. YOU CAN OPT OUT OF THIS AGREEMENT TO ARBITRATE BY CONTACTING info@letsba WITHIN 30 DAYS AFTER FIRST ACCEPTING THESE TERMS AND STATING YOUR FIRST AND LAST NAME AND THAT YOU DECLINE THIS AGREEMENT TO ARBITRATE.

Please review our Privacy Policy (located at Privacy Policy link) which explains how we collect, use, and share information about you when you access or use the Service, and our Waiver and Release, which applies if you use the Service to participate in a game or otherwise use the Service at a batting cage or similar location. By accepting these Terms, you agree to the Privacy Policy and, if applicable, the Waiver.

1. Use of the Service.

A. Service. The “Service” includes: (1) Bat Around’s website (located at www.letsbataround.com) (the “Site”) and iOS and Android apps (the “Apps”) as may be updated, relocated, or otherwise modified from time to time; (2) the baseball/softball digital batting cage experience through the Apps and/or available at locations where that incorporate our software (“Participating Locations”); and (3) all content on the Site and Apps and all intellectual property rights arising out of or related to the foregoing. Any person who accesses or uses the Service, whether on their own behalf or on behalf of any third party, is a “User.

B. License. Subject to your compliance with these Terms, Bat Around hereby grants you a non-exclusive, revocable, non-transferable license to access the Site and to download a copy of the Apps; in each case, solely for your personal use.

 

2. Accounts; Registration; Restrictions.

A. Bat Around Users. To access most features of the Service, including signing up to play, you must register for an account. You must complete the registration process by providing us with current, complete, and accurate information, as prompted by the applicable registration form.

B. Accuracy of Information. You acknowledge that if you provide any information to us that is not current, complete, and accurate, Bat Around may terminate these Terms and your continued access and use of the Service. You agree to update your information if it is no longer current, complete, and accurate.

C. Eligibility. You represent and warrant that: (1) you are at least 18 years of age or your parent or guardian is participating in this registration and consents to your use of the Service; (2) you have not been previously suspended or removed from the Service; and (3) your registration and your use of the Service is in compliance with all applicable laws. Users under 18 years of age may use the Service only after a parent or guardian registers for them and agrees to these Terms.  Bat Around provides the Service from the United States. If you are using the Service from outside the United States, the Service may not be appropriate or permitted under applicable law. It is your responsibility to use the Service in accordance with all applicable law in any jurisdiction that applies to you.

D. Credentials. As part of the registration process, you might be asked to select a username, password, or other login credentials. You are responsible for maintaining the security and confidentiality of your login credentials. You agree to notify Bat Around immediately of any unauthorized use of your account or any other breach of security. To notify us, contact us at info@letsbataround.com. You are responsible for all use of the Service occurring under your account and all content posted with your account on the Service. You may not share your login credentials with any third party. Bat Around will not be liable for any loss that you incur as a result of someone else using your login credentials or account.

E. Your Responsibilities. You may use the Service solely for lawful purposes. If you use the Service at one of our Participating Locations, you must abide by the terms of the location and wear a batting helmet while playing through the Service. You may not (and you may not allow or assist any third party to):

  1. use, copy, modify, create derivative works, install, transfer, or distribute the Service, except as specifically described in these Terms and any usage limitations communicated to you;

  2. rent, lease, or otherwise permit third parties to use the Service, or reformat, mirror, or frame any portion of the Service;

  3. circumvent or disable any aspect of the Service, including security features, or probe, scan, or test the vulnerability of the System;

  4. gain unauthorized access to the Service, to other Users’ accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service;

  5. use the Service to distribute any viruses or other malicious code, or to transmit large amounts of data in a way that would be expected to have a detrimental effect on the Service;

  6. use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” or reproduce or circumvent the navigational structure or presentation of the Service or its contents;

  7. reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms related to the Service (except to the extent this restriction is prohibited by applicable law);

