• WIN Shortbat back in-stock • Special offer • 30% off when subscribed to pro annual • 
  • WIN Shortbat back in-stock • Special offer • 30% off when subscribed to pro annual • 
  • WIN Shortbat back in-stock • Special offer • 30% off when subscribed to pro annual • 
  • WIN Shortbat back in-stock • Special offer • 30% off when subscribed to pro annual • 
  • WIN Shortbat back in-stock • Special offer • 30% off when subscribed to pro annual • 

Terms of Service

SUBSCRIPTION AGREEMENT (“Agreement”)

Amended March 3, 2024

IMPORTANT – ALL USE OF THE HARDWARE, SOFTWARE, PERFORMANCE DATA AND SERVICES PROVIDED UNDER THIS AGREEMENT IS GOVERNED BY, AND SUBJECT TO, THE TERMS AND CONDITIONS OF THIS AGREEMENT.  BY INDICATING YOU AGREE TO THESE TERMS, OR BY INSTALLING AND/OR USING THE HARDWARE OR SOFTWARE (INCLUDING CONTINUED USE FOLLOWING AN UPDATE OR AN UPGRADE), YOU, OR THE COMPANY YOU REPRESENT (“CUSTOMER”) ARE AGREEING TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND CONSENT TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT.  IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CUSTOMER SHOULD NOT INDICATE IT AGREES TO THESE TERMS AND CUSTOMER WILL NOT HAVE ANY LICENSE TO, OR RIGHT TO USE, ANY PART OF THE SOFTWARE OR TECHNOLOGY.  WIN REALITY INC.’S (“WIN”) ACCEPTANCE IS EXPRESSLY CONDITIONED UPON CUSTOMER’S ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER BY WIN, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.  THIS IS A LEGAL AGREEMENT BETWEEN CUSTOMER AND WIN AND YOU SHOULD PRINT AND KEEP A COPY OF IT.

1. DEFINITIONS.

1.1. “Authorized Users” means those users who are given access to the System by Customer and are entitled to use the System in accordance with this Agreement and all applicable documentation.

1.2. “Confidential Information” means:  (a) the Software, Technology and Performance Data; and (b) any business or technical information of WIN or Customer, including but not limited to any information relating to WIN’s or Customer’s product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by the disclosing party as “confidential” or “proprietary” and, if orally disclosed, reduced to writing by the disclosing party within thirty (30) days of such disclosure.

1.3. “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, trademark rights, trade secret rights, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.

1.4. “Performance Data” means data, video, images and other materials included in or created by the System or provided by WIN for use in the System.

1.5. “Quotation” or “Quote” means the quote generated by WIN in response to Customer’s indication of interest in the System and associated maintenance and support services.  Quotes may be generated in the form of the checkout page of WIN’s or its reseller’s e-commerce website on which the System is acquired or may be prepared individually for a particular Customer.  The Quotation will contain particulars with respect to the Hardware, Software, services, term, price, shipping fees, taxes and other details.  All Quotations are subject to and governed by the terms and conditions of this Agreement unless otherwise specifically agreed in writing by the parties.

1.6. “Software” means WIN’s proprietary software products (whether downloadable or non-downloadable (i.e. cloud-based or firmware or such) software) in object code form only, and related documentation, identified in the applicable Quotation and licensed for use by Customer pursuant to this Agreement, including any error corrections and updates thereto provided by WIN to Customer under this Agreement.

1.7. “System” means the combination of Hardware, Software, Performance Data, services and support used by Customer during the Subscription.

2. SUBSCRIPTION.

2.1. Description.  WIN offers, on a subscription basis, a suite of hardware, software and support services to its customers (the “Subscription”).  Customer selects the parameters of its System and Subscription online and is presented its final choices in the Quote, at which time Customer is given the opportunity to accept this Agreement.

2.2. Hardware.  The System contains hardware (“Hardware”), the design, functionality, features, trade secrets, Confidential Information and proprietary rights (the “Technology”) of which are proprietary to WIN and its suppliers and are protected by the laws of the United States and international treaties.  Notwithstanding transfer of title and risk of loss to the Hardware, if any, the Technology is licensed to Customer and not sold and WIN and its suppliers retain all right, title and interest in and to the Technology and all accompanying Intellectual Property Rights.  Customer is granted no interest in, other than a license to use, the Technology and use of the Hardware is subject to the terms and conditions of this Agreement.  Customer agrees that it will not, and will not allow others to, reverse engineer, disassemble or otherwise attempt to discover the Technology, except to the extent expressly permitted by applicable law.  Customer is granted no rights to make a derivative work, improvement, or other modification to the Hardware.  If the Hardware is acquired from WIN, Hardware will be shipped from the applicable WIN facility Ex Works (Incoterms 2010).  Hardware may be included in the Subscription, in which case title will not transfer to Customer and WIN will retain a security interest in such Hardware.  Notwithstanding anything to the contrary in this Agreement or otherwise, title to Hardware will not pass to Customer unless and until WIN has received all amounts payable for the Initial Term of the Subscription.

