Athletic Intelligence Measures , LLC & Client Terms and Conditions

1. AIM Services

Subject to the terms and conditions set forth herein, during the Term, defined below, AIM shall provide the services to the Client as described on the Price Quote hereto and made a part hereof (“AIM Services”), including preparing and providing various reports generated by the AIQ™ (“AIM Reports”). The AIM Services shall be performed at the times and locations as set forth in the Price Quote or as otherwise coordinated between the Parties.

AIM may provide additional services requested by the Client that are not specifically set forth on the Price Quote on terms and consideration agreed to by the Parties, and upon such agreement, the additional services shall be deemed AIM Services hereunder.


2. Fees

As consideration for the AIM Services rendered hereunder, the Client shall pay AIM those amounts set forth on the Price Quote together with costs and expenses incurred relating to the AIM Services, including, but not limited to, travel costs, costs of equipment, and supplies, (collectively, “Fees”). AIM shall, from time to time, provide the Client with invoices for the Fees and outlining the AIM Services rendered, and unless provided otherwise in the Price Quote, all Fees shall be due and payable within thirty (30) days thereafter. AIM shall be responsible for, and the Client shall not withhold from the Fees, any taxes, social security, or other withholdings and deductions. In the event any Fees are not paid in full within thirty (30) days of the receipt, the Client shall pay AIM a late fee equal to five percent (5.00%) per month on such unpaid Fees, in addition to AIM’s other rights and remedies as set forth herein.


3. Subcontractor

Assignment. AIM shall be permitted to engage any person or entity as a subcontractor, agent, or affiliate to perform all or any part of the AIM Services set forth herein, and may assign its rights and obligations hereunder to a subcontractor, agent, or affiliate upon notice thereof to the Client.


4. Term. 

The term of this Agreement (“Term”) shall commence as provided in the Price Quote.


5. Working Arrangements

The Client shall provide the following to AIM: (a) reasonable access to the Client’s athletes, coaches, and personnel, and a suitable location to perform the AIM Services; and (b) timely assistance to correct any problems that materially affect the performance of the AIM Services. The Parties shall promptly communicate to each other any issues or concerns at the time they arise or as soon thereafter as is reasonable under the

Circumstances.


6. Confidentiality; Ownership; Exclusivity

Provided the Client is not in breach or default hereunder, the Client shall own the work product (“Team Reports”). Notwithstanding the foregoing, the information contained in such AIM Reports shall become part of the AIM Information, defined below, included in its database and the AIQ™. The Client shall keep confidential and shall not disclose, reverse engineer, or recreate the AIM Information, including any AIM Report, and shall use the AIM Reports and information provided to the Client by AIM only for its own talent identification, selection, and optimization programs.

  The Parties acknowledge and agree that AIM owns (a) all information and data it uses, generates, and obtains in its business, including, but not limited to, the AIQ™ and its database, and all tradenames, trademarks, services marks, trade secrets, copyrights, and patents, and all intellectual property arising therefrom or relating thereto, and (b) all reports and data created, compiled, or generated by AIM in connection with providing the AIM Services, including the information in the AIM Reports, which data shall be added to and become part of the AIQ™ (“Collectively, “AIM Information”). The Parties acknowledge and agree that the AIQ™, including its database, constitutes trade secrets as defined by applicable Arizona and federal law.

If, without AIM’s consent, during the term of this Agreement or for twelve months thereafter, the Client directly or indirectly retains the services (whether as an employee, independent contractor, or otherwise) of any employee of AIM (or ex-employee within six months of the end of employee’s employment with AIM) who has provided services to the Client on behalf of AIM, the Client agrees that AIM will be significantly damaged, but that the amount of this damage will be difficult to determine. Accordingly, the Client agrees that for each such

employee retained by the Client without AIM’s consent, the Client will pay to AIM Two Hundred Fifty Thousand and no/100 Dollars ($250,000.00) as liquidated damages, and not as a penalty, in light of the Parties’ expectations, risks, and expenditures. Notwithstanding the foregoing, for the purposes of this Section, an “employee (or ex-employee) of AIM” shall include only employees of AIM who provided services to AIM clients.


7. Independent Contractor

AIM is an independent contractor and nothing in this Agreement shall be construed as creating an employment relationship, agency, partnership, or joint venture between the Parties. AIM shall have total control over the means and manner of providing the AIM Services, and shall direct the methods by which it performs the same. Neither Party is  authorized to act on behalf of the other in any matter whatsoever.


