Terms & CONDITIONS
BaTTISTA HOCKEY, LLC
TERMS AND CONDITIONS OF SALE
1. Battista Hockey, LLC Terms and Conditions Control the Agreement.
a. These terms and conditions are incorporated into and made a part of the agreement for any purchase of goods referenced on any relevant apparel, equipment, or athletic products (“Goods”) and coaching, training, and instructing, mentoring, overseeing of camps and workshops services and any other related services (the “Services”) which may include, without limitation, a , proposal, or any lesson or activity package (collectively the “Agreement”) as provided by Battista Hockey, LLC, its subsidiaries, and any of its affiliates (collectively, “Battista Hockey”).
b. The Agreement expressly limits Client’s acceptance to these terms and conditions. Client may reject the Agreement by not scheduling, purchasing, or receiving any Goods or Services. The Agreement does not constitute an acceptance by Battista Hockey of any offer or counteroffer of Client, and Battista Hockey hereby rejects any additional, different, or inconsistent terms, conditions or limitations contained in or incorporated by reference in any forms, pre-existing policies, purchase orders, or other documents of Client that already have been or hereafter may be presented to Battista Hockey with respect to the Agreement.
c. If Client has submitted or will submit additional and/or different terms and conditions to Battista Hockey, or submit a counteroffer to Battista Hockey, Battista Hockey’s subsequent performance will not be construed as either acceptance of Client’s additional and/or different terms and conditions or Client’s counteroffer, nor will Battista Hockey’s subsequent performance be viewed as willingness to accept any provisions of the Uniform Commercial Code, as adopted by any State or Commonwealth, that is contrary or in addition to any of the terms and conditions hereof.
i. Any change to the agreed-to Agreement will be described in a written Change Order prepared by Battista Hockey which describes with reasonable specificity the proposed changes in service or goods to be delivered. No Amendment shall be effective unless jointly agreed to in writing by Battista Hockey and Client. After signing, the Change Order becomes incorporated into the Agreement and subject to these terms and conditions. Change Orders can be required for reasons including but not limited to: Conditions Beyond Battista Hockey's or Client’s Control: for example, illness or injury of the student or parent. Other conditions are determined on Battista Hockey’s discretion.
ii. Changes Desired by Client, for example upgrading to a new lesson plan.
d. Conditions Not Immediately Apparent: Conditions not apparent to Client or Battista Hockey upon first consultation and negotiation that may become apparent as the worked contracted for is completed. Examples include underlying availability sues or structural issues discovered upon installation.
e. Price Allowances: Should the cost of materials exceed the allowed cost due to industry price increases or the Client’s selection, for example the price of ice time or equipment increasing between estimation and purchase.
f. Changes Desired by Client, for example an upgrade to the equipment agreed upon.
g. Battista Hockey is an independent contractor and is not an employee or agent of the Client. This Agreement shall not be deemed or construed to create a partnership, a joint venture, an employer/employee relationship, or a principal/agent relationship between the parties hereto.
Due to the unpredictable nature of the Services and the constant potential for Change Orders, nothing in this Agreement shall obligate Battista Hockey to abide by any firm start or end dates to any lesson plan.
2. Term. This Agreement is effective as of the date of purchase of Services (the “Effective Date”) unless it expires or is earlier terminated by either party in accordance with the terms of this Agreement (the period from the Effective Date to expiration or earlier termination, the “Term”).
3. Prices. Unless otherwise agreed to by Battista Hockey in writing, Battista Hockey’s prices for the Goods and Services will be the price as stated at the time of purchase, on the Battista Hockey website, or in the Agreement (the “Fee”). If such display or document fails to contain a listed Fee, then Battista Hockey’s standard prices for such Goods and Services as of the date hereof shall be used in calculating the amount owed by Client; provided, however, that Battista Hockey may change the price for the Goods and Services in accordance with any change to its standard pricing for such Goods and Services prior to the date of shipment of goods and/or performance of services.