2.3. Software.  Subject to all the terms and conditions of this Agreement, WIN hereby grants Customer a limited, personal, non-sublicensable, non-transferable, non-exclusive license to use the Software included with or used by the System only for, and to the extent necessary for, Customer’s and its Authorized Users’ personal, internal use of the System and only in accordance with any documentation that accompanies it. Customer is also granted a limited, personal, non-sublicensable, non-transferable, non-exclusive license to use the Performance Data to the extent necessary to make use of the System.  Except as expressly and unambiguously permitted by this Agreement, Customer shall not, nor permit anyone else to, directly or indirectly: (i) copy (except for a reasonable number of backup copies), modify, or distribute the Software; or (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Software (except where the foregoing is required by applicable local law, and then only to the extent so permitted). Customer shall maintain and not remove or obscure any copyright or other proprietary notices on the Software.  As between the parties, title, ownership rights, and intellectual property rights in and to the Software, and any copies or portions thereof, shall remain in WIN and its suppliers. Customer understands that WIN may modify or discontinue offering the System, or any component thereof, at any time. The Software is protected by the copyright laws of the United States and international copyright treaties. This Agreement does not give Customer any rights not expressly granted herein.

2.4. Usage Limitations.  Customer’s use of the System, and any component thereof, may be subject to usage limitations and other restrictions as described in the applicable Quotation (e.g., number of users, accounts, etc.)  Exceeding such usage limitations or restrictions may result in additional charges for which WIN will invoice Customer in accordance with this Agreement.  Failure to pay such additional charges may result in termination of Customer’s Subscription.

2.5. Maintenance and Support Services.  As part of the Subscription, WIN will maintain and support the System in accordance with WIN’s standard maintenance and support procedures, incorporated into this Agreement by reference.  Customer is responsible for obtaining, at its own expense, support for the Hardware.

2.6. Virtual Items.  Customer may have the ability to purchase digital content, virtual items and/or in-app currency (“In-App Purchases”) through the Subscription.  Except as specifically described in this Agreement, WIN has no responsibility for any transactions Customer enters into with a third party for third party content or In-App Purchases and assumes no liability for third party content or Third Party In-App Purchases that occur within third party content.  In-App Purchases are payments for a limited, non-assignable license to access and use the applicable content or functionality in the Subscription. Virtual items or in-game currency purchased or available to Customer in the Subscription can only be used in connection with the Subscription. These items are not redeemable or subject to refund and cannot be traded outside of the Subscription for money or other items for value. WIN may modify or discontinue virtual items or in-game currency at any time.

2.7. Third Parties. From time to time, WIN may introduce third parties to Customer, including without limitation during promotions, give aways, cross service activities, etc. WIN makes no warranty or guarantee with respect to the services provided by such third parties and has no responsibility for any transaction Customer enters into with such third party.

3. CUSTOMER OBLIGATIONS.

3.1. Safety.  Customer is solely responsible for the safety of Authorized Users during their use of the System and for the safety of those in the proximity of an Authorized User using the System.  Certain modes of the System involve the use of a bat which could cause serious injury or death to bystanders, especially given that the Authorized User may be unaware of the presence of a bystander.  Customer will read and follow all safety guidelines provided by the Manufacturer of the Hardware used in the System, and will constantly monitor and supervise all use of the System to ensure the Authorized User and bystanders are safe and secure.

3.2. Certification.  At WIN’s written request and not more frequently than annually, Customer shall furnish WIN with a signed certification verifying that the System is being used in compliance with the terms and conditions of this Agreement, including without limitation any applicable usage limitations.  WIN shall have the right to periodically audit Customer’s usage of the System, either physically or via remote access, and Customer shall provide reasonable assistance during any such audit.

3.3. Cooperation and Data.  Customer acknowledges that in order to properly perform its obligations under this Agreement, WIN may require access to Customer’s premises, property, equipment, network, and other information, data and/or documentation (“Data”) that WIN reasonably requests from Customer.  If Customer fails in the timely provision of Data, or fails to provide other access or cooperation, and such failures require additions, corrections or modifications related to WIN’s performance, Customer will reimburse WIN for resulting costs.

