Terms of Use

The following terms and conditions (the "Terms of Use") relate to the online platform operated by Eaglesite Ltd) called "Muddy" athttp://www.Muddy.com (the "Website") which provides a range of services and information relating to thoroughbreds (and related matters) and allows users to access various features and services offered via the Website (the "Service" as further defined below).

Use of the Service and maintenance of an Account is governed by these Terms of Use and the Terms of Use must be accepted prior to first use of the Service. These Terms of Use include and incorporate any other Policies (as defined below) issued by Muddy from time to time.


1. DEFINITIONS AND INTERPRETATION


1.1 Definitions

In these Terms of Use, unless the context otherwise requires or permits:

"Account" means an Account established by Muddy to enable a Member 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 Member via the Service, including any such content which is created by Muddy based on or derived from Third-Party Content;

"Fees" means fees and charges payable in respect of the Service;

"Force Majeure Event" means strikes, lock-outs, or other labour disputes, riots, civil disturbance, 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 Muddy;

"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;

"Member" means a person or entity who agrees to these Terms of Use and includes any employee of such person or entity, and any person who that person or entity allows to use the Service and anyone deemed to be a relevant Member of the Service described in clause 2.

"Policies" means any rules, policies and other guidelines, including the Privacy Policy, issued by Muddy from time to time, which concerns the use of the Service;

"Privacy Policy" means the policy issued by Muddy from time to time that is expressed to govern how Muddy collects, uses and discloses information;

"Service" means features and services, including, without limitation the Website, the Content and/or Third-Party Content, provided by Muddy 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, Members to Muddy which appears or is published on the Website and/or which Muddy uses in providing the Service and also includes content on websites that may be linked to or from the Website.

1.2 Interpretation

In these Terms of Use, unless expressly stated otherwise or the context otherwise requires, references to these Terms of Use shall include a reference to the Policies and references to any legislation or legislative provision will include modifying, consolidating, or replacing legislation or legislative provisions and references to a statute will include all regulations, proclamations, ordinances and by-laws issued under that statute.

In these Terms of Use, references to the words "including" and "includes" and similar words are not words of limitation, references to a person includes any other entity recognised by law and references to a singular include the plural and vice versa. Headings are included for convenience and ease of reference only and do not affect interpretation of these Terms.


2. EFFECT OF TERMS


  • 2.1 Muddy provides the Service solely in accordance with the Terms of Use and Member acknowledges and warrants that the Member has read and understood the Terms of Use.
  • 2.2 Members acknowledge that if there is any conflict between the terms and conditions in these Terms of Use and any Policies, these Terms of Use will prevail to the extent of any inconsistency.
  • 2.3 Members acknowledge that Muddy may, from time to time at its sole and absolute discretion, revise the Terms of Use (including the Policies). Muddy will post a notice on the Website whenever it revises the Terms of Use ("Notice of Change"). Members agree that by continuing to use the Service following the Notice of Change, the Member shall be deemed to have accepted any such revision. It is the Member's responsibility to review the Terms of Use periodically and if at any time the Member finds any revision to the Terms of Use to be unacceptable, in whole or in part, the Member should not continue to use the Service and must take steps to cancel its Account, including by providing notice to Muddy of such an intention.
  • 2.4 If the Terms of Use are revised pursuant to clause 2.3 above, Members acknowledge and accept that:
    • (a) the matters disclosed in any revised Terms of Use shall prevail to the extent that they are inconsistent with any matters in the previously accepted version of the Terms of Use before the revision; and
    • (b) all references in these Terms of Use shall be read as referring to the most recent version of the Terms of Use which the Member has accepted or is deemed to have accepted upon Account to the Service or pursuant to clause 2.3 above
    • (c) Notwithstanding, and in addition to, any other term or conditions of these Terms of Use, Muddy unconditionally reserves the right to refuse, cancel, terminate or suspend a Member or any person purporting to be entitled to be or become a Member, or to the benefits of or associated with Membership, for any reason or reasons whatsoever and at any time, and Muddy shall not be liable for any loss, damage or expense howsoever incurred in respect of the exercise of that right.

