OF THIS AGREEMENT
(a) After acceptance by
you (“Customer”) and us (“TJCIS”) this Agreement shall become effective on the
date that Customer’s subscription for equineline.com is
activated and shall remain in full force and effect unless terminated as
provided for in either Subsection 1(b) or 1(c) below. Customer shall indicate
its acceptance of the terms and conditions contained herein by clicking below
where provided for. TJCIS shall indicate its acceptance of the terms and conditions
contained herein by activating Customer's account.
(b) Either party may
terminate this Agreement at any time upon prior written notice (whether in
hard-copy or electronic format) to the other party or as may be provided for
on-line. The terminating party shall have no liability to the other party as a
result of such termination except for any amounts then due and payable to
the provisions of Subsection 1(b), TJCIS may, at its option, terminate this
Agreement or any other service to Customer without prior communication to
Customer for a material breach of this Agreement, including, without
limitation, a violation of any provision of Section 6 below, provided, however,
that TJCIS will still be able to exercise all of its other rights and remedies
under this Agreement at law and in equity.
(d) Upon termination of
this Agreement, for any reason, Customer shall no longer have access to its
account created hereunder and any data contained therein shall no longer be
available to Customer.
(e) This Agreement may be
modified in any way by TJCIS upon posting any such modification on equineline.com.
Customer confirms acceptance of any such modifications by not closing its
account with and/or by continuing to use equineline.com.
shall be resolved in favor of this Agreement.
(a) Customer agrees to
pay all fees or charges to Customer's account in accordance with the fees,
charges, and billing terms in effect at the time a fee or charge is incurred.
Customer agrees to pay all costs (including reasonable attorney's fees and
disbursements), if any, incurred by TJCIS in collecting overdue fees from
Customer, and to pay a late charge on any overdue fees at a rate equal to the
lesser of 1.5% per month or the maximum rate allowed under applicable law.
Customer shall bear sole responsibility for the payment of any taxes imposed on
Customer's use of equineline.com by the national and/or local
jurisdictions of and within the country of Customer's use.
charges to your account hereunder, whether by credit card or otherwise, shall
be denominated in the currency of the United States of America.
amounts payable to TJCIS hereunder are exclusive of any sales or use or other
taxes or governmental charges. Customer shall be responsible for payment of all
such taxes or charges except for any taxes based solely on TJCIS’ income. If
Customer is required to pay any taxes pursuant to this Section 2(c), Customer
shall pay such taxes with no reduction or offset in the amounts payable to TJCIS
MODIFICATIONS OR DISCONTINUANCE
(a) In order to improve
the quality of equineline.com, TJCIS reserves the right to change
its rules of operation, Customer identification procedures and system
programming languages as well as enhancements to equineline.com.
(b) TJCIS reserves the
right at any time and from time to time to modify or discontinue equineline.com (or
any part thereof) with or without communicating such discontinuation to
Customer. Customer agrees that TJCIS shall not be liable to Customer or to any
third party for any modification, suspension or discontinuance of equineline.com.
(c) TJCIS reserves
the right to establish or modify its general practices and limits concerning
the use of equineline.com, including, without limitation, the
maximum number of days that data or images will be retained by equineline.com as
well as the disk space that will be allotted to Customer.
TJCIS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NONINFRINGEMENT AS TO ANY MATTER WHATSOEVER, INCLUDING,
BUT NOT LIMITED TO, THE ACCURACY OF ANY INFORMATION, PRODUCT, PROGRAM, OR
SERVICE FURNISHED HEREUNDER AND CUSTOMER SUBSCRIBES TO AND UTILIZES EQUINELINE.COM ON AN "AS
(a) EXCEPT AS PROVIDED IN
SECTION 6 BELOW, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT,
PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION LOSS OF ANTICIPATED
PROFITS OR OTHER ECONOMIC LOSS IN CONNECTION WITH OR ARISING OUT OF THE
AVAILABILITY, EXISTENCE, THE FURNISHING, THE FUNCTIONING, OR USE OF ANY
INFORMATION OR SERVICES (OR, IN ALL CASES, THE LACK OF ANY THEREOF) PROVIDED
FOR IN THIS AGREEMENT.