3.4. Data Privacy.  Customer’s and its Authorized Users’ use of the System may result in the collection and storage of personal information, including but not limited to video and images uploaded by Customer, Authorized Users and others.  Customer is solely responsible for compliance with all laws and regulations related to the collection, use, storage, processing and disclosure of such personal information, including without limitation HIPAA, COPA, GDPR and CCPA.  Customer hereby acknowledges and agrees that it will obtain all permissions and releases necessary to permit Customer to upload, use and share any still or video images obtained by Customer. WIN’s data collection, storage and use policies are set forth in its Privacy Policy. WIN products and services may provide age appropriate groupings in which users can participate with other users of the same or similar age. Such users must obtain Customer’s permission to provide the information (full name, birthdate) necessary to join such a group, and Customer will always be able to remove a user from any such group and contact WIN to have the applicable information deleted. If requested, WIN will provide assistance to Customer to have such information removed. WIN will use information solely to enable users to participate in age-related training and activities and will remove such information when it is no longer needed. 

4. OWNERSHIP.

WIN and its suppliers presently own and will continue to own all worldwide right, title, and interest in and to the Software, Technology and Performance Data, including without limitation all modifications, revisions and derivative works thereto, by whomever made, and all worldwide Intellectual Property Rights therein.  Customer will not delete nor in any manner alter the copyright, trademark, and other proprietary rights notices of WIN or its suppliers appearing on the Software or Technology as delivered to Customer.

5. PAYMENT.

5.1. Subscription Fees.  Customer will pay to WIN the subscription fees and other charges set forth in the Quotation in accordance with the payment schedule set forth therein.  If the Quotation does not include a payment schedule, then payment of subscription fees is due annually, in advance without invoice.  Customer hereby authorizes WIN to charge Subscription Fees and other charges due under this Agreement to the credit card provided to WIN during the checkout process.  WIN shall have the right to revise the subscription fees at the end of the applicable Subscription term.  In such event, WIN shall notify Customer if, and by what amount, it intends to change the subscription fees, and Customer shall have the right, following such notice, to either continue its Subscription under this Agreement and pay the revised subscription fees or notify WIN, in writing no later than thirty (30) days following the date of WIN’s notice, of Customer’s intention to terminate its subscription at the end of the current period.  No change in subscription fees shall affect Customer’s current subscription for which Customer has already paid subscription fees.  Subscription fees are non-cancelable and non-refundable.

5.2. Maintenance and Support Fees. Maintenance and support services fees for the Software are included in the applicable Subscription Fees.  Support fees for Hardware may be included in the Subscription Fees if included in the applicable Quote.  Alternatively, Customer maybe responsible for obtaining support for the Hardware at its own expense.

5.3. Multi-Year Licenses.  Customer acknowledges that multi-year licenses have been negotiated on the basis of preferential pricing for a multiple year commitment, including discounted upfront pricing for Hardware.  If a multi-year license is terminated early for any reason other than WIN’s uncured breach, all unpaid license fees for the remaining years of the license term shall immediately become due and payable.

5.4. Payment Terms and Taxes.  Customer will pay all amounts due under this Agreement in United States dollars and no later than ten (10) days from the due date.  All past due amounts will incur interest at a rate equal to the lower of 1.5% per month or the highest rate permitted by law, beginning as of ten (10) days after the applicable due date.  Customer will be responsible for, and will promptly pay, all applicable taxes of any kind (including but not limited to sales and use taxes) associated with this Agreement or Customer’s receipt or use of the System or the performance of services hereunder, except for example, taxes based on WIN’s net income.  Termination or expiration of this Agreement, or any statement of work, shall not relieve Customer of any payment obligation incurred prior to such termination or expiration.

6. WARRANTY.

6.1. Limited Software Warranty.  WIN warrants that, for a period of ninety (90) days after delivery of the applicable Software, the Software will function substantially in accordance with WIN’s published documentation.  Customer must notify WIN of any breach of the foregoing warranty no later than thirty (30) days following completion of the 90-day warranty period.  As Customer’s sole and exclusive remedy and WIN’s entire liability for any breach of the foregoing warranty, WIN will, at its sole option and expense, promptly repair or replace any Software that fails to meet this limited warranty.

6.2. Hardware Warranty

(a)  WIN warrants during the period in which Customer’s Subscription is active (the “Warranty Period”) that all WIN-manufactured hardware will function substantially in accordance with its published specifications and will be free from material defects.  WIN will repair or replace any WIN-manufactured hardware returned to WIN during the Warranty Period in accordance with WIN’s return policies and procedures.

