1 TERMS 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 TJCIS.
(c) Notwithstanding 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.
(f) Customer agrees to abide by the terms of equineline.com's Terms of Use agreement. Any conflict between such Terms of Use and this Agreement shall be resolved in favor of this Agreement.
2 CHARGES AND PAYMENT
(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.
(b) All charges to your account hereunder, whether by credit card or otherwise, shall be denominated in the currency of the United States of America.
(c) The 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 hereunder.
3 IMPROVEMENTS,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.
4 NO WARRANTY
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 IS" BASIS.
5 LIMITATION OF LIABILITY
(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 FOREGOING.
(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.
6 CUSTOMER'S 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.
(c) Customer 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. and Password.
(f) Customer 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 Customer's account.
(i) Customer 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.
(j) TJCIS 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 accessing equineline.com.
(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.
(l) Customer 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).
8 MISCELLANEOUS
(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.
(g) The following provisions shall survive any termination of this Agreement: Sections 2, 5, 6, 7 and 8.