(b) Customer understands
and agrees that with multiple processing of complex data, and with reliance
upon information acquired from multiple sources, errors and omissions can and
do occur despite commercially reasonable efforts to avoid them, and TJCIS shall
have no responsibility or liability for any loss or any special, indirect or
consequential damages resulting to Customer or any third party from errors or
omissions in equineline.com. TJCIS SHALL NOT BE LIABLE FOR ANY LOSS
OR DAMAGE, DELAY IN PERFORMANCE OR NONPERFORMANCE CAUSED BY EQUIPMENT
MALFUNCTUION OR BREAKDOWN, INFORMATION UNAVAILABILITY, STRIKES OR OTHER LABOR
DISPUTES, RIOTS, FIRE, INSURRECTION, WAR, ACTS OF TERRORISM, FAILURE OF
CARRIERS, THE ELEMENTS, ACCIDENTS, ACTS OF GOD, OR ANY OTHER CUASES BEYOND
TJCIS’ REASONABLE CONTROL WHETHER OR NOT RELATED TO OR SIMILAR TO THE
(c) Customer agrees
to extend the limitation of liability contained in Subsections 5(a) and 5(b)
above to The Jockey Club, Equibase Company LLC, Daily Racing Form LLC and
InCompass Solutions, Inc. (f/k/a McKinnie Systems, Inc.).
(d) TJCIS shall, at its
sole option, have the right to reprocess information to correct any errors of
which it is or becomes aware.
RESPONSIBILITIES, WARRANTIES, ACKNOWLEDGEMENTS AND INDEMNIFICATION
(a) TJCIS shall provide
Customer with the ability to select a User I.D. and Password. Customer shall
maintain its User I.D. and Password in strict confidence. Customer shall be
solely responsible for the maintenance of the confidentiality of its User I.D.
and Password. Unauthorized sharing of a User I.D. and Password is prohibited.
(b) Customer understands
and agrees that all information acquired hereunder is for Customer’s personal
use. All of the information on equineline.com is proprietary
to or is licensed to TJCIS by equineline.com users or third
parties. Customer agrees not to use any robot, spider, scraper or other
automated means to access equineline.com for any purpose
without TJCIS expressly providing, in an authorized signed writing, such
permission to Customer. Additionally, Customer agrees not to: (i) take any
action that imposes, or may impose in TJCIS’ sole discretion an unreasonable or
disproportionately large load on TJCIS’ infrastructure; (ii) except as
otherwise set forth herein, copy, reproduce, modify, frame, create derivative
works from, distribute or publicly display any content (except for Customer’s
internal personal use), disseminate, distribute, or otherwise transfer or
provide access to information acquired from equineline.com without
TJCIS having first provided Customer with an authorized signed writing
expressly permitting Customer to do so; (iii) interfere or impair or attempt to
interfere or impair with the proper working or integrity of equineline.com or
any activities conducted on equineline.com; (iv) bypass measures
TJCIS may use to prevent or restrict access to equineline.com; or
(v) otherwise violate the limited scope of permission herein expressly granted.
Notwithstanding the provisions of Section 6(b)(ii) above, a link to the Pedigree
Binder flipbook created by Customer on equineline.com may be disseminated
or distributed via email, the internet and social media. These restrictions
shall survive the termination of this Agreement.
shall be able to insert images (such as photographs) onto message screens
of equineline.com and into equineline.com Pedigree Binders.
Customer represents and warrants that all such images will not infringe upon
any patent, copyright, proprietary right, trade secret, service mark, trademark
or any other intangible property rights held by any other person or legal
entity. Customer may not transmit or send scripts, spiders, automated
query programs, web crawlers, robotic programs, robots, or other similar
devices on equineline.com.
