DEFINITIONS AND INTERPRETATION
“Account” means an Account established by EQUI360 to enable a User to access and use the Service, as described in clause 5 below;
“Confidential Information” means in relation to each party, all information of a confidential nature relating to the business and/or operations of that party (whether such information is disclosed in writing, orally, by visual presentation or by any other means of providing access to such information) including but not limited to any such information subsisting in any Content;
“Content” means all information, news, opinions, feedback, material, images, graphics, video, audio, multimedia output, graphs, tables, charts, statistics, reports, summaries, objects, logos, layouts, data, geo-location information, colour schemes and any other content that is accessible to the User via the Service, including any such content which is created by EQUI360based on or derived from Third-Party Content;
“Fees” means the fees and charges payable in respect of the Service;
“Force Majeure Event” means strikes, lock-outs, or other labour disputes, riots, civil disturbances, actions or inaction of governmental authorities or suppliers, epidemics, wars, embargoes, storms, floods, fires, earthquakes, acts of God or the public enemy, computer downtime, nuclear disasters, default of a service carrier or other circumstances outside the control of EQUI360;
“Intellectual Property Rights” means any and all intellectual and industrial property rights subsisting in any part of the universe in any and all media (whether now known or created in the future) including, without limitation, rights in the nature of copyright, registered design or other design right, trade mark, patent rights, circuit layout rights, trade secrets and any corresponding proprietary rights (whether registered or common law) under the laws of any jurisdiction;
“Maintenance” means any scheduled or unscheduled period whereby the Service is not available by reason of maintenance and/or upgrades to the Service;
“Service” means features and services, including, without limitation the Website, the Content and/or Third-Party Content, provided by EQUI360 from time to time via web sites, web applications and social media platforms (including the Website) and as further described in clause 3 below; and
“Third-Party Content” means content which has been sourced from or provided by third parties, including, without limitation, Users to EQUI360 which appears or is published on the Website and/or which EQUI360 uses in providing the Serviceand also includes content on websites that may be linked to or from the Website.
2. EFFECT OF TERMS
2.5 Any person who is in the business of wagering, which means, for the purposes of this clause, any person who offers and/or supplies wagering to any other person, which includes any related services and any betting activity (a “Wagering Operator”), is not entitled to be and must not be a User and must not access or use Content. A Wagering Operator any person or entity of any kind that EQUI360 deems to be a Wagering Operator and will include, without limitation, any totalizer operator, any bookmaker or any operator of a betting exchange or other facility of any kind that enables, facilitates, aids, assists, makes possible, allows, permits or supports in any way at all the making or matching of bets or wagers. Any person who becomes a User in breach of this Term or who purports to do so, shall be deemed to be engaging in fraudulent, misleading and deceptive conduct and in addition to any other liability accruing under these Terms shall be held fully responsible, liable and accountable at law and otherwise in that regard.
Users must be over the age of 18 years of age.
3. NATURE OF THE SERVICE
3.2 Users acknowledge and accept that the Service:
(a) is a content service that includes the provision of websites ( the Website, web applications and social media platforms;
(b) is intended (but not exclusively) to be an online social networking platform that allows Users to exchange and track news, information and opinions (being part of the Content available via the Service) relating to particular thoroughbreds or race horses, including their biography, race history, race results and other statistics, and to connect with Users
4. User ACCOUNTS
4.1 Users agree and undertake that when establishing and whilst maintaining an Account, the User will provide all the information required by EQUI360 to enable the User to operate and maintain the Account.