  8. use the Service to transmit (i) any content or information that is unlawful, fraudulent, threatening, harassing, abusive, hateful, libelous, defamatory, obscene or otherwise objectionable, (ii) any material, non-public information about individuals or companies without the authorization to do so, (iii) any trade secret of any third party, and/or (iv) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities, or other unsolicited commercial communication (except as otherwise expressly permitted by us), or engage in spamming or flooding;

  9. restrict, discourage, or inhibit any other User from using the Service;

  10. disclose personal information about a third party or another User on the Service or obtained from the Service without the consent of such third party or User, or solicit, harvest, or collect information about other Bat Around Users without their consent;

  11. violate any applicable federal, state, or local laws or regulations;

  12. use the Service in violation of Bat Around’s or any third party's intellectual property or other rights;

  13. express or imply that any statements you make are endorsed by Bat Around, without our prior written consent in each instance

  14. access or use the Service in connection with any high-risk activities, including negligent or reckless conduct that may lead to injury or death.

  15. access or use the Service to engage in, promote or encourage illegal activity, or for any unlawful, invasive, infringing, defamatory or fraudulent purpose; or

  16. access or use the Service to build a competing service.

 

We may take any legal action and implement any technical remedies to prevent the violation of these restrictions and to enforce these Terms.

 

3. Content Submitted to the Service.

A. User Content. Certain features of the Service may permit Users to upload and publish content to the Service, including uploading a photo of the User (“User Content”). You own any User Content you provide. Except as expressly described in these Terms, no ownership rights in the User Content are transferred to Bat Around by these Terms.

B. License to Bat Around. By sending us User Content or by posting or publishing it to the Service, you grant Bat Around and its designees a worldwide, non-exclusive, sublicenseable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publish, publicly display, and use such User Content in any media now known or hereafter developed, to provide the Service to you and other Users and to enhance and develop the Service, including by marketing and advertising the Service, without compensation to you.

C. Responsibility for User Content. You are solely responsible for your User Content and the consequences of posting it on the Service. You represent that you have the necessary rights to post any User Content, including photographs, that you post on the Service. None of the User Content will be subject to any obligation, whether of confidentiality, attribution, or otherwise, on our part and we will not be liable for any use or disclosure of any User Content. Bat Around may (but is not obligated to) remove or alter any User Content at any time for any reason. We neither endorse nor are responsible for any User Content. We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in messages, or for any results obtained from the use of such information. The opinions expressed on the Service by Users reflect solely the opinions of the Users and do not reflect the opinions of Bat Around. If you believe User Content violates these Terms or any policies we provide, please contact Bat Around immediately at info@letsbataround.com so that we can consider its editing or removal. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You hereby waive any legal or equitable right or remedy you may have against Bat Around with respect to User Content.

4. Optional Third-Party Services. Bat Around and third parties may make available integrations between the Service and third-party products or services (“Third-Party Services”) that you may elect to use. Any use by you of such Third-Party Services is solely between you and the applicable Third-Party Service provider. Because the Third-Party Services rely on the Third-Party Service provider’s continued operation, Bat Around does not warrant or provide support for Third-Party Services. Bat Around is not responsible for any violations of applicable law by Third-Party Service providers, or for any liability arising from your use of Third-Party Services. Bat Around does not guarantee the continued availability of any Third-Party Services (or any integration with Third-Party Services or related Service features), and if such Third-Party Services or related features are discontinued, you will not be entitled to any refund, credit, or other compensation.

5. Ownership.

A. Bat Around IP. The Service, including any content, modifications, and updates, and all intellectual property rights therein (collectively, “Bat Around IP”), is owned by Bat Around and its licensors. No ownership rights in the Bat Around IP are transferred to you by these Terms. You do not have any rights in or to the Bat Around IP except for the limited express rights granted in these Terms.

