Effective Date: February 1, 2017

Welcome to PitchKount! We are a service that provides its customers with access to web-based software for storing and reporting pitch count information for a wide variety of baseball teams. These Terms of Use govern your use of any website, software and/or application (collectively, “Software”) owned or operated by or on behalf of PitchKount LLC (“PitchKount”, “we”, “us”) or its affiliated companies. Your use of the service is also governed by PitchKount’s Privacy Policy. PitchKount may modify these Terms of Use and/or the Privacy Policy at any time without notice, and we encourage you to review them because any modifications will be binding on you. When you access or use the Software, you accept the version of the Terms of Use and the Privacy Policy then in effect without limitation or qualification.

1. Use and Restrictions

PitchKount hereby grants you a non-exclusive, non-transferable license to use and access the Software for your internal or personal use. All data, text, graphics, documents, files, videos and other content (all of which are referred to below as the “Content”) associated with the service are provided for informational purposes only, and may be subject to change at any time. We do not and cannot warrant or verify that any Content represents the most current or accurate information. Other than for your use of the Software as expressly permitted in these Terms of Use, you must not access or attempt to access any systems or servers on which the Software is hosted or modify or alter the service in any way.

In addition, you may not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit the Software; (ii) decompile, disassemble, copy, modify, attempt to discover the source code or reverse engineer any portion of the Software or permit any third parties to do so; (iii) use the Software to send spam or otherwise duplicative, unsolicited or fraudulent messages in violation of applicable law; (iv) use the Software to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (v) use the Software to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (vi) intentionally interfere with or disrupt the integrity or performance of the Software; or (vii) share authentication credentials with or access to the Software with any person or entity, or share any authorization credentials between multiple users.

2. Eligibility

To use or access the Software, you must (i) accept these Terms of Use; and (ii) comply with these Terms of Use. By using or accessing the Software, you accept and agree to these Terms of Use. To use certain features of the Software, you may be required to provide authentication credentials. You are responsible for maintaining confidentiality of your authentication credentials and for all activities that occur relating to your account. You must immediately notify us if you learn of any unauthorized use of your account.

3. Intellectual Property Rights

The Content and the Software are the sole property of PitchKount and/or its licensors, may be protected by copyright, trademark and other intellectual property laws and may not be used except in accordance with these Terms of Use or with PitchKount’s express written consent. You must not modify, distribute, transmit, display, perform, reproduce, publish, license, create derivative works of, transfer, or sell any portion of the Content or the Software.

All trademarks, service marks, trade names, logos and trade dress, whether registered or unregistered (collectively the “Marks”) that appear on the Software are proprietary to PitchKount, its subsidiaries and affiliates, or such marks’ respective owners. You must not display or reproduce the Marks other than with the prior written consent of PitchKount. You must not remove or otherwise modify any trademark notices or other proprietary notices from any Content.

You must not upload or provide any content that infringes the intellectual property rights of any third party, and you agree to defend and indemnify PitchKount and its affiliates from and against any liabilities associated with a claim that content that you upload or provide infringes any third party intellectual property rights.

4. Your Account

To access and use the Software, you are required to create an account (“Account”) by providing your name, email address, password, telephone number and, if applicable, credit or debit information. You agree to provide us with true, current and accurate information in your Account, and to promptly update your Account if any of the information associated with your Account has changed.

5. User Data

You will retain all ownership of the data that you submit to the Software in the course of this Agreement (“User Data”). You are solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, or intellectual property ownership or right to use any User Data. PitchKount cannot guarantee or be responsible for any damage or loss related to the accuracy or completeness of the Content or User Data. PitchKount assumes no responsibility for any consequence relating directly or indirectly to any action or inaction that you take based on the Content or other information or materials available via the Software. You grant to PitchKount an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide license, with the right to sublicense, use, reproduce, publish, distribute, perform, and display User Data for the purpose of: (i) providing you services; (ii) making certain User Data available to other PitchKount customers or users as part of providing services to such customers or users; and (iii) providing User Data in aggregate form to third parties, provided, however, that such aggregate information will not include information which could be used to identify you. PitchKount may access User Data to service or respond to technical issues with the Services.

6. Your Responsibilities

You are responsible for all activity occurring under your Account and shall comply with all applicable laws and regulations in connection with your use of the Software, including but not limited to those related to data privacy, international communications, the transmission of technical or personal data and export control laws and regulations.

You shall: (i) notify PitchKount immediately of any unauthorized use of any password or Account or any other known or suspected breach of security with respect to the Software; (ii) report to PitchKount immediately and use reasonable efforts to stop immediately any copying or distribution or misuse of the Software or Content, that you become aware of or that you suspect; and (iii) not impersonate another user or provide false identity information to gain access to or use the Software.

