Organization Terms Of Service
These Organization Terms of Service (“Organization Terms”) describe and govern the relationship between the Organization (defined below) and WIN Reality. If you are a Coach, Athlete, Team Admin, Organization Admin, or Visitor, the user terms and conditions describe and govern your use of and access to the Platform. These Organization Terms (or, if applicable, Organization’s written agreement with WIN Reality) and any invoices together form a binding agreement (the “Agreement”) between Organization and WIN Reality. If any terms in Section 14 apply to Organization, those terms are also incorporated here by reference and are part of the Agreement.When WIN Reality updates the Platform or the way the Platform works, it may also update the Organization Terms and your Agreement. If that happens, WIN Reality will post an updated version of the Organization Terms and notify Organization via the Organization Admin’s e-mail address on file; the update will be effective as of the date that WIN Reality identifies in the email. For purposes of clarity, when referring to one party herein, it shall be a “Party,” and when referring to both parties herein, they shall be referred to collectively as the “Parties.”
- Definitions. An “Athlete” is any individual who has been given access to an account with the ‘athlete’ feature set activated. A “Coach” is any individual who has been given access to an Organization account. An “Organization” is the organization that you represent when establishing a WIN account. If you set up an account (a) for an educational institution or (b) using a corporate email address, then the Organization is the applicable educational institution or corporate organization. If you sign up on behalf of an educational institution using a different corporate email address, then the Organization is the educational institution. Either way, the Organization can change your role on the account and otherwise modify the Organization’s accounts. An Organization must designate at least one individual as the administrator for its account (an “Organizational Admin”). An Organization may designate additional Organizational Admins, each of which shall have authority described in this paragraph. The Organizational Admin has authority to make changes to the Organization’s account, to remove or add other users from the Organization’s account (including other Organizational Admins) and to take any other actions and obtain any other information related to the Organization. The Organization is responsible for the actions of its Organizational Admins and to update the Organizational Admins associated with its account. An “Authorized User” is any Organizational Admin, Coach, or Athlete that has been granted access to an account associated with your Organization. A “Subscription” is an annual license that permits access the Platform and any particular Services described in the Invoice. “Hardware” means the physical equipment and components used in the Solution. “Platform” means the related WIN software. “Solution” means the Hardware and the related platform, including all related Hardware and Platform.
- Description of Services. If Organization use WIN Series Player Development, the WIN Series Player Development also apply to such use. If Organization use WIN Series Game Preparation, the WIN Series Game Preparation also apply to such use.
- Payment. When an Organization first signs into the Platform, WIN posts an invoice for the Subscription in the Admin account via the Platform. When an Organization adds new Users to its account or new Services to its account, WIN posts the new invoice to the Admins accounts via the Platform. Upon renewal, WIN makes an invoice available for the renewal Subscription term in the Admin’s account via the platform 45 days before the last day of the then-current Subscription. Organization must pay WIN the amount identified as due on the invoice (“Fees”) on or before the due date on the invoice, or WIN may deactivate or limit the applicable Subscription. All Subscriptions are invoiced in advance and are not refundable or cancelable (unless stated otherwise on the invoice or the written agreement, if applicable). Organization is responsible for all Fees related to the use of the Platform by its Coaches and Organization Admins. WIN may change the Fees at any time without notice to Organization, and such Fees shall be effective upon the next renewal. If Organization’s Coaches, Organization Admins or Team Admins provide WIN with a credit card, Organization hereby authorizes WIN to charge the credit card for the Subscription for the Fees. WIN will bill the credit card on file for the relevant Subscription renewal unless Organization cancels its Subscription or otherwise pays the Fees before the due date.