B. Trademarks. You acknowledge that Bat Around has acquired, and is the owner of, common law or registered trademark rights in the name and word mark “Batting Challenge,” "Bat Around," and in the other marks and design marks displayed on the Service. You acknowledge that these names and marks are famous and internationally known. You will not challenge the validity of, or Bat Around’s ownership of, the foregoing names or marks, and you waive any rights you may have to do so. You may not use our names or marks in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. All use of the foregoing names and marks by you will inure exclusively to Bat Around’s benefit.

C. Feedback. If you give Bat Around feedback, comments, or suggestions concerning the Service (collectively, “Feedback”), you hereby assign to Bat Around all right, title, and interest in and to the Feedback, and Bat Around is free to use the Feedback without payment, attribution, or restriction.

 

6. Confidentiality

In the course of providing the Service, Bat Around may disclose or make available to you information about its business. You acknowledge that all knowledge, information, and data provided by Bat Around to you with respect to the business, operations, and marketing of Bat Around’s products and services that is not generally known or publicly available, whether or not designated as “confidential,” is Bat Around’s confidential information and you will not use or disclose such confidential information to any third party without Bat Around’s prior written consent.

7. Data

Usage Data. Bat Around may collect and analyze data relating to your use of the Service that is aggregated and/or deidentified in such a way that it is not associated with you (“Usage Data”) and other information relating to the provision, use, and performance of various aspects of the Service and related systems and technologies (including information provided by third-party analytical tools). Bat Around may analyze, process, collect, and use Usage Data for any purpose, including for improving the Service and developing new products, services, features, and functionality.

 

8. Consent to Electronic Communications.

A. Administrative Communications. By using the Service, you agree that we may communicate with you electronically regarding registration, security, privacy, and administrative issues relating to your use of the Service.

B. Consent. You consent to receiving our email newsletter and other marketing-related emails from us. If you wish to remove yourself from our email list for such marketing-related emails, please use the unsubscribe link in any email received from us.

C. SMS Messaging. By creating an account, you agree that Bat Around may send you transactional and promotional text (SMS) messages in connection with your use of the Service. You may opt out of receiving text (SMS) messages through the Service at any time by responding “STOP” or emailing info@letsbataround.com. Opting out of receiving text (SMS) messages may impact and limit your use of the Service. Please be aware that your cellular carrier may charge fees in connection with your use of the Service. You are responsible for any mobile charges that you may incur in connection with using the Service, including data charges. If you are not sure what those charges may be, you should ask your carrier before using the Service. Bat Around is not responsible or liable for any fees, costs, or overage charges associated with any data charges or data plan.

 

9. Term and Termination.

A. Term. The term of these Terms will commence on the date on which you first access or use the Service and will continue until terminated.

B. Termination. If you breach (or if Bat Around suspects you have breached) these Terms, Bat Around may, in its sole discretion, terminate these Terms and your User account and/or limit, suspend, or terminate your access to the Apps or Service, with or without notice. You may terminate these Terms by contacting us at info@letsbataround.com.

C. Effect of Termination. Upon termination of these Terms, you remain obligated to pay any outstanding fees relating to your use of the Service that were incurred prior to termination. The following Sections of these Terms will survive termination of these Terms: 1.A, 2, 4 - 7, 9.C, and 10 -22. Either party’s termination of these Terms is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of liability for breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating these Terms.

D. Deactivation. Bat Around may, without notice to you: (1) restrict, deactivate, or terminate your access to the Service (or any portion); or (2) terminate or modify the Service (or any portion). Bat Around will not be liable to you or any third party for any termination of or modification to the Service regardless of the reason for such termination or modification. If you are dissatisfied with any termination or modification of the Service, your only remedy is to stop using the Service.

