We may from time to time revise this Agreement (including by moving or deleting portions of, or adding to, the terms that govern your use of the Licensed Application). You are bound by any such revisions and should therefore periodically review the then-current version of this Agreement. If you do not agree with this Agreement, you are not authorized to use the Licensed Application and you are required to immediately cease using the Licensed Application. Your use of the Licensed Application following any changes constitutes your agreement to be bound by this Agreement, as changed. In the case of any violation of this Agreement, iStable reserves the right to seek all remedies available by law and in equity for such violations. These rules and regulations apply each time you access and use the Licensed Application, both now and in the future.
2. REPRESENTATIONS CONCERNING AGE AND JURISDICTION. If you reside in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as this Agreement according to age and you are under such age limit, you may not enter into this Agreement, download, install or use the Licensed Application. If you reside in a jurisdiction where it is forbidden by law to offer or use the Licensed Application for internet communication, you may not enter into this Agreement, download, install or use the Licensed Application. By entering into this Agreement, you represent that you have verified in your own jurisdiction that your use of the Licensed Application is permitted by law.
3. ISTABLE GRANT OF LICENSE. Subject to the terms of this Agreement, iStable hereby grants you a limited, revocable, non-exclusive, non-sublicensable and non-assignable license to use a copy of the object code of the Licensed Application on a computer or mobile device under your control, or the control of users authorized by you, for the sole purpose of using the Licensed Application. You may use the Licensed Application for your own business and/or personal purposes. Except as expressly provided in this section of this Agreement, no other license, express or implied, is granted and iStable reserves all rights in the Licensed Application.
4. USER CONTENT. You are solely responsible for all content, including data files, written text, documents, photographs, images, video and audio content that you upload, transmit, disclose, disseminate or otherwise distribute while using the Licensed Application (collectively, “User Content”). The Licensed Application may provide features that allow you to share your User Content with others. You may only share the User Content in which you have all necessary copyright and other rights.
5. USER ACCOUNTS. With the exception of people or businesses that are expressly authorized to create accounts on behalf of their employers or clients, iStable prohibits the creation of and you agree that you will not create an account for anyone other than yourself unless you are authorized to do so on behalf of your employer. You also represent that all information you provide or provided to iStable upon registration and at all other times will be true, accurate, current and complete, and you agree to update your information as necessary to maintain its truth and accuracy.
6. LICENSE LIMITATIONS. Your license to use the Licensed Application and certain data elements is subject to certain limitations. Specifically, you agree not to:
- remove, obscure, make illegible or alter any notices or indications of iStable’s intellectual property rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to any materials;
- make copies of the Licensed Application or attempt to derive the source code of the Licensed Application;
- assign, sublicense, sell, re-sell, transfer, rent, lease or otherwise distribute, provide access to, or grant rights in the Licensed Application including, without limitation, offering the Licensed Application to third parties on an application service provider, hosted, service bureau, outsourcing or time-sharing basis;
- undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Licensed Application or any part thereof;
- disable any functionality which limits the use of the Licensed Application;
- separate any parts of the Licensed Application for use on more than one computer or mobile device;
- use or exploit any portion of the Licensed Application to provide any commercial services to third parties; or
- use the Licensed Application in any manner which, in iStable’s sole discretion, interferes with its ability to offer its services.
You further agree and acknowledge, in regards to integrated data provided to Thoroughbred Customers, that;
- Certain of the data displayed in iStable was supplied by and is proprietary to The Jockey Club Information Systems, Inc. All rights reserved. Unauthorized reuse, distribution or display of this data is expressly prohibited.
- Data provided or compiled by The Jockey Club Information Systems, Inc. generally are accurate but errors and omissions occur as a result of incorrect data received from others, mistakes in processing and other causes. The Jockey Club Information Systems, Inc. shall have no liability or responsibility to you or to any other person or entity for the consequences, if any, of such errors, but would appreciate having any such errors called to their attention.
iStable reserves the right to utilize the processor and/or bandwidth of your computer or mobile device to facilitate communications between you and a third party.
7. INTELLECTUAL PROPERTY RIGHTS. As set forth in this Agreement, all rights, title and interest worldwide, including all associated intellectual property rights in and to the Licensed Application are owned by iStable or its licensors unless otherwise specified.