3. NATURE OF THE SERVICE


  • 3.1 Subject to payment of any Fees (see clause 6 below), access to and use of the Service is provided by Muddy, to our members, in accordance with these Terms of Use. Muddy retains the sole and absolute right to terminate any Account and prevent any access and use of the Service if Muddy determines at its sole discretion that such termination or prevention is appropriate for any reason. Muddy shall not be liable to our members for any loss or damage incurred by anyone, howsoever incurred, as a result of the termination of any Account or the prevention of access to the Service.
  • 3.2 Members acknowledge and accept that the Service:
    • (a) is a content service that includes the provision of websites (Including the Website), web applications and social media platforms;
    • (b) is intended (but not exclusively) to be an online social networking platform that allows Members 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 Members.

4. MEMBER ACCOUNTS


  • 4.1 Members agree and undertake that when establishing and whilst maintaining an Account, the Member will provide all the information required by Muddy to enable the Member to operate and maintain the Account.
  • 4.2 By subscribing to the Service and establishing an Account, the Member irrevocably and unconditionally agrees to abide by the terms and conditions of the Terms of Use and acknowledges and agrees that:
    • (a) the Member must ensure that all of the information the Member provides to establish an Account or in updating an Account is and will be accurate, reliable, true and complete at all times;
    • (b) the Member 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 Member must notify Muddy immediately if it becomes aware of any unauthorised use of the Account or Service;
    • (c) the Member 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;
    • (d) the Member assumes full responsibility for maintaining the confidentiality of its Account, including any username and password required for accessing, operating or maintaining the Account;
    • (e) Muddy is not responsible for any losses the Member incurs due to informational or technical errors in the Account establishment process, and will not be liable for any loss or damage the Member incurs as a result of an unauthorised person using the Account, including the use of any Account information;
    • (f) Muddy reserves the right to edit or delete any Account information, including material related or uploaded to an Account, without notice and liability to the Member, in the event that any such information, as determined by Muddy in its sole and absolute discretion, violates the Terms of Use, or if Muddy deems it is appropriate to edit or delete such material pending investigation of any such violation; and
    • (g) Muddy reserves the right to suspend or terminate any Account, without notice and liability to any Member, in the event that the Member to which the Account relates has violated or threatens to violate the Terms of Use in any respect, as determined by Muddy at its sole and absolute discretion, or if Muddy deems it appropriate pending investigation of any such violation or threatened violation

5. MEMBER UNDERTAKINGS, REPRESENTATIONS AND WARRANTIES


  • 5.1 In using the Service, Members represent, warrant and undertake as follows:
    • (a) they have read and understood the content of the Terms of Use and accepts that it comprises a binding, legal agreement between the Member and Muddy and governs the Member's use of the Service;
    • (b) if the Member is an individual - the Member is at least 18 years of age and there is no reason he/she is aware of in law that prevents the Member from accepting or performing its obligations in these Terms of Use;
    • (c) if the Member is a company or other corporate entity or government agency - the Member has all the necessary rights and powers to enter into the Terms of Use, and there is no reason the Member is aware of in law that prevents the Member from accepting or performing its obligations in the Terms of Use;
    • (d) not to use the Service, including any Content and Third-Party Content, for any purpose that is contrary to that which Muddy intends the Service to be used, as disclosed in the Terms of Use, or for any purpose that Muddy regards as unlawful, fraudulent, misleading or deceptive, unconscionable, defamatory, obscene, harassing or otherwise has the effect or result or likelihood of infringing the legal rights of a third party or preventing a third party from fulfilling their legal obligations;
    • (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 Muddy 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 Muddy might adversely affect the business or brand or reputation of Muddy or which might bring Muddy or any related entity of Muddy into disrepute, contempt, scandal or ridicule;
    • (I) 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 Members must not look to Muddy for compensation in respect of any losses or damages, howsoever incurred, that the Member incurs in reliance on any Content or Third-Party Content;
    • (j) that in respect of any Third-Party Content that is provided by the Member to Muddy:
      • (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 Member;
      • (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;
      • (iv) the Member warrants that the Member is able to confer a royalty-free unconditional licence to Muddy to use that Third-Party Content in accordance with the Terms of Use and accepts that by virtue of this clause, the Member shall confer a royalty-free unconditional licence to Muddy to use that Third-Party Content in accordance with the Terms of Use;
    • (k) the Member will pay the Fees and any other monies due to Muddy as and when they are due;
    • (l) the Member will comply with any Policies issued by Muddy from time to time;
    • (m) the Member will not sell, transfer, assign, sub-licence or charge any right or licence hereunder to a third party and will comply with any other terms and conditions in relation to the Licence as set out in the Terms of Use;
    • (n) the Member will not publish or reproduce any Confidential Information of Muddy in any form, including without limitation on or in the Service or Website or on any external websites unaffiliated with Muddy or in any print medium, without the prior written permission of Muddy;
    • (o) it is the Member's responsibility to ensure its own compliance with all applicable laws when using the Service, and Muddy disclaims any responsibility and liability for the Member'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 use the Service as a means to generate profits or revenue in respect of a commercial endeavour;
    • (r) not to rely on the Service in any circumstances where a reasonable person in the Member's position, having the same knowledge and information as the Member 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
    • (s) 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 Member; (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 Member, 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 Muddy, including the Intellectual Property.
  • 5.2 Members acknowledge and agree to be responsible for all losses and damages which the Member 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.
  • 5.3 As a members you hereby indemnify Muddy against all proceedings, loss, damage, costs, claims and expenses caused by or arising out of any infringement or breach of the representations and warranties set out in clause 5.1 above or that arises under clause 5.2 above, or any other breach by Member of these Terms of Use, 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
  • 5.4 In addition to clauses 5.2 and 5.3 above, Members 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 Member itself shall be liable to indemnify Muddy for all losses and damages which Muddy 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 Members 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 Member. Members agree that they must not look to Muddy 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.