- Licenses. Subject to these Organization Terms, WIN grants to Organization the non-exclusive, non-transferable, revocable right during the Term (as defined below) to access and use the Platform for internal use by Authorized Users. Organization may grant its Authorized Users the rights. As a condition of the grant in this section, Organization may not modify, transfer, or otherwise sublicense or distribute the Platform to any third party, and Organization may not disassemble, decompile or reverse engineer any aspect of the Platform. WIN may immediately terminate the foregoing license upon any breach (including any attempted and/or threatened breach) of this Section 4. Subject to these Organization Terms, Organization grants the following license rights to WIN (and its licensees, sublicensees, distributors and subdistributors): (i)Video: the non-exclusive, royalty-free right, to all Intellectual Property Rights of Organization in the Video, to use Organization’s Video for the purpose of (a) enabling Authorized Users to use the Platform during the Term, (b) if Organization authorizes through the Platform, the release, (which includes the right to sublicense, license, distribute or subdistribute) of the Video, in whole or in part, to third parties, including but not limited to WIN’s distributors, independent contractors and agents, to (1) use such released Video to provide the Platform community features to users and to other third parties during the Term, and (2) to reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon (including inserting advertising therein), perform and otherwise use such released Video, in whole or in part, in perpetuity in all media formats and channels now known or hereafter devised (including on WIN’s websites, third party websites, cable networks and stations, broadband and wireless platforms, products and services) for any and all purposes, including entertainment, news, advertising, promotional, marketing, publicity, trade or commercial purposes, all without further notice to, or permission from Organization, with or without attribution and without any royalty or payment obligations, which rights in this subsection (c) shall survive any termination or expiration of these Organization Terms. (ii) Coaching Data: the non-exclusive, royalty-free right, to all Intellectual Property Rights of Organization and its Authorized Users in the Data, to use Organization’s Coaching Data for the purpose of enabling Authorized Users and other third parties to use the Platform during the Term. (iii) Vital Information: the non-exclusive, royalty-free and perpetual right to all Intellectual Property Rights of Organization and its Authorized Users in the Vital Information to use the Vital Information in connection with the Platform and otherwise. (iv) Statistical Data: the non-exclusive, royalty-free and perpetual right, to all Intellectual Property Rights of Organization to use the Statistical Data in any manner. (v) Hosting: Without limiting the above, WIN may sublicense the rights in this Section 4 during the Term as necessary to enable any third party hosting of the Platform.
- Intellectual Property. Organization agrees that, as between the Parties, the Platform is owned by and belongs to WIN. WIN shall, at all times, own and retain full rights to the Platform, WIN’s Proprietary Material, and all inventions, data, discoveries, developments, discovery methods, updates, improvements, process, know-how, techniques, codes, research and materials related to the Solution, the Hardware, and the Platform (collectively, the “WIN Assets”). Organization shall not use the WIN Assets in any manner other than as expressly allowed by this Agreement or as apparently authorized by the Solution, the Hardware, or the Platform. Without limiting the foregoing, Organization shall not (1) copy, frame, mirror, or otherwise make available to any unauthorized third party any part or content of the WIN Assets; (2) reverse engineer or attempt to reverse engineer the WIN Assets; or (3) copy any features, functions, or graphics of the WIN Assets. Nothing in this Agreement shall be construed to convey any interest in the WIN Assets to Organization other than as expressly set forth herein. Any breach by Organization of the terms set forth in this Section shall provide WIN with the right to seek all remedies available to Organization at law or in equity including, without limitation, injunctive relief.
- Term and Termination. These Organization Terms shall commence upon the activation of an Organization’s Subscription and will continue for the initial period specified in Organization’s invoice; if no such initial period is designated, for a period of one year (such applicable period, the “Initial Term”). Following the Initial Term, these Organization Terms will automatically renew for additional one-year renewal terms upon payment by Organization (each a “Renewal Term” and together with the “Initial Term”, the “Term”), unless otherwise terminated as provided below. Organization may cancel its Subscriptions for one or more Athletes at any time prior to the then-current Initial Term or Renewal Term, as applicable. WIN may terminate these Organization Terms if Organization materially breaches these Organization Terms and fails to cure such breach within five (5) business days after written notice thereof. Upon termination, Organization shall have no further rights hereunder and shall promptly remove any installed Software. Upon termination, WIN has the right to collect the Organization’s Hardware.