 

10. Representations and Warranties; Disclaimer.

A. User Content. You represent and warrant that: (1) you are the creator and owner of any User Content you provide or otherwise have sufficient rights and authority to grant the rights granted to Bat Around in these Terms; (2) Bat Around’s use of your User Content in accordance with these Terms will not infringe, violate, or misappropriate any third-party right, including any intellectual property right, proprietary right, or privacy right; (3) your User Content does not contain any viruses, adware, spyware, worms, or other harmful or malicious code; (4) unless you have received prior written authorization, your User Content does not contain any confidential information of any third party; and (5) that you will not access or use the Service to process or store any data that is sensitive (e.g. health information) or that is not in compliance with applicable law.

B. DISCLAIMER. BAT AROUND MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICE, THIRD-PARTY SERVICES, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BAT AROUND DOES NOT WARRANT THAT THE SERVICE, OR THIRD-PARTY SERVICES WILL SATISFY YOUR REQUIREMENTS, ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE SERVICES, OR THIRD-PARTY SERVICES WILL BE UNINTERRUPTED. Some jurisdictions may limit or prohibit warranty disclaimers, and this Section 10.B will apply solely to the extent permitted under applicable law.

 

11. Indemnification.

A. Defense. At Bat Around’s option and request, you will defend Bat Around, its affiliates, and their respective directors, officers, employees, agents, and contractors (the “Bat Around Parties”) from any actual or threatened third-party claim, proceeding, or suit arising out of or based on: (1) your breach of any representation, warranty, or covenant in these Terms; (2) your violation of applicable law or any third-party intellectual property, proprietary, or privacy right; (3) any dispute between you and any other User or any third party; or (4) your use of the Service in a manner not authorized under these Terms (each, a “Claim”). If Bat Around requests you to defend a Bat Around Party from any Claim, Bat Around will: (a) give you prompt written notice of the Claim; (b) grant you full and complete control over the defense and settlement of the Claim; (c) provide assistance in connection with the defense and settlement of the Claim as you may reasonably request; and (d) comply with any settlement or court order made in connection with the Claim. Notwithstanding the previous sentence, you may not enter into any settlement that involves an admission of guilt or liability of a Bat Around Party without Bat Around’s prior written consent. Bat Around may participate in the defense of a Claim at its own expense and with counsel of its own choosing.

B. Indemnification. You will indemnify the Bat Around Parties from and pay: (1) all damages, costs, and attorneys’ fees finally awarded against a Bat Around Party in any Claim; (2) all out-of-pocket costs (including attorneys’ fees) reasonably incurred by a Bat Around Party in connection with the defense of a Claim; and (3) all amounts that you agree to pay to any third party to settle any Claim.

 

12. Limitation of Liability.

A. EXCLUSION OF DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER BAT AROUND NOR ANY BAT AROUND PARTY WILL BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF THE SERVICE, INCLUDING LOST PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA, EVEN IF BAT AROUND IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. BAT AROUND SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY, OR LOSSES ARISING OUT OF YOUR RECEIPT OR PROVISION OF ANY THIRD-PARTY SERVICES.

B. DAMAGES CAP. BAT AROUND’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF THE SERVICE (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE GREATER OF: (1) THE AMOUNT OF FEES PAID BY YOU TO BAT AROUND DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION); OR (2) $100.

 

13. New Jersey Notice. IF YOU ARE A RESIDENT OF NEW JERSEY, SECTIONS 10.B (DISCLAIMER) AND 12 (LIMITATION OF LIABILITY) ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.

14. Release. If you have a dispute with one or more Users or Participating Locations, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees, and agents) from all claims, demands, and damages (actual and consequential) of every kind, known and unknown, arising out of or in any way connected with such disputes. You expressly waive any protections (whether statutory or otherwise) 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.

15. Arbitration

A. Generally. In the interest of resolving disputes between you and Bat Around in the most expedient and cost-effective manner, you and Bat Around agree that any dispute arising out of or related to these Terms or your use of the Service will be resolved by binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Terms or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the expiration or termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND BAT AROUND ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS OR COLLECTIVE ACTION. YOU FURTHER UNDERSTAND THAT THIS SECTION 5 WILL APPLY TO YOU AND BAT AROUND UNLESS YOU CHOOSE TO OPT OUT PURSUANT TO SECTION 15.J (OPT OUT).