7. WARRANTIES, DISCLAIMERS AND INDEMNITIES


  • 7.1 Members irrevocably and unconditionally acknowledge and accept the following in using the Service or Website:
    • (a) that Muddy provides the Service and Website on a purely 'as is' basis without warranty of any kind and, to the maximum extent permitted by law, Muddy expressly disclaims any and all liability and any warranties or guarantees, express or implied, regarding the Service and/or Website, including, but not limited to, any implied warranties or guarantees of acceptable quality, fitness for a particular purpose or non-infringement of third party rights not otherwise disclosed in the Terms of Use;
    • (b) that to the maximum extent permitted by law, Muddy shall not be liable in any circumstances for any loss or damage howsoever incurred by a Member as a result of the Member using or relying upon the Service in a manner contrary to these Terms of Use;
    • (c) that to the maximum extent permitted by law, Muddy shall not be liable in any circumstances for any loss or damage howsoever incurred by a Member as a result of the Member's use of the Service for any commercial purposes, including use of the Service in the course of providing commercial services to a third party for consideration, and the Member shall not represent to any third party that the Service has any features, capabilities or otherwise operates at a level contrary to the Terms of Use;
    • (d) Unless expressly notified otherwise, Muddy makes no warranties or representations as to the completeness, reliability, accuracy, validity or currency of any Content, including any Content which incorporates Third-Party Content, and the Member bears all losses and damages suffered as a result of acting in reliance on any Content to the extent beyond which the Service is intended as disclosed by the Terms of Use;
    • (e) that in providing the Service, Muddy reserves the absolute right to revise, alter, redact, modify or remove any Content and Third-Party Content without notice or liability to the Member;
    • (f) that Muddy assumes that any Third-Party Content Muddy 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 Muddy shall not, to the maximum extent permitted by law, be liable in any circumstances for any loss or damage howsoever incurred by the Member 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, Muddy 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 Members 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, Muddy 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 Muddy, and Members must look solely to the provider, owner, manager or controlled of the Linked Websites in respect of any losses or damages incurred by the Member in respect of the Linked Websites;
    • (i) that use of the Service and Website may require the Member 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 Member's responsibility to ensure that it complies with any and all such technical requirements, and Muddy shall not be liable in any way for any losses or damages suffered by the Member as a result of the Member failing to comply with the matters in this clause;
    • (j) that to the maximum extent permitted by law Muddy does not warrant that the Website or the Service will meet the Member's requirements or that the use of the Service will be uninterrupted or error-free including for the reason that Muddymay be required to perform Maintenance and because use of the Service may depend on the availability and reliability of any computer network;
    • (k) that Muddy may provide support services intended to assist a Member in using the Service (the "Support Services" ), however, any Support Services shall be provided at the sole discretion of Muddy and it is the Member's sole responsibility to assess and review whether the Support Services are suitable for its purposes such that the Member shall bear all the costs and damages it incurs by acting in reliance on the Support Services;
    • (l) that to the maximum extent permitted by law, Muddy is not responsible for any inability or delay in providing the Service for any reason which is outside Muddy's immediate control, including the occurrence of a Force Majeure Event, interruption to any telecommunications or data network or any prevention or compulsion by law which was reasonably unforeseeable at the time the Member subscribed to the Service, and to the extent such inability or delay is attributable solely to the acts or omissions of the Member (including causes attributable to a Compatible Device or any electronics device required to operate a Compatible Device), Muddy shall not be taken to have breached the Terms of Use in respect of such inability or delay; and
    • (m) that Muddy 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 Member suffers as a result thereof, or because Muddy has chosen to temporarily or permanently suspend operation of the Services, or the Website, is a risk borne by the Member and the Member releases Muddy from any and all claims in respect thereof.