the User must ensure that all of the information the User provides to establish an Account or in updating an Account is and will be accurate, reliable, true and complete at all times;
the User must not allow any other unauthorised third party to have access to the Account or to use the Service for any reason, and will actively takes steps to prevent any unauthorised third party from doing such, the User must notify EQUI360 immediately if it becomes aware of any unauthorised use of the Account or Service;
the User will not cause or allow the Account to be leased, sold, transferred to or operated by another person, whether for money or other valuable consideration or gratuitously;
the User assumes full responsibility for maintaining the confidentiality of its Account, including any username and password required for accessing, operating or maintaining the Account;
EQUI360 is not responsible for any losses the User incurs due to informational or technical errors in the Account establishment process, and will not be liable for any loss or damage the User incurs as a result of an unauthorised person using the Account, including the use of any Account information;
5. User UNDERTAKINGS, REPRESENTATIONS AND WARRANTIES
5.1 In using the Service, Users represent, warrant and undertake as follows:
(e) not to use the Service including any Content, in breach of any legislation or regulation at all, to include, without limitation, relevant legislation and regulation concerning and governing gaming and the horse racing and horse training industries;
(f) not to use the Service in a manner that is considered unreasonable, abusive or excessive by EQUI360 or in a way that adversely affects the functionality and/or capacity of the Service;
(g) not to impersonate or pretend to be any other person, or to represent that it holds or possesses any other identity, qualification, competency, knowledge or property which it does not genuinely hold or possess;
(h) not to use the Service including any Content which in the reasonable opinion of EQUI360 might adversely affect the business or brand or reputation of EQUI360 or which might bring EQUI360 or any related entity of EQUI360 into disrepute, contempt, scandal or ridicule;
that it is their sole responsibility to exercise their own judgment and/or to obtain independent verification or advice before relying upon any Content or Third-Party Content available via the Service, including, without limitation, in circumstances where loss or damage may result, howsoever arising, and that Users must not look to EQUI360 for compensation in respect of any losses or damages, howsoever incurred, that the User incurs in reliance on any Content or Third-Party Content;
(j) that in respect of any Third-Party Content that is provided by theUser to EQUI360:
(i) all such Third-Party Content will be complete, reliable, accurate, valid and current;
(ii) all such Third-Party Content which incorporates an opinion, judgment or belief shall represent an opinion, judgment or belief (whatever the case may be) that is genuinely held by the User;
(iii) no Third-Party Content contains content which is otherwise unlawful, fraudulent, misleading or deceptive, unconscionable, defamatory, obscene or otherwise has the tendency of infringing the legal rights of a third party, including rights of confidentiality or trade secrets;
(k) the User will pay the Fees and any other monies due to EQUI360 as and when they are due;
(l) the User will comply with any Policies issued by EQUI360 from time to time;
(n) the User will not publish or reproduce any Confidential Information of EQUI360 in any form, including without limitation on or in the Service or Website or on any external websites unaffiliated with EQUI360 or in any print medium, without the prior written permission of EQUI360;
(o) it is the User’s responsibility to ensure its own compliance with all applicable laws when using the Service, and EQUI360 disclaims any responsibility and liability for the User’s compliance to the full extent permitted by law;
(p) not to use the Service as a means to facilitate a wagering gambling or other betting transaction or service either as a Wagering Operator or otherwise;
(q) not to rely on the Service in any circumstances where a reasonable person in the User’s position, having the same knowledge and information as the User at the relevant time, would not have relied on the Service due to any suspected reliability or validity issues affecting the Service (whether wholly or part thereof) for any reason; and
(r) not to violate (or attempt to violate) any security features of the Service or Website, including, without limitation by: (i) accessing content not intended for the User; (ii) attempting to probe, scan, or test the vulnerability of the Service, Website or any associated system or network, or to breach any security or authentication measures; (iii) interfering or attempting to interfere with the Service to any User, host or network or third party provider, including, without limitation, by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” “hacking”, “crashing” or “denial of service” attacks; (iv) using the Service to send unsolicited e-mail, including, without limitation, promotions or advertisements for products or services; (v) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting; or (vi) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by EQUI360, including the Intellectual Property.
5.2Users acknowledge and agree to be responsible for all losses and damages which the User incurs, howsoever incurred and whether incurred directly or indirectly, as a result of using the Service generally or Website in contravention of the matters in clause 5.1 above.
5.4 In addition to clauses 5.2 and 5.3 above, Users acknowledge and agree that if they do any acts or aid, abet, encourage or facilitate another person to do acts in contravention of the matters in clause 5.1 above, the User itself shall be liable to indemnify EQUI360 for all losses and damages which EQUI360 incurs, howsoever incurred and whether incurred directly or indirectly, including losses and damages of its officers, employees, agents, partners and other third parties who could be reasonably expected to suffer loss and damage as a result of such acts.