Whether to agree to arbitration is an important decision. It is your decision to make, and you should not rely solely on the information provided in these Terms, as they are not intended to contain a complete explanation of the consequences of arbitration. You should take further steps to conduct research and to consult with others, including an attorney, regarding the consequences of your decision, just as you would when making any other important business or life decision.

B. Exceptions. Despite the provisions of Section 15.A (Generally), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (1) bring an individual action in small claims court; (2) bring an action in a court pursuant to the California Private Attorneys General Act of 2004, California Labor Code § 2698 et seq.; (3) seek injunctive relief in a court of law; or (4) file suit in a court of law to address an intellectual property infringement claim.

C. Arbitrator. Any arbitration between you and Bat Around will be governed by the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Bat Around. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

D. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party within the applicable statute of limitations period (“Notice”). Bat Around’s email address for Notice is info@letsbataround.com. The Notice must: (1) describe the nature and basis of the claim or dispute; (2) set forth the specific relief sought; and (3) if you are sending the Notice to Bat Around, include your name and address (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 45 days after the Notice is received, you or Bat Around may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Bat Around must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Bat Around will pay you the highest of the following: (a) the amount awarded by the arbitrator, if any; (b) the last written settlement amount offered by Bat Around in settlement of the dispute prior to the arbitrator’s award; or (c) $1,000.

E. Fees; Location; Language. If you commence arbitration in accordance with these Terms, Bat Around will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York, New York but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance-based telephone hearing; or (3) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Bat Around for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. The language of the arbitration shall be English, unless you do not speak English, in which case the arbitration shall be conducted in both English and your native language. 

F. Confidentiality. The parties agree to keep confidential the existence of the arbitration, the arbitral proceedings, the submissions made by the parties, and the decisions made by the arbitrator, including its awards, except as required by applicable law and to the extent not already in the public domain.

G. Class Actions. YOU AND BAT AROUND AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING (OTHER THAN ACTIONS UNDER THE CALIFORNIA PRIVATE ATTORNEYS GENERAL ACT OF 2004, CALIFORNIA LABOR CODE § 2698 ET SEQ., WHICH ARE NOT COVERED BY THIS SECTION 15 (ARBITRATION)). Unless both you and Bat Around agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.

H. Modifications to this Arbitration Provision. If Bat Around makes any future change to this arbitration provision, other than a change to Bat Around’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Bat Around’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Bat Around. If you do not send such written notice, your continued use of the Service following any such change means that you have consented to such change.

I. Enforceability. If Section 15.G (No Class Actions) is found to be unenforceable or if the entirety of this Section 15 (Arbitration) is found to be unenforceable, then the entirety of this Section 15 will be null and void and the exclusive jurisdiction and venue described in Section 19.B (Governing Law) will govern any action arising out of or related to these Terms or your use of the Service.

J. Opt Out. Arbitration is not a mandatory condition of these Terms. If you do not want to be subject to this Section 15 (Arbitration), you may opt out by notifying Bat Around in writing of your decision by sending, within 30 days after the effective date of these Terms, an email to info@letsbataround.com, stating clearly your full name, address, and intent to opt out of this Section15. Should you choose not to opt out within the 30-day period, you and Bat Around will be bound by the terms of this Section15. You have the right to consult with counsel of your choice concerning regarding your right to opt out of this Section 15, and you understand that you will not be subject to retaliation if you exercise your right to opt out.

16. Image Release. You provide Bat Around with your absolute and unconditional consent, waiver, and release of liability, allowing Bat Around to publicize and commercially exploit your name, likeness, and other personal characteristics and private information as set out below, including in connection with Bat Around's creation of audio, visual, and/or audiovisual works for its advertising, publicity, and promotion (the "Work").