8. PROHIBITED BEHAVIOR. You agree to use the Licensed Application solely for your own lawful business or personal needs. You are responsible for User Content, and you shall not take any unlawful or improper actions with respect to such User Content in violation of iStable’s or any third parties’ rights or applicable laws.
You also agree not to use the Licensed Application to do any of the following (collectively, “Prohibited Behavior”):
- intercept, tap into, record, monitor, damage, alter, manipulate or modify any communication not intended for you;
- collect, store, disclose, disseminate or distribute personal data with respect to third parties except as contemplated by this Agreement and then only for the express purpose of providing lawful communication that may reasonably be anticipated by such third parties;
- upload, post, e-mail, transmit or otherwise make available any content that infringes any patent, trademark, trade secret, copyright or other intellectual property right, privacy right or publicity right of any person or entity unless you have express permission from the respective owners of such materials to do so;
- upload, post, email, or otherwise transmit, disseminate or distribute any content that is illegal, harmful, threatening, abusive, harassing, tortuous, defamatory, disparaging, vulgar, obscene, libelous, pornographic, sexually explicit, invasive of another's privacy, hateful or racially, ethnically, or otherwise offensive;
- engage in any activity that violates any local, state or federal law or regulation or the law or regulation of any foreign government;
- provide anonymity to activities which are unlawful, fraudulent, or violate the intellectual property rights of a third party;
- knowingly or recklessly permit others to use the Licensed Application: (i) for any unlawful, invasive, infringing, defamatory, or fraudulent purpose; (ii) to alter, steal, corrupt, disable, destroy, trespass or violate any security or encryption of any computer or mobile devise file, database or network; (iii) so as to materially interfere with the use of the Licensed Application by other customers or authorized users; or (iv) in a manner which, in iStable’s opinion, is inconsistent with the generally accepted rules of internet etiquette and conduct;
- transmit any unsolicited or unauthorized advertising or promotional materials, including without limitation, initiation or perpetuation of any “Spam,” “Junk Mail,” chain letters, or any other potentially objectionable or unlawful form of unsolicited communication;
- upload, post, email or otherwise transmit without authorization any material that contains private or financial information or other personally identifiable information concerning any third-party person or entity, including without limitation, phone number(s) or addresses, credit/debit cards, name, gender, calling cards, account numbers, social security numbers, driver's license numbers, dates of birth, passwords or other similar information;
- obtain or attempt to obtain service by any means or device with intent to avoid payment;
- engage in any activities that do or are designed to harass, or that will cause a denial-of-service (e.g., synchronized number sequence attacks) to any other user of the Licensed Application;
- transmit any material that contains software viruses or any other code, files or programs designed or known to disable, interrupt, or limit the functionality of any computer hardware, computer software, or telecommunications equipment or facilities;
- interfere with the use or enjoyment of the Licensed Application by other customers or authorized users. This shall include excessive use of services which impair the fair use of other customers;
- hold iStable, its suppliers, officers, directors, employees, agents, affiliates or shareholders up to public scorn, ridicule, or defamation; or
- impersonate any person or entity, or falsely stating or otherwise misrepresenting your affiliation with a person or entity.
9. THIRD PARTY SOFTWARE. The Licensed Application may be incorporated, and may incorporate itself, into software and other technology owned and controlled by third parties. Any and all other third party software or technology that may be distributed together with the Licensed Application will be subject to you explicitly accepting a license agreement with that third party as well as the terms of this Agreement. You acknowledge and agree that you will not enter into a contractual relationship with iStable or its affiliates regarding such third party software or technology and you will look solely to the applicable third party and not to iStable or its affiliates to enforce any of your rights.
11. OTHER USERS; NO OBLIGATION. You are solely responsible for your interaction with other users of the Licensed Application, whether online or offline. You agree that iStable is not responsible or liable for the conduct or content of any user. iStable reserves the right, but has no obligation, to monitor or become involved in disputes between you and other users. You agree that iStable is not responsible for, and does not endorse, User Content or content of any other user posted within the Licensed Application. iStable does not have any obligation to prescreen, monitor, edit, or remove any User Content or content of any other user. You may be exposed to content that is offensive, untrue, indecent or otherwise objectionable. iStable shall not be liable for any such communications, actions, omissions, or activities or any damage or harm directly or indirectly resulting therefrom. THE CONTENT UPLOADED, TRANSMITTED OR DISTRIBUTED THROUGH THE LICENSED APPLICATION MAY NOT BE APPROPRIATE OR SATISFACTORY FOR YOUR USE, AND YOU SHOULD VERIFY ALL CONTENT BEFORE RELYING ON IT.