5.5 Users further acknowledge that the publication of Third-Party Content on the Service generally including via the Website may result in unauthorised, unintended or undisclosed third parties having access to such Third-Party Content who may use such Third-Party Content to the detriment of the User. Users agree that they must not look to EQUI360 for any compensation in respect of any loss or damage they have incurred, howsoever incurred and whether directly or indirectly incurred, as a result of the misuse of any Third-Party Content by a third party.
6. FEES & CHARGES
6.1 Users acknowledge and agree that EQUI360 may at any time introduce, charge or vary any Fees relating to the provision and use of the Service by UsersEQUI360 will provide at least one (1) month notice to Users, using of any proposed introduction or variation of any Fees in respect of the provision of the Service to Users and the User will be deemed to have accepted such Fees if it does not notify EQUI360to the contrary or cancel its Account and cease use of the Service after the relevant notice period. For the avoidance of doubt, any increase in Fees shall not apply in respect of the period for which Fees have already been paid as at the date when the increase takes effect but shall apply to any future period(s).
6.2 For the avoidance of doubt, where EQUI360 has issued a notice under clause 6.1 above and a User does not respond or otherwise take any other action which evinces its acceptance or refusal of the matters in such notice, EQUI360 may, if it deems appropriate, suspend the Users’ use of the Service, necessary, charging or debiting the Fees from the User.
6.3 In addition to the matters in clause 6.1 above, Users acknowledge and agree that:
(b) if EQUI360 requires Users to pay Fees in respect of the use of the Service, such Fees will be payable in monthly advances by direct debit unless otherwise advised by EQUI360;
(c) any paid Fees will not be refunded where the User indicates that it wishes to close or terminate the Account or cease using the Service, for whatever reason;
(d EQUI360 will not refund any Fees in the event that the User does not make use of the Service for whatever reason;
(e) EQUI360 will not refund any portion of the Fees in the event that access to the Service is temporarily suspended from operation for whatever reason;
7. WARRANTIES, DISCLAIMERS AND INDEMNITIES
7.1 Users irrevocably and unconditionally acknowledge and accept the following in using the Service or Website:
(e) that in providing the Service, EQUI360 reserves the absolute right to revise, alter, redact, modify or remove any Content and Third-Party Content without notice or liability to the User;
(f) that EQUI360 assumes that any Third-Party Content EQUI360 receives will be complete, reliable, accurate, valid and current, and that such Third-Party Content contains no content which is otherwise unlawful, fraudulent, misleading or deceptive, unconscionable, defamatory, obscene or otherwise has the tendency of infringing the legal rights of a third party or the tendency of preventing a third party from fulfilling their legal obligations, and EQUI360 shall not, to the maximum extent permitted by law, be liable in any circumstances for any loss or damage howsoever incurred by the User in relation to any such Content which incorporates Third-Party Content;
(g) In relation to Third-Party Content which are links to or from the Website or Service, EQUI360 should not be treated as having verified or endorsed the content appearing on any website (“Linked Websites”) to which such link relates and it is the sole responsibility of Users to exercise their own judgment when navigating to and/or relying on any content appearing on the Linked Websites;
(h) In relation to the Linked Websites, EQUI360 should not be construed as being affiliated, associated or being in a relationship of sponsorship with any provider, owner, manager or controlled of the Linked Websites unless otherwise notified by EQUI360, and Users must look solely to the provider, owner, manager or controlled of the Linked Websites in respect of any losses or damages incurred by the User in respect of the Linked Websites;
(i) That the use of the Service and Website may require the User to comply with various technical requirements, including any hardware, software and firmware requirements, use of modem browser technology to access the internet, an active Internet connection, the configuration of Internet browser settings or allowing the use of “cookies” or “flash” content, and it is the User’s responsibility to ensure that it complies with any and all such technical requirements, and EQUI360 shall not be liable in any way for any losses or damages suffered by the User as a result of the User failing to comply with the matters in this clause;
(j) that to the maximum extent permitted by law EQUI360 does not warrant that the Website or the Service will meet the User’s requirements or that the use of the Service will be uninterrupted or error-free including for the reason that EQUI360 may be required to perform Maintenance and because the use of the Service may depend on the availability and reliability of any computer network;
(k) that EQUI360 may provide support services intended to assist a User in using the Service (the “Support Services”), however, any Support Services shall be provided at the sole discretion of EQUI360 and it is the User’s sole responsibility to assess and review whether the Support Services are suitable for its purposes such that the User shall bear all the costs and damages it incurs by acting in reliance on the Support Services;
(m) that EQUI360 does not warrant that the Service or Website will be available for use free of technical or functional errors, including the presence of “viruses”, “Trojans”, “spyware”, “adware”, “bots” and other similarly harmful computer effects, and any losses or damages the User suffers as a result thereof, or because EQUI360 has chosen to temporarily or permanently suspend operation of the Services, or the Website, is a risk borne by the User and the User releases EQUI360 from any and all claims in respect thereof.