You represent and warrant that you have obtained all necessary parental consents or third party consents needed to provide User Data to PitchKount. You shall comply with all applicable law, rules and regulations, including but not limited to all data privacy laws, such as, for example, the Children’s Online Privacy Protection Act of 1998.

You shall indemnify and hold PitchKount, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) your use of the Software; (ii) any claim alleging that transmission, storage, or other use of User Data infringes or violates the rights of, or has caused harm to, a third party; or (iii) any breach or alleged breach by you of this Terms of Use. If PitchKount requests that you defend it, PitchKount will give you prompt written notice of the claim against which it seeks to be indemnified. PitchKount will allow you to direct the defense and settlement of any such claim, and will provide you with information and assistance that are reasonably necessary for the defense and settlement of the claim, provided that you shall not settle any claim without the written approval of the PitchKount. PitchKount will have the right to retain separate counsel and to participate in (but not control) any such action, but the fees and expenses of such counsel will be at the expense of PitchKount.

7. Payment

You agree to pay all fees or charges to your Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. By providing PitchKount with your credit card number or debit card number and associated payment information, you agree that PitchKount is authorized to immediately invoice your Account for all fees and charges due and payable to PitchKount under these Terms of Service and that no additional notice or consent is required.

8. Modifications

We may close your account, discontinue offering the Software or any of its functions, or modify any offerings at the Software at any time without notice. Any Content offered or posted on the Software is subject to modification or discontinuation at any time and from time to time without notice or obligation to you. As noted above, PitchKount reserves the right, at any time and from time to time, without notice, to modify, alter, or update these Terms of Use, and your continued use of the Software after such modifications, alterations or updates signifies your agreement to be bound by such modifications, alterations or updates. PitchKount may also make improvements and/or changes in the Software or any portion of it at any time without notice or obligation to you. Your rights to use the Software shall automatically terminate if you breach any term of these Terms of Use or Privacy Policy.

9. Links to Third Party Websites

The Software may contain links to websites and other resources operated by third parties other than PitchKount. Any such links are provided solely as a convenience to you. PitchKount does not control such websites, and is not responsible for the content, products, services or information offered by any third parties. The inclusion of links to any third party websites on the Software does not imply our endorsement of any website or the content, products or services offered, advertised, endorsed or promoted by any third party, or of any company or person.

10. Warranties and Disclaimer

THE SOFTWARE AND ANY CONTENT PROVIDED VIA THE SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PITCHKOUNT AND ITS AFFILIATES DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, THE CONTENT AND ANY SERVICES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM ERRORS, OMISSIONS, MALICIOUS CODE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, PITCHKOUNT DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE, CONTENT OR ANY SERVICES OR ANY OTHER INFORMATION ACCESSIBLE VIA THE SOFTWARE IS SECURE, ACCURATE, COMPLETE. PITCHKOUNT MAKES NO WARRANTY THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT ACCESS TO THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. AS A CONDITION OF YOUR USE OF THE SOFTWARE, YOU WARRANT TO PITCHKOUNT THAT YOU WILL NOT USE THE SOFTWARE FOR ANY PURPOSE THAT IS UNLAWFUL OR PROHIBITED BY THESE TERMS OF USE.

11. Limitation of Liability

PITCHKOUNT AND ITS AFFILIATES OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS AND THIRD PARTY PARTNERS WILL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, MULTIPLIED OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER CONTRACT, TORT OR ANY OTHER THEORY, INCLUDING, WITHOUT LIMITATION, ARISING OUT OF OR IN CONNECTION WITH ANY LOSS OR OTHER DAMAGES IN CONNECTION WITH YOUR USE OF THE SOFTWARE OR ANY CONTENT ON THE SOFTWARE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

12. Governing Law

These Terms of Use and the relationship between you and PitchKount will be governed by the laws of the State of Georgia, USA, without giving effect to principles of conflict of laws of any jurisdiction. All litigation, court proceedings, arbitration proceedings, mediation proceedings, lawsuits, court hearings and other hearings or actions initiated in connection with the Software and/or the Content must and will be venued exclusively in Coffee County, Georgia.

13. Miscellaneous

If any provision of these Terms of Use or the Privacy Policy is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect the effectiveness or validity of any provision, and these Terms of Use and the Privacy Policy will be reformed, construed and enforced in such jurisdiction as if such provision had never been contained in the document.

You agree that no joint venture, partnership, employment, or agency relationship exists between you and PitchKount as a result of these Terms of Use, our Privacy Policy or any use of the Software. PitchKount’s performance of these Terms of Use is subject to existing laws and legal process, and nothing contained in these Terms of Use or our Privacy Policy is in derogation of PitchKount’s right to comply with law enforcement requests or requirements relating to your use of the Software or information provided to or gathered by PitchKount with respect to such use.