1 TERMS OF THIS AGREEMENT
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.
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.
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.
agrees to abide by the terms of equineline.com’s
2 CHARGES AND PAYMENT
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.
3 IMPROVEMENTS, MODIFICATIONS OR
(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.
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.
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
5 LIMITATION OF LIABILITY
(a) Except as
provided for in Section 6 below, neither party shall be liable for any special,
indirect, or consequential damages, including, without limitation, loss of
anticipated profits or other economic loss in connection with or arising out of
the availability, the existence, the furnishing, the functioning, or the use of
any information or any services provided for in this Agreement.
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 expressly disclaims any 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 malfunction 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 causes
beyond TJCIS’ control whether or not similar to the foregoing.
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 it 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
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) 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.
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. Customer 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.
agrees that with respect to a violation of Subsection 6(c) above or 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.
shall be responsible for all electronic communications, including account
registration and other account holder information, 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.
acknowledges that TJCIS is not 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.
(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 accessing equineline.com.
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
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
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.
Agreement represents the entire agreement between the parties hereto and
supersedes all prior representations or understandings whether written
(electronically or otherwise) or oral. .
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
(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