4. Specifications.
a. Any departure from the agreed-upon Services will require a Change Order as described in Section (1)(c) and will entail additional charges.
b. Unless Battista Hockey has expressly agreed otherwise in writing, it is Client’s responsibility to ensure that the Services provided are the ones that Client has requested in all regards. BATTISTA HOCKEY HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES THAT GOODS AND SERVICES CONFORM TO ANY SPECIFICATIONS, UNREASONABLE EXPECTATIONS, OR EXAMPLES RELIED UPON BY CLIENT.
c. In the event of a typographical error relating to price or other contractual term described by Battista Hockey in the Agreement, Battista Hockey reserves the right to refuse to perform for the price in error and/or honor such erroneously stated contract terms.
5. Photography. Client grants Battista Hockey permission to take photographs during coaching, sessions, camps, games, scrimmages, and during performance of any other relevant services and authorizes Battista Hockey and its assigns and transferees to use and to copyright Client’s likeness and that of Client’s property in print and/or electronically in a photograph, video, or other digital media (“Photos”) in any and all of its publications, illustrations, and advertising, including social media and other web-based publications. Client understands and agrees that all Photos will become the property of Battista Hockey and may not be returned. Client irrevocably authorizes Battista Hockey to edit, alter, copy, exhibit, publish, or distribute these Photos for any lawful purpose for which Client waives any right to inspect or approve the publication wherein Client’s likeness appears. Client understands that no payment, royalty, fee, or other compensation shall become payable to Client by use of the Photos. Client affirms the consent of parent or guardian if necessary and Client’s will be provided with a Release for activity and photos to acknowledge.
6. Delivery of Goods; Performance of Services
a. Shipment of all Goods shall be made F.O.B. point of shipment. Client shall bear the risk of loss and damage to Goods after delivery to the point of shipment.
b. Any shipping dates for Goods or performance dates for Services given in advance of actual shipment of Goods or performance of Services are Battista Hockey’s best estimates for informational purposes only, and deliveries of Goods and performance of Services will be made subject to prior orders on file with Battista Hockey. Unless otherwise agreed to by Battista Hockey in writing, Battista Hockey may, in its sole discretion, use any commercial carriers for shipment of the Goods.
c. Unless otherwise agreed to by Battista Hockey in writing, Client will pay all insurance costs in connection with delivery of the Goods, if any, and be responsible for filing and pursuing claims with carriers for loss of, or damage to, Goods in transit.
d. If Client is unable to receive the Goods when they are tendered, Client will be liable to Battista Hockey for any losses, damages, or additional expenses incurred or suffered by Battista Hockey as a result of Client’s inability to receive the Goods.
e. Client immediately will inspect all Goods upon its receipt of them and will be deemed to accept the Goods upon receipt. Any claims for shortages or discrepancies will be waived by Client unless made in writing to Battista Hockey within five days of receipt of the Goods.
f. Battista Hockey may cancel in whole or in part any order for Goods or Services, for any cause determined by Battista Hockey, under the Agreement at any time.
g. Until Client has fully and finally paid all amounts owed to Battista Hockey for any Goods, Client shall hold such Goods in trust for Battista Hockey, and Battista Hockey may repossess them if Client fails to pay for them in a timely fashion.
7. Payment.
a. All payments for Goods and Services must be made in United States currency unless specified in writing by Battista Hockey. Payments for Goods and Services will be made by such means as Battista Hockey may specify, such as by credit card or bank transfer provided that Battista Hockey may refuse, in its sole discretion, payment by any means.
b. Battista Hockey shall have the right to offset any and all amounts due and owing from Battista Hockey to Client under this Agreement, including, without limitation, any chargebacks, or rebates, against any amounts due and owing from Client to Battista Hockey under this Agreement.
c. By signing the Agreement, Client agrees to pay the Fee in full. Payment of the full Fee is due and payable regardless of whether Client completes the program(s), session(s), or delivers other Goods and Services contained in the Agreement.
d. The Fee shall be paid in immediately available funds as follows:
i. According to the payment obligations listed on Battista Hockey’s website at https://www.battistahockey.com/lessonplans
1. For the Group (Black) Lesson Plan –
a. 100% payment due per month or per lesson plus additional ice rink fees charged by participating ice arena
b. Remedy: if Client cancels this package, Client may redeem credits to lessons, but is not entitled to a cash refund
c. Discount: Clients who pay the fee in full in advance are entitled to a discount
d. Scheduling: Clients are permitted one reschedule. After any two cancellations, regardless of timing of payment, Client loses scheduled time slot and is ineligible to register for the Black Lesson Plan for the following month.