A. To the fullest extent permitted by applicable law, you: (a) grant to Bat Around and its affiliates, successors, licensees, clients, agents, and assigns (including Bat Around, "Authorized Persons") the right, to (i) during your participation in the Activity, film, record, and photograph you (the "Recording"), (ii) digitize, modify, create derivative works, display, publicly perform, transmit, reproduce, sell, license, and otherwise use and exploit, and permit others to use and exploit the Recording and all materials created by or on behalf of Bat Around that incorporate any of the foregoing, including the Work ("Materials") (including, without limitation, your name, image, likeness, appearance, personality, voice, and other identifying features as they appear in the Recording) in perpetuity throughout the universe and in any medium or format whatsoever now existing or hereafter created (including, digital transmission on any platform) without further consent from or any royalty, payment, or other compensation to you; (b) waive all legal and equitable rights (including any right to injunctive relief) relating to all liabilities, claims, demands, actions, suits, damages, and expenses (including, claims for infringement of moral rights, defamation, invasion of any rights of privacy, violation of rights of publicity, physical or emotional injury or distress, or any similar claim or cause of action) in tort, contract, or any other legal theory, now known or hereafter known in any jurisdiction throughout the world (collectively, "Image Claims") arising directly or indirectly from an Authorized Persons' exercise of their rights under this Release or the production, exhibition, advertising, promotion, exploitation, or other use of the Materials, and whether resulting in whole or in part by the negligence of an Authorized Person or any other person; (c) covenant not to make or bring any such Image Claim against any Authorized Persons or their agents, employees, and representatives; and (d) forever release and discharge the Authorized Persons from all liability under such Image Claims.

B.  You have no right to review or approve the Work, the Recording, or the Materials. No Authorized Person has liability to you for any editing or alteration of the Work, the Recording, or the Materials, or for any distortion or other effects resulting from Bat Around's editing, alteration, or use of the Work, the Recording, or the Materials, or Bat Around's presentation of you. Bat Around may determine (in its sole discretion) any acknowledgment or credit of you in connection with the Work or the Materials.

17. Cooperation with Authorities. Bat Around may cooperate with legal authorities and/or third parties in the investigation of any suspected or alleged crime or civil wrong. Except as may be expressly limited by the Privacy Policy, Bat Around may disclose any information as Bat Around deems necessary to satisfy any applicable law, regulation, legal process, or governmental request, or to edit, refuse to post, or to remove any information or materials, in whole or in part, in Bat Around’s sole discretion.

 

18. Protected Activity Not Prohibited. Nothing in these Terms limit or prohibit you from filing a charge or complaint with, or otherwise communicating or cooperating with or participating in, any investigation or proceeding that may be conducted by any federal, state, or local government agency or commission (“Protected Activity”). In connection with such Protected Activity, you are permitted to disclose documents or other information as permitted by law, and without giving notice to, or receiving authorization from, Bat Around. In making any such disclosures or communications, you agree to take all reasonable precautions to prevent any unauthorized use or disclosure of any information that may constitute Bat Around confidential information to any parties other than the applicable government agencies.

19. Compliance with Applicable Law. Each party will comply with all applicable federal, state, provincial, and local laws, regulations, binding regulatory guidance, directives, and governmental requirements in connection with exercising its rights or performing its obligations under these Terms.

20. Miscellaneous

A. Subcontractors. Bat Around may use subcontractors or other third parties to perform its obligations under these Terms, but Bat Around will remain responsible for all such obligations.

B. Governing Law. These Terms are governed by New York law without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms. Subject to Section 15 (Arbitration), all claims arising under these Terms will be litigated exclusively in the federal or state courts of New York, New York. The parties submit to the jurisdiction of those courts. In any proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees.

C. Injunctive Relief. If you breach Sections 2 (Accounts; Registration; Restrictions), 5(Ownership), or 6 (Confidentiality), Bat Around may suffer irreparable harm, and monetary damages may be inadequate to compensate Bat Around. Accordingly, Bat Around may, in addition to any other remedies available, seek injunctive or other equitable relief in response to any such breach.