(b)  For Hardware manufactured by a third party WIN hereby disclaims all warranties, express or implied, related to all Hardware provided as part of the System.  WIN will use commercially reasonable efforts to pass through to Customer all applicable Hardware warranties.  It is Customer’s responsibility to address any Hardware warranty issues directly with the manufacturer.

6.3. Third Party Components.  WIN may provide Performance Data, audio and visual materials to Customer as part of the Subscription.  WIN makes no warranties with respect to such third party components.

6.4. Disclaimer of Warranties.  THE LIMITED WARRANTIES SET FORTH IN THIS SECTION  ARE IN LIEU OF, AND WIN HEREBY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THOSE OF ACCURACY, MERCHANTABILITY/SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.  WIN DOES NOT WARRANT OR GUARANTEE THAT THE SYSTEM, OR ANY COMPONENT THEREOF, WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR THAT THE SOFTWARE, WORK PRODUCT OR ANY SERVICES WILL MEET CUSTOMER’S NEEDS.  FURTHER, WIN MAKES NO WARRANTY, EXPRESS OR IMPLIED, AND ACCEPTS NO LIABILITY FOR ANY FAILURE OR FAULT, OR ANY RESULTING HARM OR DAMAGE, RESULTING FROM CUSTOMER’S FAILURE TO PROPERLY IMPLEMENT OR OPERATE THE SYSTEM, INCLUDING WITHOUT LIMITATION FAILURE OF CUSTOMER’S HARDWARE, SOFTWARE OR NETWORK ON WHICH THE SYSTEM OPERATES OR TO WHICH IT CONNECTS OR FAULTS OR FAILURES OF THIRD PARTY HARDWARE, SOFTWARE OR OTHER COMPONENTS NOR RESULTING FROM CUSTOMER’S FAILURE TO IMPLEMENT ADVICE PROVIDED BY WIN AS PART OF ITS SUPPORT AND MAINTENANCE SERVICES.

6.5. Customer Warranties.  Customer here by represents and warrants that it is responsible for all use of the System by Customer and Authorized Users.  Customer will ensure all Authorized Users have received proper training in use of the System and that appropriate warnings and safety precautions are used and provided to Authorized Users, particularly with respect to the physical bat provided as part of the System.  The System includes virtual reality equipment which may cause Authorized Users to become disoriented, and may also inhibit Authorized Users knowledge and understanding of their surroundings.  Customer will ensure the environment where the System is used is free from obstruction and that Authorized Users and any spectators are supervised at all times.  Customer accepts all liability for its and its Authorized Users use of the System and any harm, damage or liability that arises as a result.  Customer is solely responsible for ensuring that all applicable laws and regulations are complied with in the acquisition and use of any audio, video or images by Customer or from any third party.  Unless the Hardware is purchased by Customer, Customer is responsible for damage to the Hardware, reasonable wear and tear excepted, and will compensate WIN for any such damage.  WIN hereby disclaims, and Customer shall indemnify, defend and hold WIN harmless, from any claims, losses, liability or actions from Authorized Users or others resulting from Customer’s or any third party’s use of the System or as a result of Customer’s breach of the foregoing warranties.

7. CONFIDENTIALITY.

7.1. Use and Disclosure Restrictions.  During the term of this Agreement, and for a period of five (5) years after any termination of this Agreement, each party will use the other party’s Confidential Information only as permitted herein, and will not disclose such Confidential Information to any third party except to employees and consultants as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein executed in writing by such employees and consultants).  However, each party may disclose Confidential Information of the other party:  (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the disclosing party gives reasonable notice to the other party to contest such order or requirement; and (b) on a confidential basis to legal or financial advisors.

7.2. Exclusions.  The use and disclosure restrictions set forth above shall not apply to information that:  (a) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (b) is known to the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure; or (e) is disclosed with the prior written approval of the disclosing party.

8. LIMITATION OF LIABILITY.

8.1. Total liability.  WIN’S CUMULATIVE LIABILITY TO CUSTOMER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED A SUM EQUAL TO 125% OF THE AMOUNTS PAID TO WIN BY CUSTOMER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE CLAIM FOR THE HARDWARE, SOFTWARE OR SERVICES THAT ARE THE SUBJECT OF THE CAUSE OF ACTION OR CLAIM.