e. Minimum lessons: A minimum of four (4) lessons are required for this plan.
f. https://www.battistahockey.com/grouplessonplanblack
2. For the Drop-In (Gray) Lesson Plan –
a. 100% payment due upon scheduled confirmation and prior to lesson plus additional ice rink fees charged by participating ice arena
b. https://www.battistahockey.com/dropinlessonplangray
3. For the Private (Blue) Lesson Plan –
a. 100% payment due per month or whole package can be paid at once
b. Remedy: if Client cancels this package, Client may redeem credits to lessons, but is not entitled to a cash refund
c. https://www.battistahockey.com/privatelessonplanblue
4. For the Private (Yellow) Lesson Plan –
a. 100% payment due per month or whole package can be paid at once
b. Remedy: If Client cancels lessons, Client is not entitled to a cash refund or credit for the first three (3) months of the six (6) month commitment. If the player is injured with more than three (3) months remaining, Client is entitled to a monetary refund for the latter three (3) months of the six (6) month period.
c. Renewal: Client is required to recommit in the third month of the six (6) month commitment period.
d. https://www.battistahockey.com/privatelessonplanyellow
e. All payments for each lesson plan are due in advance of the performance of Services. Any payment not received in advance of the performance of Services will result in automatic cancellation of the lesson. Battista Hockey is not obligated at any time to reschedule lessons cancelled for late payments or payments not received.
f. If Client elects to pay the Fee in monthly payments, all payments shall be charged to the credit card provided via invoice, and Client authorizes Battista Hockey to make all charges at the time they are due without separate authorization. Upon registering for any package offered by Battista Hockey, Battista Hockey is authorized to deduct recurring monthly charges, which must be paid by electronic funds transfer from your checking or savings account or automatic transfer from an accepted credit or debit card. Client acknowledges that no prior notification will be provided for recurring payments. In the event any payment due under the Agreement is late, Client’s participation in the program(s), session(s), or other Services contained in the Agreement will be suspended until payment is made.
g. It is Client’s responsibility to maintain a current credit card on file and update its information if said credit card expires during the term of the Agreement. Approval of monthly payments does not convert the program to a month-to-month program. The full amount of the Fee is due and payable upon signing the Agreement, regardless of how payments are made. In the case of default, Client will be liable for all collection costs incurred by Battista Hockey including, without limitation, attorneys’ and collection agency fees, and all related disbursements.
h. Past due amounts are each subject to a $5 late fee and service charges up to of one and a half percent (1 ½%) per month or the maximum percentage rate permitted by law, whichever is higher
i. All payments for packages are nonrefundable.
8. Binding Commitment. Upon registering for any and all packages offered by Battista Hockey, Client is entering into a binding commitment for the duration of the selected and applicable package. This commitment requires Client to abide by these Terms and Conditions as well as the terms specific to the selected and applicable package.
9. Taxes and Third-Party Fees.
a. The purchase price of the Goods and Services does not include taxes. The Client is responsible for payment of any taxes, and any present or future sales, use, excise, import or any similar tax or other governmental charge applicable to the Agreement and pursuant to or in connection with the sale, purchase, processing, delivery, performance or shipment of the Goods and Services.
b. The Client is responsible for any applicable third-party fee, including, without limitation, credit card fees, telephone toll charges, mobile carrier fees, Internet Service Provider charges, and data plan charges.
10. Termination.
a. Battista Hockey may terminate the Agreement at any time upon written notice if Client fails to pay any amount when due thereunder: (i) and such failure continues for ten (10) days after Client’s receipt of written notice of nonpayment; or (b) such failure occurs two (2) or more times in any three (3) month period.
b. The Agreement shall terminate upon the mutual agreement of Battista Hockey and the Client.
c. Client has the right to terminate this Agreement after signing but will forfeit the deposit to cover expenses in design and planning, overhead, and lost opportunity cost.
d. Battista Hockey may terminate the Agreement without cause at any time, as determined at its sole discretion, and shall issue a pro rata refund of any unused Fees paid.
11. Survival. The rights and obligations of Battista Hockey and Client as set forth in the Agreement shall survive its termination or expiration, including but not limited to, nondisclosure of Confidential Information and compliance with intellectual property rights.