D. Further Assurances. You agree to execute and deliver any documents or instruments, and take any further actions that are reasonably required, to provide the other party the full benefits and rights described in these Terms.

E. Assignment. You may not assign these Terms or delegate your performance without Bat Around’s prior written consent, and any attempt to do so is void. Bat Around may assign or transfer these Terms without your consent. These Terms are binding upon and inure to the benefit of the parties’ permitted successors and assigns.

F. Severability. If any provision of these Terms or portion of a provision is invalid, illegal, or unenforceable, the rest of these Terms will remain in effect.

G. No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under these Terms.

H. Entire Agreement. These Terms constitute the entire agreement and supersede any other agreement of the parties relating to their subject matter. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, or supplement these Terms.

I. Nature of Rights. The licenses granted under these Terms are rights in “intellectual property” within the scope of Section 101 (or its successors) of the United States Bankruptcy Code (the “Code”). Each party as licensee will have and may fully exercise all rights available to a licensee under the Code, including under Section 365(n) or its successors.

J. Relationship. Neither Bat Around’s provision of the Apps to you, nor your access to and use of the Service, creates any direct business relationship between you and Bat Around. You acknowledge and agree that these Terms are not an employment agreement, nor does it create an employment or contractor relationship, between you and Bat Around; and no joint venture, partnership, or agency relationship exists between you and BAT AROUND. As a User, YOU ACT EXCLUSIVELY ON YOUR OWN BEHALF AND FOR YOUR OWN BENEFIT, AND NOT ON BEHALF OF OR FOR THE BENEFIT OF BAT AROUND. YOU AGREE NOT TO DO ANYTHING TO CREATE A FALSE IMPRESSION THAT YOU ARE ENDORSED BY, PARTNERING WITH, OR ACTING ON BEHALF OF OR FOR THE BENEFIT OF BAT AROUND, INCLUDING BY INAPPROPRIATELY USING ANY BAT AROUND IP.

K. No Third-Party Beneficiaries. There are no third-party beneficiaries of these Terms, except as described in Section 21 (Notice Regarding Apple).

L. Notices. All notices under these Terms must be in writing, and will be considered given: (1) upon delivery, if delivered personally or by internationally recognized courier service; (2) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (3) upon acknowledgement of receipt, if delivered by email. Either party may update its notice address by notice to the other party in accordance with this Section 20.L. All notices to Bat Around will be sent to:

Batting Challenge Holdings, Inc.

220 E. 67th Street #9G

New York, NY 10065

Email: info@letsbataround.com

Attn: Legal

M. Force Majeure. Bat Around will not be liable for any delay or failure to perform under these Terms as a result of any cause or condition beyond Bat Around’s reasonable control (a “Force Majeure Event”), so long as Bat Around uses reasonable efforts to avoid or remove those causes of delay or non-performance. If a Force Majeure Event causes Bat Around to delay or fail to perform its obligations under these Terms for 30 consecutive days, either party may terminate these Terms.

N. Interpretation. If Bat Around provides a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version will prevail. Any heading, caption, or section title contained in these Terms is for convenience only, and does not define or explain any provision. Any use of the term “including” or variations thereof should be construed as if followed by the phrase “without limitation.”

 

21. NOTICE FOR CALIFORNIA USERS. Under California Civil Code Section 1789.3, Users located in California are entitled to the following notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.

22. Notice Regarding Apple. This Section 22 only applies to the extent you are using the Apps on an iOS device. You acknowledge that these Terms are between you and Bat Around only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (A) product liability claims; (B) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (C) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (1) 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 (2) you are not listed on any U.S. Government list of prohibited or restricted parties.

23. Contact Us. If you have any questions about these Terms or otherwise need to contact us for any reason, you can reach us at info@letsbataround.com.

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