(d) Customer agrees that
with respect to any claim, demand or action alleging that a Pedigree
Binder contained errors or omissions and/or a violation of Subsection 6(c)
above or a claim arising in connection with a Customer Electronic Communication
(see, Subsection 6(k) below), Customer shall (i) indemnify TJCIS from and
against any liability, cost, loss, or expense associated therewith (ii) hold
harmless TJCIS and save TJCIS from any liability, cost, loss, or expense
associated therewith; and (iii) defend any suit or proceeding against TJCIS
that in any such case arises out of or is based on any claim, demand, or action
alleging any such violation. Additionally, Customer shall pay any and all
costs, damages, or awards of settlement, including court costs, arising out of
any such claim, demand, or action, provided that TJCIS promptly communicates
notice of the claim, demand, or action to Customer and that TJCIS allows
Customer to direct and fully participate in the defense of any settlement of
such claim, demand, or action.
(e) Customer shall be
responsible for all electronic communications, including account registration
and other account holder information, sharing or other dissemination of a link
to Pedigree Binder, email and financial and other data ("Electronic
Communications") entered through or under Customer's User I.D. and
Password. Customer authorizes TJCIS to rely upon any information TJCIS receives
from Customer's User I.D. and Password and Customer acknowledges that TJCIS
shall not, in any way, be liable as a result of TJCIS relying on any such
information provided by Customer. TJCIS will act as though any Electronic
Communications TJCIS receives under Customer's User I.D. and Password were
sent by Customer. Customer agrees to immediately notify TJCIS if Customer
becomes aware of any loss or theft or unauthorized use of Customer's User I.D.
acknowledges that TJCIS is not and shall not be responsible for notifying
Customer of any upgrades, fixes or enhancements to any Software (defined in
Subsection 6(i) below) or for any compromise or loss of data transmitted across
computer networks or telecommunications facilities, including, but not limited
to, the Internet.
(g) The security of any
data inputted by Customer may be maintained through the use of data encryption,
data security protocols, passwords and other methods that TJCIS may employ, or
that TJCIS may suggest or require that Customer employ. Customer agrees that
TJCIS has no responsibility for the deletion or failure to store any data
transmitted by Customer or anyone else to equineline.com. Customer
agrees and acknowledges that the Electronic Communications information and
other information included within a Pedigree Binder will not be treated as
confidential by TJCIS.
(h) TJCIS shall not
be obligated to delete or return Customer-inputted data upon termination of
acknowledges and agrees that equineline.com and any necessary
software, the access to which is provided by TJCIS ("Software"), used
in connection with equineline.com contain proprietary and
confidential information that is protected by applicable intellectual property
and other laws. Customer further acknowledges and agrees that content contained
in sponsor advertisements or information presented to Customer through equineline.com or
by advertisers is protected by copyrights, trademarks, service marks, patents
or other proprietary rights and laws. Customer agrees not to modify, rent,
lease, loan, sell, distribute or create derivative works based on equineline.com or
the Software in whole or in part. Customer agrees not to reproduce, duplicate,
copy, sell, resell or exploit for any commercial purposes, any portion of equineline.com,
use of equineline.com, or access to equineline.com. The
foregoing does not apply to Customer-inputted data.
grants Customer a non-transferable, non-exclusive and terminable right and
license to use the object code of the Software; provided that Customer does not
(and does not allow any third party to) copy, modify, create a derivative work
of, reverse engineer, reverse assemble, disassemble, or decompile the Software
or any part thereof or otherwise attempt to discover any source code, or sell,
assign, sublicense, grant a security interest in or otherwise transfer any
right in or to the Software. Customer agrees not to modify the Software in any
manner or form, or to use modified versions of the Software, including (without
limitation) for the purpose of obtaining unauthorized access to equineline.com.