8. Default; Limitation of Liability

In the event a Party materially breaches or defaults under this Agreement, the other Party shall provide written notice thereof with sufficient detail as to allow the breaching Party to cure. In the event AIM fails to cure such material breach within ten (10) days after receipt of the notice, the Client may terminate this Agreement on five (5) days’ notice, and if it elects to do so, such termination shall be its sole and exclusive right and remedy. In the event the Client elects not to terminate this Agreement, the Parties acknowledge that as part of negotiating the specific Fees set forth above, they have agreed that the maximum amount AIM shall be liable for as a result of a breach or default, inclusive of attorney’s fees, costs of suit, and other damages, shall not exceed the amount of Fees previously paid by the Client to AIM. The foregoing limitation of AIM’s liability hereunder are liquidated damages and are intended (i) to reflect the fact that actual damages may be difficult and impractical to ascertain; (ii) to allocate risk among AIM and the Client, and (iii) to enable AIM to perform the AIM Services at the stated Fees.

In the event the Client breaches or defaults under this Agreement, including failure to pay Fees when due, AIM may elect to terminate this Agreement or suspend providing the AIM Services until all Fees and other amounts due hereunder have been paid. In addition, AIM may terminate this Agreement immediately in the event it is unable, for any reason, to provide the AIM Services. Upon any termination of this Agreement, AIM shall be entitled to payment of Fees for any AIM Services rendered prior to the effective date of such termination. In addition, in the event the Client terminates this Agreement for any reason other than an uncured AIM default as provided above or in the event AIM terminates this Agreement as a result of a breach or default by the Client, AIM shall be entitled to all Fees for AIM Services rendered prior to the termination, and all Fees that would have been earned through the natural expiration of the Agreement, the Parties acknowledging that AIM is expending and diverting considerable time and resources to the Client in order to provide the AIM Services. Neither Party shall be liable for special, indirect, consequential, exemplary, punitive damages, or, except as provided in the immediately preceding sentence, lost profits.


9. Miscellaneous

Each Party represents and warrants to the other that: (a) it has the right to enter into this Agreement, to grant the rights set forth in this Agreement, and to perform fully all of the AIM Services and obligations contemplated by this Agreement; (b) no additional consent of any other person, board of directors, or entity is necessary for it to enter into and fully perform this Agreement; (c) the Parties have reviewed this Agreement with their respective legal counsel to the Party’s satisfaction or voluntarily waived their right to do so. The Parties acknowledge that time is of the essence for each and every obligation arising hereunder. In the event either Party brings any action for any nature, whether in equity or at law, arising under or out of this Agreement or on account of any breach or default hereof, the prevailing Party shall be entitled to receive from the other Party its reasonable attorneys’ fees, and other costs and expenses relating thereto except as expressly limited in Section 8 above. If any provision of this Agreement or the application thereof to any Party shall in any way be held in invalid or unenforceable, the remaining provisions of this Agreement, shall not be affected thereby, and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable laws. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, successors, and permitted assigns. Neither Party may assign this Agreement without the consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed. This Agreement shall be construed, interpreted, and enforced in accordance with the laws of the State of Arizona, both statutory and decisional, and venue for any action hereunder shall be Pima County, Arizona, each Party hereby agreeing that it is subject to such courts’ jurisdiction. This Agreement may not be amended, modified, supplemented, or altered except by an instrument in writing executed by both of the Parties hereto. The captions of sections and paragraphs hereof are for reference and convenience only and shall not be deemed to limit, construe or affect the meaning of such sections or paragraphs.

This Agreement contains all of the agreements and understandings between the Parties hereto with respect to the subject matter hereof, and no representations, covenants, agreements, or commitments have been made to, or relied upon by, either of the Parties hereto which are not specifically set forth herein. This Agreement may be executed in several counterparts and by electronic or PDF signature, each of which shall be an original, but all of which shall constitute one and the same instrument. Neither Party intends, in any manner whatsoever, to create an interest or beneficiary in any third party. All notices will be in writing and delivered to the addresses set forth above or at such other addresses as either Party specifies in writing. Notices will be deemed effectively given: (a) upon two (2) days after being sent by certified or registered mail, postage prepaid, return receipt requested; (b) upon the next business day after being sent overnight by a major U.S. overnight document courier; or (c) upon receipt of confirmation following transmission via facsimile or email if sent on a business day during business hours (otherwise, deemed received six (6) hours after the beginning of the next business day) if followed by a hard copy sent by mail using one of the delivery methods in (a) or (b) above. Failure of either Party to insist upon strict performance of this Agreement, or to exercise any option herein, shall not be construed as a modification or waiver of any provision, right, or obligation under this Agreement.