8.2. EXCLUSION OF DAMAGES. NEITHER PARTY SHALL IN ANY CIRCUMSTANCES HAVE ANY LIABILITY FOR ANY LOSSES OR DAMAGES WHICH MAY BE SUFFERED BY THE OTHER (OR ANY PERSON CLAIMING UNDER OR THROUGH THE SAME), WHETHER THE SAME ARE SUFFERED DIRECTLY OR INDIRECTLY OR ARE IMMEDIATE OR CONSEQUENTIAL, WHICH FALL WITHIN ANY OF THE FOLLOWING CATEGORIES: SPECIAL DAMAGE; LOSS OF PROFITS; LOSS OF DATA; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS OPPORTUNITY AND MANAGEMENT TIME; LOSS OF GOODWILL; OR COST OF PROCUREMENT OF ALTERNATIVE PRODUCTS OR SERVICES AND WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE AND WHETHER OR NOT WIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

8.3. Exclusions.  The limitations of liability and exclusion of damages set forth in this Section shall not apply to (i) breach of Sections 2 or 7, (ii) for fraud or fraudulent misrepresentation, (iii) a party’s indemnification obligations hereunder, or (iv) amounts payable hereunder.

8.4. Basis of Bargain.  The parties expressly acknowledge and agree that WIN has set its prices and entered into this Agreement in reliance upon the limitations of liability specified herein, which allocate the risk between WIN and Customer.

9. TERM AND TERMINATION.

9.1. Term.  This Agreement will begin on the date Customer accepts this Agreement and will remain in effect thereafter unless terminated earlier in accordance with the terms of this Agreement.  Subscription licenses begin on the date set forth in the applicable Quotation and remain in effect for an initial term of one (1) year, or such other term as specified in the Quotation (“Initial Term”), unless terminated earlier in accordance with the terms of this Agreement.  Following the Initial Term, subscription licenses automatically renew for additional one year terms at WIN’s then-current annual license fee (which will be automatically charged to the credit card provided by Customer), or such other renewal terms as specified in the Quotation (each a “Renewal Term” and the Initial Term and each Renewal Term collectively the “Term”) unless and until either party notifies the other, no later than sixty (60) days prior to the end of the then-current term, that it does not wish to renew the subscription.  WIN may employ electronic means to terminate Customer’s access to the System following termination of the subscription.  Early termination by Customer of the Subscription shall not release Customer from its obligation to pay for the Subscription for the entire Term, and Customer hereby gives WIN the authorization to continue to bill any credit card or other payment mechanism for the remainder of the Term.

9.2. Maintenance and Support Services.  Unless otherwise stated in the applicable Quotation, maintenance and support services are included in the subscription and commence and terminate on the same dates as the Subscription except that WIN reserves the right to suspend and/or terminate maintenance and support services if Customer fails to implement advice received from WIN as part of the maintenance and support services.

9.3. Termination.  Each party will have the right to terminate this Agreement or any license granted hereunder if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof.

9.4. Automatic Termination.  This Agreement will terminate automatically if Customer: (a) becomes the subject of any voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (b) becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.

9.5. Effect of Termination.  Upon any termination of this Agreement or of any individual license granted hereunder, Customer will: (i) promptly pay all outstanding amounts owing to WIN (including all amounts due for the remainder of the Term if termination was not in accordance with Sections 9.3 or 9.4); and (ii) immediately cease all use of the applicable System or System components and will promptly return to WIN all WIN Confidential Information then in Customer’s possession, and all copies and portions thereof, in all forms and types of media, and provide WIN with an officer’s written certification, certifying to Customer’s compliance with the foregoing.  If the Subscription is terminated prior to completion of the Initial Term of the Subscription and/or WIN has not received all amounts due and payable during such Initial Term, then Customer shall return all Hardware upon any such termination.  WIN shall have the right to repossess all applicable Hardware in accordance with applicable law.

9.6. Nonexclusive Remedy.  Termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party.

9.7. Survival.  All terms and conditions of this Agreement which, by their terms or their nature, should survive termination or expiration of this Agreement shall so survive.

10. GENERAL.

10.1. Assignment.  Customer will have no right to assign this Agreement, in whole or in part, by operation of law or otherwise, without WIN’s prior written consent.  Any attempt to assign this Agreement without such consent will be null and void.

10.2. Governing Law and Jurisdiction.  This Agreement shall be governed by and construed under the laws of the State of Texas and the United States without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods.  The sole jurisdiction and venue for actions related to the subject matter hereof shall be the state and U.S. federal courts located in Travis County, Texas.  Both parties consent to the jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by Texas state or U.S. federal law.  In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.

10.3. Government Customers.  If Customer is an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software or any related documentation of any kind, including technical data or related manuals, is restricted in accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies.  The Software is commercial computer software and the related documentation is commercial computer software documentation.  The use of the Software and related documentation is further restricted in accordance with the terms of this Agreement, or any modification hereto.