8. INTELLECTUAL PROPERTY


  • 8.1 Members acknowledge and agree in respect of the Content:
    • (a) all Content is made available for use by the Member on a limited, non-transferable and non-exclusive licence from Muddy for the purpose of enabling the Member to enjoy the benefits of the Service in accordance with the Terms of Use;
    • (b) the Member will only use the Content in connection with the intended purpose and use of the Service as disclosed in these Terms of Use;
    • (c) Muddy retains full and complete title and interest to the Content including all Intellectual Property Rights;
    • (d) the Member does not acquire any right, title or interest (including any Intellectual Property Rights) in any Content under any circumstances; and
    • (e) the Member must not copy, license, sell, distribute, communicate to the public, store or reproduce the Content by any means other than as expressly allowed pursuant to the Terms of Use.
  • 8.2 Members acknowledge and agree that Muddy does not purport to confer on the Member any right, title or interest in any Third-Party Content greater than that which is necessary for the provision of the Service by Muddy to the Member, nor does Muddy purport to possess any right, title or interest in any such Third-Party Content greater than that which Muddy otherwise possesses under the Terms of Use or under the general law.
  • 8.3 The Member acknowledges and agrees that the mere access or availability of the Third-Party Content to the Member in connection with the Service shall not be an inference that Muddy has any relationship, affiliation or association with the author of the Third-Party Content.

9. CONFIDENTIALITY


  • 9.1 Each party undertakes to keep confidential any Confidential Information relating to the other party that it obtains under or in connection with the Terms of Use and not to use such information or disclose it to any other person, other than as permitted under this clause 9.
  • 9.2 The restriction contained in this clause 9 shall continue to apply for the term of the Terms of Use and for a period of 3 years after the expiry or termination of the Terms of Use.
  • 9.3 Each party may disclose any Confidential Information, which relates to the other party to:
    • (a) any of its directors, employees, advisers and agents who need to know the Confidential Information;
    • (b) to any subcontractor or related entity of Muddy 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


  • 10.1 If at any time a Member intends to withdraw from the Service and terminate the Terms of Use, it must give notice of such to Muddy and/or utilise any feature on the Service conducive to such withdrawal and termination. For the avoidance of doubt, the Member may communicate its notice in this clause 10.1 in any manner allowed by Muddy for receiving notices. Furthermore, the Member must take immediate steps to cease using the Service and close its Account. The Member shall not be entitled to a refund of any Fees paid to Muddy if the Member exercises the right in this clause 10.1.
  • 10.2 Members acknowledge and accept that Muddy may terminate or suspend the provision of the Service to a Member, including the cancellation of the Member's Account and/or the prevention of the Member from accessing the Service, if the Member breaches any term or condition of the Terms of Use, including any of the warranties and undertakings set out in this Terms of use, or in the event that Muddy suspects that the Member has or might breach any term or condition of the Terms of Use, or any Member is using Services contrary to these Terms of Use. In the event that Muddy exercises its rights under this clause 10.2, the Member is not entitled to recover from Muddy any compensation (including the refund of any Fees paid) or other remedy in respect of any loss or damage (however so arising), which the Member incurs as a result thereof.
  • 10.3 Members acknowledge and accept that should its use of the Service be terminated in accordance with clause 10.2 above or pursuant to any other right Muddy may have under the general law or pursuant to this Terms of Use, it must not subscribe for another Account or continue to use the Service and such termination shall be deemed to terminate the Terms of Use. For the avoidance of doubt, this obligation in this clause 10.3 survives the termination of the Terms of Use.
  • 10.4 In the event of the occurrence of any Force Majeure Event, the time for performance required by a party under this Terms of Use will be extended for any period during which performance is prevented by the Force Majeure Event.
  • 10.5 Members acknowledge and accept that Muddy's rights under this clause 10 are in addition to any other rights of termination or suspension it may have in the Terms of Use and under the general law, and the exercise of those rights by Muddy shall not be a bar to prevent Muddy from claiming any losses or damages Muddy has suffered, howsoever arising, as a result of the Member's breach of the Terms of Use (whether or not such claim arises pursuant to the Terms of Use or under the general law).
  • 10.6The parties acknowledge and agree that notwithstanding anything in the Terms of Use that regulates the termination or suspension the provision of the Services, any rights, obligations and liabilities that have accrued under the Terms of Use prior to the termination or suspension shall remain unaffected.