If your User Content violates this Agreement, you may bear legal responsibility for that User Content.
12. SERVICE INTERRUPTIONS. Although it is iStable’s intention for the Licensed Application to be available as much as possible, there will be occasions when the Licensed Application may be interrupted, including without limitation for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment. You also acknowledge that the Internet may be subject to breaches of security and that the submission of User Content or other information may not be secure.
13. NO WARRANTY. THE LICENSED APPLICATION IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ISTABLE AND ITS LICENSORS SPECIFICALLY DISCLAIM AND EXCLUDE ANY AND ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR QUALITY AND/OR PERFORMANCE. ISTABLE DOES NOT WARRANT THAT THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE LICENSED APPLICATION’S OPERATION WILL BE ERROR-FREE OR UNINTERRUPTED, THAT THE INTERNET WILL BE AVAILABLE, THAT ALL ERRORS IN THE LICENSED APPLICATION WILL BE CORRECTED OR THAT ALL YOUR COMMUNICATION WILL BE SECURE OR DELIVERED TO YOUR RECIPIENTS, WHETHER THEY ARE YOUR INTENDED RECIPIENTS OR OTHERWISE, OR THAT THE INFORMATION (INCLUDING WITHOUT LIMITATION PERSONAL INFORMATION), CONTENT AND/OR FILES STORED AND/OR ARCHIVED IN THE LICENSED APPLICATION OR ON ISTABLE’S SERVERS WILL BE AVAILABLE, ACCESSIBLE, SECURE AND/OR ACCURATE. ISTABLE WILL NOT BE LIABLE FOR ANY OF THE FOREGOING. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE LICENSED APPLICATION REMAINS WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. Some jurisdictions do not allow the exclusions or limitations set forth above, and therefore, may not apply to you.
14. LIMITATION OF LIABILITIES. NEITHER ISTABLE NOR ANY OF ITS LICENSORS, AGENTS OR CONTRACTORS IN CONNECTION WITH THE LICENSED APPLICATION SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION FOR ANY LOSS OF DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE LICENSED APPLICATION WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU UNDERSTAND AND ACKNOWLEDGE THAT YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY DEFECT IN OR DISSATISFACTION WITH THE LICENSED APPLICATION IS TO DE-INSTALL AND CEASE TO USE THE LICENSED APPLICATION. YOU MAY HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE. IN NO EVENT SHALL ISTABLE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00).
15. PASSWORDS. To protect your personal information, access to the Licensed Application may require submission of a software license key, login and password information to create a user account. If required, the login and password are for your business and/or personal use only and are not transferable. You may not share your login or password with any other individual. You agree that you will be responsible for maintaining your password as confidential and for any activity that occurs as a result of your enabling or permitting another person or entity to use your password. You agree to immediately notify us in the event that: (i) your password is lost or stolen; or (ii) you become aware of any unauthorized use of your password or of any other breach of security related to the Licensed Application. We are not responsible for any loss or damage arising from your failure to comply with the provisions of this section.
16. SUBSCRIPTIONS. iStable charges you for the use of the application as agreed to upon the initiation of service. You also agree to any terms (such as a minimum term of service, recurring subscription fees, or payment terms) of which we notify you during your purchase of the products or services. iStable may change the rates for any products or services at any time with 30 days’ notice. You agree that by continuing to use the product or service following the adjustments of the rate(s), you accept the new rate(s).
17. NEW VERSIONS. iStable may, in its sole discretion, add features or functions or provide bug fixes, patches, updates and upgrades to the Licensed Application, which may be provided automatically. If you do not want to receive such upgrades automatically, do not use the Licensed Application.
18. ELECTRONIC COMMUNICATIONS. By using the Licensed Application, you consent to receiving electronic communications from iStable. These communications are part of your relationship with iStable and will include notices about your account and information concerning or related to iStable’s service, such as Licensed Application updates, new features, and other important information about your account or service.