12. Cancellation.
a. Client may cancel its order for Goods or scheduled session(s), lesson(s), or other individually scheduled Services with Battista Hockey according to the Lesson Plan selected by Client. Client agrees that is the responsibility of the Client to review the different cancellation policies for the Lesson Plans. Cancellations made in violation of the above twenty-four (24) hour advance notice requirement shall result in the forfeiture of the acquisition of goods or of the scheduled session, appointment, or other Service, and Client shall be fully bound and obligated to pay the agreed-upon contract price for such Goods and Service.
b. If Battista Hockey decides to extend the above one-time pass for cancellations made in violation of the twenty-four (24) hour cancellation policy to cover and apply to additional improper cancellations, such extensions shall not restrict, and shall not be construed to reduce in any capacity, the ability of Battista Hockey to strictly enforce its cancellation policy in the event of future improper cancellations.
13. DISCLAIMER OF WARRANTIES.
a. Battista Hockey shall use commercially reasonable efforts to ensure the suitability and conformance of the Goods and Services.
b. BATTISTA HOCKEY WARRANTS THAT THE SERVICES WILL BE PERFORMED IN A PROFESSIONAL MANNER.
c. BATTISTA HOCKEY HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, WHETHER ARISING BY CONTRACT LAW OR IN EQUITY, WITH RESPECT TO THE GOODS AND SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, ANY WARRANY AGAINST DEFECTS IN DESIGN, MATERIALS AND WORKMANSHIP, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OF GOODS, OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS, ANY WARRANTY AGAINST REDHIBITORY DEFECTS, ANY WARRANTY OF GOOD TITLE, AND ANY WARRANTY AGAINST INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY PATENTS, TRADEMARKS, OR COPYRIGHTS.. BATTISTA HOCKEY EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
d. GOODS DELIVERED ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND.
14. Limitation of Remedies.
a. Client’s sole remedy for all damages, which Client may select to pursue upon notice to Battista Hockey at Battista Hockey’s discretion, but that must remain subject to the limiting language of Sections 13 and 14, shall be credit redeemable for future Services rendered by Battista Hockey equal to the full Fee listed in the Agreement.
b. If Client or Battista Hockey has a claim or issue relating to the Goods and Services of the Agreement, such claim or issue will be disclosed by written notice to the other party within thirty (30) days of either the date of the occurrence of such claim or issue, or the date that such claim or issue becomes known, whichever is later. If any claim or issue is not disclosed to the other party within the timeframe stated above, then such claim or issue shall be deemed unenforceable and all rights to a remedy shall be totally forfeited.
c. The Client’s EXCLUSIVE remedy against Battista Hockey for any claim for, or arising out of, any defect in a Good tendered to Buyer is the repair or replacement of the Good, or alternatively, at Battista Hockey’s sole election, a refund of the purchase price of the Good.
d. These remedies only will only be available to the Client for one year after the Good is tendered or Service is provided to the Client, and Battista Hockey’ obligations under this Section will be void unless Client provides Battista Hockey with notice of the defect in the Good or Service within 30 days of discovery of the defect.
e. Any Good returned to Battista Hockey for replacement or refund under this Section will be returned by the Client in accordance with Battista Hockey's return authorization procedures then in effect, returns for a refund may be subject to restocking fees. Custom apparel is not returnable.
15. Limitation of Liability.
a. NOTWITHSTANDING ANYTHING ELSE CONTAINED HEREIN TO THE CONTRARY, IN NO EVENT WILL:
i. BATTISTA HOCKEY BE LIABLE TO CLIENT FOR ANY CIRCUMSTANTIAL, CONSEQUENTIAL, CONTINGENT, EXEMPLARY, INCIDENTAL, INDIRECT, LIQUIDATED, MATERIAL, PUNITIVE, SPECIAL, SPECULATIVE OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, ATTORNEYS FEES OR COURT COSTS ARISING IN ANY MANNER PURSUANT TO OR IN CONNECTION WITH THE AGREEMENT OR THE SERVICES (EVEN IF BATTISTA HOCKEY IS MADE AWARE OF THE POTENTIAL FOR SUCH DAMAGES), OR DAMAGES FOR COST OF REPLACEMENT GOODS, OR
ii. BATTISTA HOCKEY’S TOTAL LIABILITY RELATED TO ANY GOODS OR SERVICE EXCEED THE PURCHASE PRICE OF SUCH GOODS OR SERVICE.