10.4. Privacy.  Customer will comply with all applicable laws and regulations with respect to the collection, processing, use and transfer of data, including without limitation the GDPR, and will defend, indemnify and hold WIN harmless from any claim against WIN as a result of Customer’s use of the System to the extent it relates to any such law or regulation.

10.5. Communication.  As part of our commitment to efficient communication, WIN may contact Customer via Short Message Service (SMS) or text messages. By continuing to engage with WIN, you herby authorize us to communicate with you through SMS or text messages for the purpose of delivering important information, updates, promotions, and other relevant content. Customer has the right to opt out of receiving SMS communications from WIN at any time. To opt out, please reply with the word “STOP” to any message you receive, or contact our Customer Support at [email protected]. Standard message and data rates may apply, depending on Customer’s mobile carrier plan. Any charges incurred from Customer’s carrier are responsibility of Customer. WIN recommends checking with your carrier for details on your specific plan and any associated costs.

10.6. Severability.  If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.

10.7. Waiver.  The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.

10.8. Notices.  All notices required or permitted under this Agreement will be in writing and delivered by courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt.  All communications will be sent to the other party’s registered office address or to such other address as may be specified by either party to the other in accordance with this Section.  Either party may change its address for notices under this Agreement by giving written notice to the other party by the means specified in this Section.

10.9. Relationship of Parties.  The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties.  Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

10.10. Announcements.  Customer agrees that WIN may publicly announce and list Customer as a customer of WIN.

10.11. Non-Solicitation.  Customer acknowledges that WIN has expended substantial time and money in the selection and training of its employees.  Accordingly, Customer will not, directly or through an intermediary, solicit, utilize or employ any employees of WIN during or for a period of one (1) year following the termination of this Agreement.  In the event Customer employs an employee of WIN during the term of this Agreement or during the one year period after termination thereof, Customer shall pay, as liquidated damages to WIN, an amount equal to one (1) year’s salary of such hired employee (at the payment rate at the time of the employee’s termination of employment with WIN) plus any incentive bonuses paid by WIN to the subject employee in the twelve (12) months preceding the subject employee’s termination of employment with WIN.

10.12. Drafting.  All parties and their counsel have had an opportunity to review and contribute to the drafting of this Agreement, and the rule of construction providing that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.  This Agreement shall be construed as drafted by both parties.

10.13. Entire Agreement.  This Agreement, including all schedules, exhibits and attachments attached hereto, contains the complete understanding and agreement of the parties and, other than the terms and special terms set forth in applicable Quotations, supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein.  Except for Quotations no terms, provisions or conditions of any purchase order, acknowledgement or other business form that either party may use in connection with the transactions contemplated by this Agreement will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of a receiving party to object to such terms, provisions or conditions.  Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the parties.

11. REFER-A-FRIEND PROGRAM TERMS AND CONDITIONS.

11.1.  Eligibility

11.1.1. To participate in the Refer-a-Friend program (the “Program“), you must be an existing customer of WIN Reality (“Company“).

11.1.2. Only individuals may participate.  Referrals from companies or institutions are not permitted.

11.1.3. You must be at least 18 years old to participate.

11.1.4. Company employees and their immediate family members are not eligible to participate.

11.2.  Referral Process

11.2.1. A Qualified Referral is defined as a purchase made at www.winreality.com by a person or entity (a “Referred Customer“) who arrives at our website by clicking your Refer-a-Friend program link. You are limited to one Qualified Referral for each Referred Customer; in other words, additional/repeat purchases made by a Referred Customer are not counted as additional Qualified Referrals.

11.2.2. The Referred Customer and the Referrer cannot be the same person (for example, by using a different email address).

11.2.3. You must comply with all up-to-date “SPAM” laws. For example, emails must be created and distributed in a personal manner and bulk email distribution is strongly discouraged. Any distribution of your referral link that could constitute unsolicited commercial email or “spam” under any applicable law or regulation is expressly prohibited and will be grounds for immediate termination of your account and exclusion from the Program.

11.2.4. Company reserves the right to close the account(s) of any Referrer and/or Referred Customer and to request proper payment if the Referrer and/or Referred Customer attempts to use the Program in a questionable manner or breaches any of these Terms & Conditions or is in violation of any law, statute or governmental regulation.

11.3.  Rewards

11.3.1. For you to earn referral rewards as a Referrer, the Referred Customer must subscribe to WIN services and complete at least one (1) full calendar month.

11.3.2. Rewards are payable per the chart below. The maximum Qualified Referrals earned per calendar year may be no more than 50 Qualified Referrals. As a Referrer, you are responsible for any and all tax liability resulting from Referral Rewards.

