Website Terms and Conditions
Last updated: October 3, 2013
1.1 Governing Agreement. These Website Terms and Conditions (“Terms”) constitute the agreement, and govern the relationship, between you and the owners of www.ownerview.com, The Jockey Club Information Systems, Inc. and Thoroughbred Owners and Breeders’ Association, Inc. (“Our”” or “Us” or “We”) regarding your use of the website located at www.ownerview.com (“OwnerView”) and related services, including but not limited to “OwnerView Host” services and consultations whether via the website, via telephone or in person (collectively, information and services provided through OwnerView and related services are hereinafter referred to as the “Service”). With respect to these Terms, “Owners” or “Us” or “We” means The Jockey Club Information Systems, Inc., located at 821 Corporate Drive, Lexington, Kentucky, 40503 (“TJCIS”) and Thoroughbred Owners and Breeders Association, Inc., located at 3101 Beaumont Centre Circle, Suite 110, Lexington, KY 40513-1887 (“TOBA”). “Owners” includes The Jockey Club Information Systems, Inc.’s and Thoroughbred Owners and Breeders Association, Inc. respective affiliates, which shall mean all of their respective subsidiaries, parent companies, joint ventures and other entities controlling, controlled by or under common control with them (each respectively).
These Terms may not be otherwise amended except in a writing hand signed by you and Us. For purposes of this provision, “writing” does not include an e-mail message and a signature does not include an electronic signature.
1.4 OwnerView provides Services relative to horse ownership, including but not limited to:
a. the ability to view information regarding trainers, owners, syndicates and other information about getting involved in horse racing without having to create an account; and
b. upon creation of an account and verification of licensing, enabling the creation and posting of informational profiles by owners, trainers and syndicates; and
c. upon creation of an account and verification of licensing and confirmation of relationship, (i) ratings and reviews of trainers and syndicates by other end users which provide you the opportunity to read the opinions and experiences of other end users who have had relationships with the trainers and syndicates and (ii) enabling you to provide information on your own experiences with trainers and syndicates to other end users.
d. the “OwnerView Host” service which involves direct interaction with a representative of OwnerView to assist in locating and understanding the resources available through the OwnerView website.
2.1 Grant of a Limited License to Use the Service. Subject to your acceptance of and continuing compliance with these Terms and any other relevant OwnerView-related policies, We grant you a non-exclusive, non-transferable, revocable and limited license, subject to the limitations contained in these Terms, to access OwnerView and to use the Service through a supported web browser (such as Microsoft Internet Explorer or Google Chrome) solely for your informational purposes. You agree not to use the Service for any other purpose.
Any information or data that We make available as part of the Service are provided exclusively for informational purposes and We make no implicit or explicit endorsement of any company, business model, business plan or investment strategy.
You must provide all equipment and software necessary to connect to the Service. You are responsible for any fees, including Internet connection or mobile fees that you incur when accessing the Service.
2.3 Use of the Service. The following restrictions apply to the use of the Service:
a.You shall not create an Account or access the Service if you are under the age of 18, unless your legal guardian has reviewed and agreed to these Terms on your behalf.
b.You shall monitor your Account to restrict use by minors, and you will prevent access to children under the age of 13. You accept full responsibility for any unauthorized use of the Service by minors or anyone else in connection with your Account.
c.You shall not use any incomplete, false or inaccurate biographical or other personal information for purposes of registering as a user, creating an Account or providing information in connection with any promotion.
d.You shall not have more than one Account at any given time, and shall not create an Account on behalf of someone other than yourself; provided however, that you may have multiple accounts if you are acting in the capacity of a representative of multiple legal organizations or entities.
e.You shall not have an Account or use the Service if you have previously been banned or removed by TJCIS or TOBA from accessing any TJCIS or TOBA website.
f.You shall not use the Service if you are located in a country embargoed by the United States or if you are on the U.S. Treasury Department's list of Specially Designated Nationals.