b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BATTISTA HOCKEY DISCLAIMS ALL LIABILITY RELATED TO AND EMERGING FROM PERSONAL INJURY TO THE CLIENT, WHETHER IN THE FORM OF STRESS, EMOTIONAL DISTRESS, ANXIETY, OR ANY OTHER TYPE OF INJURY, AND WHETHER INCURRED DIRECTLY OR INDIRECTLY FROM THE SERVICES OFFERED IN THE AGREEMENT.
c. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BATTISTA HOCKEY DISCLAIMS ALL LIABILITY RELATED TO AND EMERGING FROM ANY NEGLECT OR WRONGDOING OF ANY OFFICER, AGENT, EMPLOYEE OR OTHER AFFILIATE OF BATTISTA HOCKEY.
16. Indemnification. Client will indemnify, defend and hold harmless Battista Hockey, its members, officers, directors, employees, agents and representatives from and against all losses, damages, liabilities, costs, and expenses including, without limitation, property damage, loss of profits or revenue, loss of use of any property, cost of capital, cost of purchased or replacement power or temporary equipment, personal or bodily injury, or death (“Losses”), that may arise pursuant to or in connection with the Agreement or the Goods and Services, regardless of whether such Losses are suffered directly by Client or arise pursuant to or in connection with a third-party suit, claim, counterclaim, demand, judgment or other action (each a “Claim”) and regardless of whether or not Battista Hockey or any third-party is proportionately negligent with respect to such Losses and/or Claim, provided that Client need not indemnify Battista Hockey for Battista Hockey’s obligation, if any, to Client under the remedies described herein. For the avoidance of doubt and without limitation, this indemnification obligation requires Client to pay any judgments against Battista Hockey or any other indemnified party resulting from any Claim, any court costs of Battista Hockey or any other indemnified party in connection with any Claim, and any reasonable attorneys’ fees and disbursements incurred by Battista Hockey or any other indemnified party in Battista Hockey’s defense of any Claim. Battista Hockey will have the sole and exclusive right to conduct the defense of any Claim at Client’s sole and exclusive cost and expense. Client’s indemnification obligation does not depend on the truth or accuracy of any allegations made against Battista Hockey, Client or any third party.
17. Effectiveness of Release. Client agrees to a Release in order to obtain the performance of Services by Battista Hockey. Client agrees that the Release will become effective upon the date of agreement and purchase and participation in activity. Nothing contained in the Release will be deemed or construed to amend, supplement, or modify the Agreement or otherwise affect the rights and obligations of any party thereto, all of which remain in full force and effect.
18. Client’s Obligations.
a. The Client must provide Battista Hockey with accurate and complete information, documentation, and materials necessary and applicable for Battista Hockey to complete the Services, including, without limitation, player experience, age, position, parent/guarding contact information, and any other relevant information. Compliance with any such rule, codes or regulations shall be the responsibility of the Client, unless otherwise agreed.
b. The Client agrees to arrive timely at ice rink or designated location and ready for the activity with skates and gear on. Battista Hockey is not obligated to run lessons over the allotted time due to tardiness.
c. The Client is responsible for timely payment for Lesson Plans with a credit card through the accepted means of invoicing.
d. The Client is responsible for adhering to the commitment policy of the selected Lesson Plan. It is the Client’s responsibility to remain adhere to the commitment time for the appropriate Lesson Plan. Commitment periods can be reviewed at https://www.battistahockey.com/lessonplans.
e. The Client is responsible for providing any necessary equipment, such as helmets and protective gear and padding as well as hockey skates.
19. Battista Hockey’s Obligations. Battista Hockey will produce services of good quality that is both reliable, professional, knowledgeable, and safe.
20. Assignment. Neither party may assign or transfer these rights, duties, and obligations set forth in this agreement without the prior written consent of the non-assigning party.
21. Intellectual Property.
a. All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade secrets, proprietary methods, techniques, and information, methods, know-how, and other confidential information, trade dress, trade names, logos, company names, and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are provided to Client under this Agreement in the course of performing the Services (collectively, the “Owned Intellectual Property”) shall be owned by Battista Hockey.
b. Battista Hockey hereby grants Client a license to use all Intellectual Property Rights in the Owned Intellectual Property free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Client to make reasonable use of the Owned Intellectual Property and the Services.