Customer agrees not to access equineline.com by any means
other than through the interface that is provided by TJCIS for use in
(k) Customer agrees
to abide by all applicable local, state, national and foreign laws, treatises
and regulations in connection with the use of equineline.com. In
addition, and without limitation, Customer agrees not to use equineline.com (including,
without limitation, the equineline.com Pedigree Binders) to: (i) send
unsolicited or unauthorized advertising, promotional materials, junk mail,
spam, chain letters, pyramid schemes, or any other form of duplicative or
unsolicited messages, whether commercial or otherwise; (ii) harvest, collect,
gather or assemble information or data regarding other users, including email
addresses, without their consent; (iii) transmit through or post on equineline.com unlawful,
harassing, libelous, abusive, tortious, defamatory, threatening, harmful,
invasive or another's privacy, vulgar, obscene or otherwise objectionable
material of any kind or nature or which is harmful to minors in any way; (iv)
transmit any material that may infringe the intellectual property rights or
other rights of third parties, including, without limitation, trademark,
copyright or right of publicity; (v) transmit any material that contains
software viruses or other harmful or deleterious computer code, files or
programs such as trojan horses, worms, time bombs, cancelbots; (vi) interfere
with or disrupt servers or networks connected to equineline.com or violate the
regulations, policies or procedures of such networks; (vii) attempt to gain
unauthorized access to equineline.com, other accounts, computer
systems or networks connected to equineline.com, through password
mining or any other means; (viii) harass or interfere with another user's use
and enjoyment of equineline.com or (ix) post, disseminate,
distribute or otherwise transfer any material or information which TJCIS finds
objectionable in its sole and absolute discretion.
understands and agrees that TJCIS provides the capability to search and display
horse names, along with other indicative information for horses, to facilitate
the running of equineline.com products or inclusion of horses
in equineline.com subscription related services. Use of this
capability to search and display horse information for reasons other than as
provided for in this Paragraph 6(l) is prohibited and shall be considered a
material breach of this Agreement.
7 PROPRIETARY DATA
All equineline.com systems, programs, records,
statistics, data, documentation, and any other like-kind material utilized or
developed by TJCIS in connection with equineline.com,
shall be and remain the sole property of TJCIS (save for Customer-inputted data
and images which are proprietary to Customer). All rights, title to, and
interest in, including copyrights and renewals thereof, all systems,
programming, records, statistics, data, documentation, operators' manuals,
components, and accessories comprising the system furnishing the services
hereunder and provided by TJCIS shall remain the property of TJCIS or its
licensor at all times (save for Customer-inputted data and images which are
proprietary to Customer).
(a) Any assignment of this Agreement by
Customer without the prior consent of TJCIS in an authorized signed writing
shall be null and void. TJCIS may assign this Agreement to an affiliate having
the capacity and expertise to provide the services required by this Agreement.
(b) No waiver of any breach of any
provision of this Agreement shall constitute a waiver of any subsequent breach
of the same or other provisions of this Agreement, and no waiver shall be
effective unless notice of such waiver is communicated to the non-waiving party
by an authorized signed writing.
(c) This Agreement represents the entire
agreement between the parties hereto and supersedes all prior representations
or understandings whether written (electronically or otherwise) or oral. .
(d) This Agreement shall be binding upon
the parties, their successors, legal representatives, and permitted assigns.
(e) The laws of the State of Kentucky, USA,
applicable to agreements executed and performed wholly within Kentucky, shall
govern the validity, interpretation and enforcement of this Agreement. It is
expressly agreed to by and between the parties hereto and any other person or
persons seeking to utilize the services provided for hereunder, that any
lawsuit brought against TJCIS shall be commenced and adjudicated only in the
United States District Court for the Eastern District of Kentucky or in
Kentucky State courts located in Fayette County.
(f) If any provision of this Agreement or
its application is held to be invalid, illegal, or unenforceable in any
respect, the validity, legality, or enforceability of any of the other
provisions and applications herein shall not in any way be affected or impaired
and any provision held to be invalid, illegal or unenforceable shall be replace
with an enforceable provision of like intent and effect.
following provisions shall survive any termination of this Agreement: Sections
2, 5, 6, 7 and 8.