1. DEFINITIONS AND INTERPRETATION
"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;
"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.
2. EFFECT OF TERMS
3. NATURE OF 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.
(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;
5. MEMBER UNDERTAKINGS, REPRESENTATIONS AND WARRANTIES
- 5.1 In using the Service, Members 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 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;
- (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;
- (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.
- 5.4 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:
- (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;
(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:
- (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
- 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.
- 9.3 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
11. DISPUTE RESOLUTION
- (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.
- (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
- 13.4 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.