- Indemnity. WIN shall defend or settle any action brought against Organization to the extent that it is based upon a third party claim that the Platform, as provided by WIN to Organization under these Organization Terms and used within the scope of these Organization Terms, infringes any U.S. patent or any copyright or misappropriates any trade secret with regard to any third party (a “Claim”), and will pay any costs, damages and reasonable attorneys’ fees attributable to such Claim that are awarded against Organization, provided that Organization (i) promptly notifies WIN in writing of the Claim; (ii) grants WIN sole control of the defense and settlement of the claim; and (iii) provides WIN, at WIN’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the Claim. Notwithstanding the foregoing, any and all of WIN’s obligations under this Section 10 shall be limited to an amount equal to the subscription fees paid to WIN under these Organization Terms. If Organization’s use of the Platform hereunder is, or in WIN’s opinion is likely to be, enjoined due to a Claim, WIN may, at its sole option and expense, (i) use commercially reasonable efforts to procure for Organization the right to continue using the Platform under the terms of these Organization Terms; or (ii) use commercially reasonable efforts to replace or modify the Platform so that it is non-infringing and substantially equivalent in function to the enjoined aspects of the Platform; or (iii) terminate Organization’s rights and WIN’s obligations hereunder with respect to the enjoined features of the Platform and refund to Organization a prorated portion of the Fees paid for such features for the then-current annual term. Notwithstanding anything herein to the contrary, WIN will have no liability for any infringement or misappropriation claim of any kind to the extent that related to: (i) modifications to the Platform made by a party other than WIN; (ii) the combination, operation or use of the Platform or any other material licensed to Organization hereunder with equipment, devices, software or data not supplied by WIN; or (iii) Organization’s failure to use an enhancement, upgrade, or update provided by WIN; (iv) Organization’s breach of these Organization Terms; or (v) due to any action or inaction of Organization. THE INDEMNIFICATION AND REFUND PROVISIONS OF SECTION 7, SUBJECT TO THE EXCLUSIONS THEREOF, SET FORTH WIN’S SOLE AND EXCLUSIVE OBLIGATIONS, AND ORGANIZATION’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND. Organization shall indemnify and hold WIN, its affiliates, and their respective directors, officers, and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Organization’s breach of these Organization Terms, including any representations and warranties set forth above. This Section 7 shall survive any termination or expiration of these Organization Terms.
- Warranties; Disclaimers; Limitations of Liability. In addition to all other warranties set forth in this Agreement, WIN warrants (i) that it owns or has the right to license the WIN Assets, (ii) that the Solution, the Hardware, and the Platform will, at the time of installation, be of reasonable commercial quality, and (iii) that all services performed by WIN hereunder will be consistent with industry standards and conducted in a workmanlike and professional manner. Organization shall be solely responsible for any damage caused to the Solution during the time that the Solution is in Organization’s possession or custody. Organization acknowledges that the Solution includes large equipment and that its use includes physical activity, such as pitching or swinging a bat. Organization shall be solely responsible for any injuries to Organization Athletes or Organization Administrators resulting from the use of the Solution during the time that the Solution is in Organization’s possession or custody.
- Promotion. WIN may publicize and market Organization as a customer. Subject to WIN’s confidentiality obligations hereunder, WIN may display on WIN’s website and in any and all promotional materials (irrespective of the means of exploitation) a case study or other customer usage scenario referencing or featuring Organization. WIN may prepare and utilize testimonials of a reasonable number of Authorized Users, subject to Organization’s prior consent (to the extent Organization is entitled to grant such consent). Organization hereby grants to WIN, and represents to WIN that it may grant, a non-exclusive, non-transferable, royalty-free license for WIN to make use of Organization’s name or logo during the Term on WIN’s website and in any and all promotional materials (irrespective of the means of exploitation). All such use shall inure to the benefit of Organization, and WIN shall have no implied right to any other intellectual property of Organization except as set forth in these Organization Terms. WIN shall use its best efforts to comply with any use guidelines that Organization provides to WIN in writing; provided, that an inadvertent failure to comply shall not be a breach of these Organization Terms.
- Miscellaneous: If for any reason a court of competent jurisdiction finds any provision of these Organization Terms invalid or unenforceable, that provision of these Organization Terms will be enforced to the maximum extent permissible and the other provisions of these Organization Terms will remain in full force and effect. The parties’ relationship is that of independent contractors. WIN may assign these Organization Terms or any of its rights or obligations hereunder (in whole or in part) without Organization’s consent. Organization may not assign these Organization Terms without the prior written consent of WIN. If for any reason a court of competent jurisdiction finds any provision of these Organization Terms invalid or unenforceable, that provision of these Organization Terms will be enforced to the maximum extent permissible and the other provisions of these Organization Terms will remain in full force and effect. The parties’ relationship is that of independent contractors. WIN may assign these Organization Terms or any of its rights or obligations hereunder (in whole or in part) without Organization’s consent. Organization may not assign these Organization Terms without the prior written consent of WIN. These Organization Terms is governed by the laws of the State of Delaware, except for its conflict of laws provisions. Venue for all disputes arising under these Organization Terms shall lie exclusively in the District Courts of the State of Delaware in New Country County or the Federal District Court of the District of Delaware (as permitted by law) and each party agrees not to contest the personal jurisdiction of these courts; provided, however, that WIN shall have the right to commence and prosecute any legal or equitable action or proceeding before any other U.S. court of competent jurisdiction to obtain injunctive or other relief.