8. INTELLECTUAL PROPERTY
8.1 Users acknowledge and agree in respect of the Content:
(c) EQUI360 retains full and complete title and interest to the Content including all Intellectual Property Rights;
(d) the User does not acquire any right, title or interest (including any Intellectual Property Rights) in any Content under any circumstances; and
8.3 The User acknowledges and agrees that the mere access or availability of the Third-Party Content to the User in connection with the Service shall not be an inference that EQUI360 has any relationship, affiliation or association with the author of the Third-Party Content.
9.1 Each party undertakes to keep confidential any Confidential Information relating to the other and not to use such information or disclose it to any other person, other than as permitted under this clause 9.
9.3 Each party may disclose any Confidential relates to the other party to:
(a) any of its directors, employees, advisers and agents who need to know the Confidential Information;
(b) where necessary for the provision of the Services
9.4 Clause 9.1 shall not apply to the disclosure of Confidential Information:
(a) with the consent of the person to whom the information relates; or
(b) if and to the extent:
(i) required by law; or
(ii) required by any competent regulatory authority or recognised stock exchange; or
(iii) that such information is in the public domain other than through breach of this clause.
10. TERMINATION & SUSPENSION
11. DISPUTE RESOLUTION
(a) the User must first provide full details of the Dispute to EQUI360 by email to such email address as EQUI360 may designate from time to time on the Website or otherwise and by mail by registered post and allow EQUI360 a reasonable amount of time to investigate the Dispute before providing a written response; and
(b) the User shall assist and cooperate with EQUI360 during the period whenEQUI360 investigates and assesses the nature of the Dispute.
11.2 Users hereby indemnify EQUI360 for all costs associated with dealing with a Dispute if because of the User’s non-compliance with this clause 11, the User has caused EQUI360 to incur costs which it would not have incurred or has incurred to a greater extent than necessary had the User complied with this clause 11.
11.3 To the maximum extent permitted by law, the parties agree that in the event of a Dispute, the User must not commence any court or arbitration proceedings relating to the Dispute until it has complied with clause 11.1 above to attempt to resolve the Dispute.
11.4 Nothing in this clause 11 prejudices the right of either party to seek urgent injunctive, interlocutory or declaratory relief from a court in connection with the Dispute without first having to attempt to resolve the Dispute in accordance with clause 11.1 above.
(a) if sent by mail (postage prepaid), 3 business days after posting within Ireland to an Irish address or 12 business days after posting by airmail in any other case; and
() if sent by email, at the time indicated on the sender’s email outbox unless the recipient promptly informs the sender that the Notice was incomplete or not properly received, provided that if a Notice to EQUI360 is received by EQUI360 after 5.00pm or on a is not a business day, it will be deemed to have been received by EQUI360 on the next business day.
12.2 Users acknowledge that EQUI360 shall be entitled to issue notices in relation to matters relating to the Service by any of the means described in section 12.1 above and/or by means of notices sent via the Service and, in the latter case, such notices will be deemed to have been received at the time of sending.
13. MISCELLANEOUS MATTERS
13.4 A single or partial exercise or waiver of a right by a party does not preclude any other or further exercise of that right or the exercise of any other right.