g.You shall not use your Account to propagate any chain letters, junk e-mail or repetitive messages (spim and spam) to anyone.
h.You shall not use your Account to engage in any illegal conduct.
i.You shall not sublicense, rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account to anyone without Our prior written permission, which We may withhold for any reason, in its sole discretion.
j.You shall not access or use an Account that have been sublicensed, rented, leased, sold, traded, gifted, bequeathed or otherwise transferred from the original Account creator without Our prior written permission.
k.If you access the Service from an SNS you shall comply with its terms of service/use as well as these Terms.
l.Any information you upload and/or provide to OwnerView shall be only that information which you are legally able to provide to others through media such as OwnerView and that the information provided does not violate the rights of any third person or entity and/or violate any applicable laws and/or regulations.
If We believe you have violated any of these prohibitions, We may immediately terminate your access to the Service, with or without notice to you.
You understand that on certain of Our websites your profile will be publicly available and that search engines may index your name, information you have uploaded and any profile photos.
2.5 Username and Password. During the Account creation process, you may be required to select a password (“Login Information”). The following rules govern the security of your Login Information:
a.You shall not share the Account or the Login Information, let anyone else access your Account, or do anything else that might jeopardize the security of your Account.
b.In the event you become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorized disclosure of the Login Information, you must immediately notify Us and modify your Login Information.
c.You are solely responsible for maintaining the confidentiality of the Login Information, and you will be responsible for all uses of the Login Information, including purchases, whether or not authorized by you.
d.You are responsible for anything that happens through your Account.
We reserve the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates such third party’s rights.
2.7 Limitations on Use. Any use of the Service in violation of these Limitations on Use is strictly prohibited, can result in the immediate revocation of your limited license granted under these Terms, and may subject you to liability for violations of law or of these Terms. ANY ATTEMPT BY YOU TO DISRUPT OR INTERFERE WITH THE SERVICE, INCLUDING UNDERMINING OR MANIPULATING THE OPERATION OF ANY TJCIS OR TOBA WEBSITE, IS A VIOLATION OF OUR POLICIES AND MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS. If We believe you have violated any of these Terms, We may immediately terminate your access to the Service, with or without notice to you. In addition to the other provisions of these Terms, the following prohibitions apply:
2.7.1. Prohibitions. You agree that you will not, under any circumstances:
a.Engage in any act that We deem to be in conflict with the spirit or intent of the Service, including but not limited to circumventing or manipulating these Terms or policies;
b.Make improper use of Our support services, including by submitting false abuse reports or using profane and abusive language in your communications with our personnel; or
c.Use the Service, intentionally or unintentionally, in connection with any violation of any law or regulation, or do anything that promotes the violation of any law or regulation.
2.7.2. Hacking. You agree that you will not, under any circumstances:
a.Without Our express written consent, modify or cause to be modified any files that are a part of the Service;
b.Institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of service attack or other attempt to disrupt the Service or any other person’s use or enjoyment of the Service; or
c.Attempt to gain unauthorized access to the Service, Accounts registered to others or to the computers, Servers or networks connected to the Service by any means other than the user interface provided by Us, including but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Service.
2.7.3.Offensive or Infringing Content. You agree that you will not, under any circumstances:
a.Post any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously or otherwise, objectionable or offensive;
b.Post any information that contains nudity, excessive violence or offensive subject matter or that contains a link to such content;
c.Attempt to, or harass, abuse or harm, or advocate or incite harassment, abuse or harm of another person or group, including without limitation Our employees and contractors; or
d.Make available through the Service any material or information that infringes upon any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person.
2.7.4. Collection and Publication of Personal Information. You agree that you will not, under any circumstances:
a.Solicit, or attempt to solicit, personal information from other users of the Service;
b.Collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image or video form), identification documents or financial information through the Service; or
c.Upload or transmit, or attempt to upload or transmit, without Our express written permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats (“gifs”), 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
d. Transmit unauthorized communications through the Service, including junk mail, chain letters, spam or any materials that promote malware, spyware or downloadable items.