11. DISPUTE RESOLUTION


  • 11.1 In the event that a Member feels that a dispute, controversy or claim ("Dispute"), arising out of or in connection with the Service or the Terms of Use, including any question regarding its existence, validity or termination, has arisen, the Member must comply with the following complaint procedure before commencing any legal proceedings or seeking any other remedy against Muddy:
    • (a) the Member must first provide full details of the Dispute to Muddy by email to such email address as Muddy may designate from time to time on the Website or otherwise and by mail by registered post and allow Muddy a reasonable amount of time to investigate the Dispute before providing a written response; and
    • (b) the Member shall assist and cooperate with Muddy during the period when Muddy investigates and assesses the nature of the Dispute.
  • 11.2Members hereby indemnify Muddy for all costs associated with dealing with a Dispute if because of the Member's non-compliance with this clause 11, the Member has caused Muddy to incur costs which it would not have incurred or has incurred to a greater extent than necessary had the Member 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 Member 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.

12. NOTICES


  • 12.1 Subject to section 12.2 below, all notices, demands, consents or other communications required or permitted to be given under the Terms of Use must be in writing and signed by an authorised signatory ("Notice") and given by personal service, mail (postage prepaid), by email to the other party's email address (such email address to be the email address the Member provides in the Account) or to be given by such other method as a party may designate to the other party by written notice. A Notice is deemed to be received:
    • (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
    • (b) 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 Muddy is received by Muddy after 5.00pm or on a day, which is not a business day, it will be deemed to have been received by Muddy on the next business day.
  • 12.2 Members acknowledge that Muddy 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


  • 13.1 If, for whatever reason, a court of competent jurisdiction finds any term or condition in the Terms of Use to be unenforceable, all other terms and conditions will remain unaffected and in full force and effect.
  • 13.2 Muddy shall not be taken to waive the enforcement of any of its rights, whether for past, future or continuing breaches, under the Terms of Use unless made in writing and signed by an authorised representative of Muddy and is only effective in the specific instance and for the specific purpose for which it is given.
  • 13.3 Any failure or delay by one party to compel performance by another party of any of the terms and conditions of the Terms of Use does not constitute a waiver of those terms or conditions, nor does it affect or impair the right of the first party to enforce them against the other party at a later time or to pursue remedies it may have for any subsequent breach of those terms or conditions.
  • 13.4 A single or partial exercise or waiver of a right by a party does not preclude another or further exercise of that right or the exercise of any other right.
  • 13.5 The Terms of Use constitute the entire agreement between the parties in relation to its subject matter, and replace and extinguish all prior agreements, draft agreements, arrangements, undertakings or collateral contracts of any nature made by the parties, whether oral or written, in relation to such subject matter.
  • 13.6 Each party acknowledges that in entering into the Terms of Use it is not relying on, and shall have no rights or remedies (whether in tort, under statute or otherwise) in respect of any statements, collateral or other warranties, assurances, undertakings or representations (whether innocently or negligently made) by the other party to the Terms of Use.
  • 13.7 Nothing in the Terms of Use shall exclude or restrict the liability of either party arising out of fraud, fraudulent misrepresentation or fraudulent concealment.
  • 13.8 In the event there is any inconsistency between the Terms of Use and any other information appearing on the Website, or any other material accessible, available or observable on the Website and published by Muddy (including any "FAQs"), then subject to clause 2.2 of these Terms, the Terms of Use shall prevail.
  • 13.9 A Member may not assign, dispose of or otherwise transfer the Terms of Use or any rights or obligations under the Terms of Use without the prior written permission of Muddy. To the maximum extent permitted by law, Muddy may freely assign, dispose of or otherwise transfer the Terms of Use or all or any part or parts of its rights to any third party, and in the event of such assignment or transfer the Member undertakes to fulfil all of its obligations under the Terms of Use to such assignee or transferee.
  • 13.10 The Terms of Use shall be construed in accordance with and governed by the laws of the Rep of Ireland, the Courts of which shall have jurisdiction in respect of disputes arising out of or related to the use of the Service, the Website or the Terms of Use.