22. Product Suitability. Goods sold by Battista Hockey are designed to meet stated U.S. safety standards and regulations. Because local safety standards and regulations may vary significantly, Battista Hockey cannot guarantee that the Goods meet all applicable requirements in each locality. Buyer assumes responsibility for compliance with such safety standards and regulations in the localities in which the Goods will be shipped, delivered, and used. Before purchase and use of any Goods, Buyer should review the national and local codes and regulations and verify that the use of the Goods will comply with them.
23. Laws. Client hereby warrants and represents that it will comply with any and all Laws with respect to the purchase, use, and operation of any and all Goods and Services. For purposes hereof, “Laws” means any national, federal, state, municipal, local (or other political subdivision) or administrative laws, constitutions, statutes, codes, ordinances, rules, regulations, requirements, standards, policies, or guidance having the force of law, treaties, judgments or orders of any kind or nature whatsoever, including, without limitation, any judgment or principle of common law.
24. Interpretation of the Agreement.
a. None of Battista Hockey’s or Client’s members, officers, partners, managers, employees, agents, or representatives have any authority to orally modify or alter in any way the terms and conditions of the Agreement. The terms, conditions, and limitations set forth in the Agreement can be modified, altered, or added to only by a subsequent written instrument signed by an authorized representative of Battista Hockey and Client or by language included on the Scope of Services. Regardless of how many times Client purchases, or has purchased, Services from Battista Hockey by whatever means, each time Client accepts the Agreement, Client and Battista Hockey enter into a separate agreement that will be interpreted without reference to any other agreement between Client and Battista Hockey, or what Client may claim to be a course of dealing or course of performance that has arisen between Client and Battista Hockey. No inconsistent usage of trade or industry custom, if any, prior to, contemporaneous with or subsequent to the making of the Agreement will waive, vary, serve to explain, or serve to interpret any of the terms, conditions, and limitations of the Agreement.
b. The Agreement is the sole and exclusive agreement with respect to the matters discussed herein and the provision of Goods and Services hereunder, (except for any contemporaneous writing agreed to in writing both by Battista Hockey and Client expressly modifying the terms and conditions hereof, which is hereby incorporated herein by reference and made a part hereof) and supersedes all prior and contemporaneous agreements and understandings, negotiations, inducements, representations or conditions, whether oral or written, whether express or implied, with respect to such matters.
c. Failure by Battista Hockey to enforce any of the terms, conditions and limitations of the Agreement will not constitute a waiver of those terms, conditions and limitations or a waiver of any other terms, conditions or limitations of the Agreement, and the failure of Battista Hockey to exercise any right (whether provided by the Agreement, law, equity, or otherwise) arising from Client’s default under the Agreement will not constitute a waiver of that right or any other rights.
25. Confidentiality.
a. From time to time during the Term of this Agreement, either Battista Hockey or Client (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within 5 days thereafter, is summarized in writing and confirmed as confidential, specifically including the Owned Intellectual Property (“Confidential Information”) and including without limitation all confidential or proprietary information and all trade secrets of or relating to the Disclosing Party, including intellectual property in the form of copyrights, and trademarks and applications therefor, , ideas, , works, , improvements, information, documents, , practices, processes, methods, developments, , , techniques, data, programs, other know-how or material, owned, developed or possessed by the Disclosing Party, whether in tangible or intangible form, information in respect of the Disclosing Party’s operations, processes, products, inventions, business practices, finances, principals, vendors, suppliers, customers, clients, potential customers or clients, marketing methods, costs, prices, contractual relationships, regulatory status, prospects, employees, and other service providers; provided, however, that Confidential Information does not include any information that:
i. is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section.
ii. is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information;
iii. was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or
iv. was or is independently developed by Receiving Party without using any Confidential Information.
b. In taking possession of or otherwise acquiring Confidential Information in the manner described above, the Receiving Party shall:
i. protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would use to protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care.
ii. not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and
iii. not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement.
c. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section, Receiving Party shall mean the Receiving Party’s affiliates, employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
26. Force Majeure.
a. Battista Hockey shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (including, without limitation, the failure to deliver Goods or perform any services) when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Battista Hockey including, without limitation, the Client’s delay in providing necessary information or approvals to Battista Hockey, failure of the Client to timely make payments or decisions, difficulty obtaining required building permits or other government approvals necessary for the Services, failure in performance that Battista Hockey could not have reasonably foreseen or provided against, loss of key employees due to injury or other reasons Battista Hockey could not have foreseen or provided against, difficulty due to economic or other conditions in hiring replacement for lost personnel adequately skilled to perform to Battista Hockey’s standards, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), severe personal illness, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, or telecommunication breakdown or power outage (each a “Force Majeure Event”).
b. If any Force Majeure Event prevents Battista Hockey from performance of any of its obligations under the Agreement, Battista Hockey will have the right to
i. change, terminate or cancel the Agreement, or
ii. omit during the period of the Force Majeure Event all or any portion of the Services due to be delivered or performed during that period. If Battista Hockey is unable to supply the total demands for any Goods to be delivered or Services to be performed under the Agreement due to a Force Majeure Event, Battista Hockey will have the right to allocate its available Goods or Services among its customers in whatever manner Battista Hockey deems to be fair and equitable. In no event will Battista Hockey be obligated to purchase services or materials from other than its regular sources of supply in order to enable it to supply Services to Client under the Agreement. No change, cancellation or proration by Battista Hockey will be deemed to be a breach of any clause, provision, term, condition, or covenant of the Agreement.
27. Electronic Consent. Client acknowledges that Client’s electronic submissions constitute Client’s agreement and intent to be bound by the Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including, without limitation, the Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act"), the Pennsylvania Electronic Transactions Act, or other similar statutes, CLIENT HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, APPLICATIONS AND OTHER RECORDS AND ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED WITH BATTISTA HOCKEY. Further, Client hereby waives any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means. Client may obtain a copy of the Agreement and these Terms and Conditions of Service by printing them now at no additional cost to Client or by contacting Battista Hockey.
28. Non-Disparagement. Battista Hockey and Client agree that neither shall directly or indirectly, make or cause to be made any disparaging, denigrating, derogatory or negative, misleading or false statement orally or in writing to any person, including clients or prospective clients, competitors and advisors to the Client, its Affiliates or members of the investment community or press, about (i) the other party, its Affiliates or their respective officers, directors, stockholders, managers, members, partners, employees or agents; or (ii) the business strategy or plans, policies, practices or operations of the other party or any of its Affiliates. Client agrees that Battista Hockey may make mention that Battista Hockey provides the Goods and Services to Client on Battista Hockey’s website, in brochures, and other promotional materials.
29. Choice of Law. The Agreement and all related displays or documents and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania, United States of America (including its statutes of limitations), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Pennsylvania.
30. Mediation. Battista Hockey and Client will attempt to resolve any dispute in connection with this Agreement on an amicable basis through prompt, good faith discussions and non-binding mediation.
31. Arbitration. Any dispute that cannot be resolved by Battista Hockey and Client will be determined by final and binding arbitration in Pittsburgh, Pennsylvania, before a sole arbitrator who will award attorneys’ fees and other costs to the substantially prevailing party. JAMS will administer the arbitration. The arbitration award will be in writing and will specify the factual and legal bases for the award. Judgment on the award may be entered in any court having jurisdiction. Notwithstanding anything in this Agreement to the contrary, if either Battista Hockey or Client initiates arbitration before mediation, that party will be responsible for the other party’s attorneys’ fees and costs of arbitration.
32. Choice of Forum. In the case that mediation and arbitration prove insufficient for resolving a dispute, Battista Hockey and Client irrevocably and unconditionally agree that neither party will commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to the Agreement, and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the US District Court for the Western District of Pennsylvania or, if such court does not have subject matter jurisdiction, the courts of the Commonwealth of Pennsylvania sitting in Allegheny County, and any appellate court thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the US District Court for the Western District of Pennsylvania or, if such court does not have subject matter jurisdiction, the courts of the Commonwealth of Pennsylvania sitting in Allegheny County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
33. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
34. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in full. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to affect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
35. Binding Authority. Any director, officer, employee, representative, or agent of Client signing or otherwise entering into this Agreement hereby represents and warrants that he or she is duly authorized to execute and enter into this Agreement on behalf of Client.
LAST UPDATED: 03/04/2022