11.3.3. The reward may be in the form of a discount, credit, or other benefits, as determined by Company.

11.3.4. Rewards are subject to change and may vary based on promotions or offers.

11.3.5. Rewards will be credited to your account after the qualifying conditions are met.

11.3.6. Rewards will be processed and sent to the Referrer and the Referred Customer 31 days after the Referred Customer purchases a qualifying subscription plan.

Rewards vary based on the qualifying subscription plan purchased by Referred Customer:

ProductTermReferrer Reward Referred Customer Reward
StandardMonthly$20$20
StandardYearly$40$40
ProMonthly$25$25
ProYearly$50$50
Meta BundleYearly$50$50

11.4.  Limits

11.4.1. There is no limit to the number of friends you can refer, but Company reserves the right to impose limits or restrictions on the Program at its discretion.

11.5.  Termination

11.5.1. Company reserves the right to terminate or modify the Program at any time without prior notice.

11.5.2. Company may suspend or revoke rewards if it suspects fraud, abuse, or violation of these Terms and Conditions.

11.6.  Privacy

11.6.1. By participating in the Program, you agree that Company may use your name, username and/or likeness for promotional purposes.

11.7.  General

11.7.1. These Terms and Conditions are subject to change without notice.

11.7.2. Company reserves the right to make the final determination regarding the eligibility of referrals and the issuance of rewards.

11.7.3. Referral rewards are not transferable or exchangeable.

BY PARTICIPATING IN THE PROGRAM, YOU AGREE TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS, PLEASE DO NOT PARTICIPATE IN THE PROGRAM.

WIN REALITY RESERVES THE RIGHT TO MODIFY OR TERMINATE THE PROGRAM AT ANY TIME WITHOUT NOTICE.

12. IMPORTANT WIN REALITY SHORT BAT SAFETY & LIABILITY DISCLAIMER. READ CAREFULLY BEFORE USE.

12.1.  WarningThe use of the WIN Reality Short Bat (the “Product”) involves significant risks, including but not limited to injury, disability, and death. By using this Product, you understand and accept these risks. The Product is designed for virtual reality baseball or softball training and must be used strictly as intended. A hitter can generate speeds that pose a risk of serious injury or death to themselves and those around them. Always remain alert and follow all provided instructions correctly.

12.2.  Limitations on Use. This Product must only be used with compatible VR devices and strictly according to the provided instructions. It is not designed nor manufactured for any lethal purposes. Unlawful use of the Product is expressly prohibited.

12.3.  Inspection Before Use. Inspect the Product before each use to ensure it has not been damaged in shipment or during prior use. If any damage is found, do not use the Product and contact WIN Reality immediately for a replacement.

12.4.  Supervision and Installation. The Product should be used under adult supervision, especially for users under the age of 14. Ensure proper installation of the VR controller in the Product. WIN Reality is not liable for injury or damage resulting from improper installation or use.

12.5.  Limited Replacement Warranty. (a) Warranty Coverage:  WIN Reality warrants that during the period in which the Customer’s Subscription is active (the “Warranty Period”), all WIN-manufactured hardware, including the WIN Reality Short Bat, will function substantially in accordance with its published specifications and will be free from material defects. b) Warranty Service: Should any WIN-manufactured hardware exhibit defects in functionality or materials during the Warranty Period, WIN Reality will repair or replace the hardware. This service is subject to the return of the defective hardware to WIN Reality in accordance with WIN’s return policies and procedures.

12.6. Assumption of Risk. By purchasing, using, or allowing the use of this Product, you expressly and voluntarily assume the risk of injury or death while using the Product, irrespective of cause, including equipment malfunction or other faults of WIN Reality.

12.7. Limitation of Liability. Under no circumstances shall WIN Reality be liable for any direct, indirect, punitive, incidental, special, or consequential damages arising out of or connected with the use or misuse of this Product. Liability is limited to the repair, replacement, or refund of the purchase price at WIN Reality’s discretion.

12.8. Entire Obligation. This document states the entire obligation of WIN Reality with respect to the Product. If any provision is deemed void, invalid, or unenforceable, that provision will be replaced with a valid and enforceable one that matches the original intent, and the rest of the agreement remains in full effect.

12.9. Applicable Law. This disclaimer and the purchase of the Product are governed by the laws of Austin, Texas. By purchasing this Product, you consent to the jurisdiction of Austin, Texas.

12.10. Modification of Terms. WIN Reality reserves the right to change these terms and conditions at any time. Continued use of the Product after such changes constitutes agreement to the new terms.

12.11. Contact Information. For any concerns or questions about safe use, contact WIN Reality customer service at [email protected].