20. TERMINATION. Without limiting other remedies, iStable may limit, suspend, or terminate this license and your use of the Licensed Application, prohibit access to the Licensed Application and/or the iStable website or delete your user account, with immediate effect and without any notice to you if iStable believes that you are in breach of this Agreement, infringing, violating, or misappropriating any third party’s intellectual property rights, violating a third party’s privacy or publicity rights, or engaging in fraudulent, immoral, illegal, offensive, inappropriate, indecent or otherwise objectionable activities. iStable shall effect such termination by providing notice to you at the email address you have provided, and/or by preventing your access to your user account. iStable reserves the right to cancel user accounts that have been inactive for more than six months. iStable reserves the right to discontinue all support for the Licensed Application, and/or for any features, services or content accessible through the Licensed Application. You may terminate this Agreement with or without cause. Upon termination of this Agreement by you or iStable: (i) all licenses and rights to use the Licensed Application shall immediately terminate; (ii) you will immediately cease any and all use of the Licensed Application; and (iii) you will immediately remove the Licensed Application from all hard drives, networks and other storage media and destroy all copies of the Licensed Application in your possession or under your control.
21. APPLICABLE LAWS AND VENUE. This Licensed Application and this Agreement (including without limitation the validity, construction and performance of duties related to this Agreement) will be governed by and construed in accordance with the laws of the United States of America and the laws of the State of Ohio without giving effect to any principles of conflicts of laws. Venue with respect to any dispute (not subject to arbitration as provided below) between iStable and User will rest exclusively in the state or federal courts located in Dayton, Ohio, unless such venue would deprive User of any remedy, at law or in equity, which would otherwise be available in User’s state of residence. iStable makes no representation that the Licensed Application is appropriate or available for use outside the United States, and access to it from territories where it is illegal is prohibited. If you use the Licensed Application to communicate with individuals outside the U.S., you are responsible for ensuring that such communications comply with applicable local laws, including the European Union Directive, and other privacy or other laws. You may not use or export or re-export any materials or services related to the Licensed Application or any copy or adaptation in violation of any applicable laws or regulations including without limitation U.S. export laws and regulations. If you choose to use the Licensed Application from outside the United States, you do so on your own initiative and are responsible for compliance with applicable local laws. You agree that any cause of action or claim that you may have relating to the Licensed Application must be made or instituted within one year of when the cause of action or claim accrued.
22. DISPUTE RESOLUTION. User shall first contact iStable regarding any claim or controversy arising out of or relating to this Agreement, or any breach thereof. In the event such claim or controversy cannot be resolved informally, User and iStable agree to try in good faith to settle the dispute by mediation under the Commercial Mediation Rules of the American Arbitration Association, before resorting to arbitration. Any claim or controversy arising out of or relating to this Agreement, or any breach thereof, except such claims or controversies for which injunctive relief is available, that cannot be resolved by mediation within 30 days shall be finally settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules including the Supplementary Procedures for Consumer-Related Disputes (collectively, “AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. User agrees that, by accepting this Agreement, User waives the right to bring an action relating to this Agreement or the Licensed Application as part of a class action suit. The Federal Arbitration Act shall govern the interpretation and enforcement of this provision. Unless iStable and User agree otherwise, any arbitration hearings will take place in the county (or parish) of User’s residence. If the claim or controversy is for $10,000 or less, Company agrees that User may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator(s), through a telephonic hearing or by an in-person hearing as established by the AAA Rules. If the claim or controversy exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
23. INDEMNIFICATION. You agree to defend, indemnify and hold iStable and its affiliates and all of their respective officers, directors, managers, members, shareholders, and employees harmless from and against any and all claims, damages, costs and expenses, including attorneys’ fees, arising from or related to your: (i) violation or breach of any term of this Agreement (including the scope of license and restrictions on use of the Licensed Application), or any applicable law or regulation, whether or not referenced herein, (ii) violation of any rights of any third party, (iii) use or misuse of the Licensed Application, including without limitation engaging in Prohibited Behavior, (iv) communication transmitted by the Licensed Application, including without limitation User Content, and/or (v) use and/or modification of the Licensed Application.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING IN THE RELEVANT BOX AND/OR CONTINUING TO INSTALL THE LICENSED APPLICATION, YOU CONSENT TO BE BOUND BY THIS AGREEMENT.
© Pontac Equine Technologies LLC – LAST UPDATED: October 2014