12.12. Acknowledgement. By using the WIN Reality Short Bat, you acknowledge having read and understood this disclaimer and agree to its terms.

WIN REALITY RETURN AND REFUND POLICY

At WIN Reality, customer satisfaction is our highest priority.  We want you to be happy with the products and services we provide and we stand behind what we sell.  Please read the following to determine if you are eligible to return equipment and/or receive a refund for products or services purchased from WIN Reality.

WIN Reality Products

WIN Reality hardware products are warranted to function in accordance with our published documentation and to not have any material defects.  As long as you have an active Subscription with WIN Reality, if any WIN-manufactured hardware fails because of a defect in the materials or workmanship of the product, you are eligible to return the product for a replacement.  Products damaged as a result of neglect, improper use or other actions by you or others are not eligible for returns.  See our Return Process below for how to return defective hardware.

WIN Reality Subscription

Our subscription services are provided via WIN Reality proprietary software.  For 90 days from the date your subscription starts, the software is warranted that it will function in accordance with our published documentation.  If, during that time, a defect in the software causes your subscription to fail to work properly, we will repair or replace the defective software to ensure your subscription works properly. If we are unable to correct errors and provide you with a working subscription within a reasonable amount of time, we will refund to you any amounts paid for periods during which the subscription did not work. 

Your subscription will automatically renew for additional terms of the same length as the original subscription.  You can cancel your subscription by providing notice of termination no later than 60 days from the end of your subscription that you do not wish for it to renew.  You can also terminate your subscription if WIN Reality is in breach of the Subscription Agreement and we fail to cure that breach within 30 days (please see your Subscription Agreement for details).

Unfortunately, we cannot offer refunds for cancelation of subscriptions for any reason other than those described in this Policy, including, but not limited to, your lack of use of the subscription, duplicate subscriptions, unwillingness to purchase additional equipment to use the subscription, lack of knowledge the subscription was started (except in cases of actual fraud by non-family members), or for any other reason.  

If you terminate your subscription for WIN Reality’s breach as described in the Subscription Agreement, we will refund any prepaid but unused fees.

Third Party Products

In order to have full use of your subscription, you will need to purchase certain third party products.  WIN Reality does not provide any warranty or service related to those third party products, but we will, to the extent we are allowed, pass through to you any third party manufacturer’s warranty.  If third party products fail to work, you will need to contact the applicable manufacturer for their warranty, return and/or refund options.

Return Process

In order to return a WIN Reality hardware product to us, you will need to contact us at [email protected] and we will provide you with instructions.  Once we receive the product, we will update our records to indicate we received it, and after inspection, if we determine the product was defective through no fault of yours, we will replace it with a non-defective product.

VIDEO/PHOTOGRAPH RELEASE

If the Player identified is under the age of 18, this Release is completed and agreed to by the Player’s parent or guardian on behalf of the Player.  If the Player is over the age of 18, this Release is completed and agreed to by the Player.

I, on behalf of myself, or on behalf of the Player, voluntarily grant WIN Reality LLC (“WIN”) the absolute and irrevocable right and permission to use the Player’s name, image, likeness, voice and/or appearance in any photos, video recordings, audiotapes, digital images and the like taken or made by or on behalf of WIN (“Materials”).  If Materials were created prior to agreement to this Release, I grant the same right and permissions under this Agreement for all such previously made Materials.  I agree that WIN has complete ownership of the Materials, and any reproductions, modifications, compilations and derivative works, and can use the Materials for any purpose consistent with WIN’s business without compensation to Player or any other person.  These uses include, but are not limited to, including the Material in WIN’s virtual reality applications, promotional materials, advertisement, publications, websites and news releases.  I waive the right to approve the final product.

I acknowledge that Player will not receive any compensation for use of the Materials by WIN or its licensees, but at WIN’s discretion Player may be eligible for global rankings on WIN’s app, discounts on WIN’s products and other promotional considerations that will be communicated to Player at the time of an event or otherwise.

I hereby release, acquit and forever discharge WIN, its agents, officers and employees from any and all claims, demands, rights, promises, damages and liabilities arising out of or in connection with the use or distribution of the Materials, including but not limited to any claims for invasion of privacy, appropriation of likeness or defamation.

This Agreement is governed by Texas law, and I agree to the exclusive jurisdiction of the state and federal courts located in Austin, Texas for the resolution of any dispute arising out of this Agreement.

I hereby warrant that (i) I am the parent or legal guardian of Player, or, as applicable (ii) I am eighteen (18) years old or more and competent to contract in my own name.  This release is binding on me, Player, and our heirs, assigns and personal representatives.