2.7.5. Unauthorized Use or Connection to the Service. You agree that you will not, under any circumstances:
a.Interfere or attempt to interfere with the proper functioning of the Service or connect to or use the Service in any way not expressly permitted by these Terms;
b.Use any unauthorized third party software that accesses, intercepts, “mines” or otherwise collects information from or through the Service or that is in transit from or to the Service, including, without limitation, any software that reads areas of RAM or streams of network traffic used by the Service. We may, at our sole and absolute discretion, allow the use of certain third party user interfaces;
c.Intercept, examine or otherwise observe any proprietary communications protocol used by a user, a Server or the Service, whether through the use of a network analyzer, packet sniffer or other device;
d.Make any automated use of the system, or take any action that imposes or may impose (in Our sole discretion) an unreasonable or disproportionately large load on Our infrastructure;
e.Bypass any robot exclusion headers or other measures We employ to restrict access to the Service or use any software, technology or device to send content or messages, scrape, spider or crawl the Service, or harvest or manipulate data;
f.Use, facilitate, create or maintain any unauthorized connection to the Service, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Service; or (2) any connection using programs, tools or software not expressly approved by Us in writing;
g.Except where permitted by law or relevant open source licenses, reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any software or other intellectual property used to provide the Service, or to obtain any information from the Service using any method not expressly permitted by Us; or
h.Copy, modify or distribute rights or content from any of Our websites, or any of Our copyrights or trademarks or use any method to copy or distribute the content of the Service, except as specifically allowed in these Terms.
2.8 Suspension and Termination of Account and Service. WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY LIMIT, SUSPEND, TERMINATE, MODIFY OR DELETE ACCOUNTS OR ACCESS TO THE SERVICE OR PORTIONS THEREOF, WITH OR WITHOUT NOTICE TO YOU, IF WE SUSPECT THAT YOU ARE FAILING TO COMPLY WITH ANY OF THESE TERMS OR FOR ANY ACTUAL OR SUSPECTED ILLEGAL OR IMPROPER USE OF THE SERVICE. YOU CAN LOSE YOUR USER NAME AND PERSONA AS A RESULT OF ACCOUNT TERMINATION OR LIMITATION, AS WELL AS ANY BENEFITS, PRIVILEGES, EARNED ITEMS AND PURCHASED ITEMS ASSOCIATED WITH YOUR USE OF THE SERVICE, AND WE ARE UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY SUCH LOSSES OR RESULTS.
WITHOUT LIMITING OUR OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND USER ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR WEBSITES, AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE HOSTED CONTENT, AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICE IF WE BELIEVE THAT THEY ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES. ADDITIONALLY, WE MAY, IN APPROPRIATE CIRCUMSTANCES AND AT OUR SOLE DISCRETION, SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO MAY BE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
We reserve the right to stop offering and/or supporting the Service or part of the Service at any time either permanently or temporarily, at which point your license to use the Service, or a part thereof, will be automatically terminated or suspended. In such event, We shall not be required to provide refunds, benefits or other compensation to users in connection with such discontinued elements of the Service. Termination of your Account can include disabling your access to the Service or any part thereof including any content you submitted or others submitted.
You may cancel any Account registered to you at any time by emailing email@example.com and requesting that your account be cancelled.
2.9.1. Service. The Service, including without limitation any titles, computer code, software, themes, objects, photographs, horse names, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, and documentation are works owned or licensed by TJCIS or TOBA. We reserve all rights, including without limitation, all intellectual property rights or other proprietary rights, in connection with the Service and its content. All data provided herein is subject to copyright of The Jockey Club Information Systems, Inc., Thoroughbred Owners and Breeders’ Association, Inc. and/or Equibase Company LLC, all rights reserved.
2.9.2. Accounts. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN AN ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO AN ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO OUR BENEFIT. GENERALLY, ACCOUNTS CREATED WITH US WILL BE CONSIDERED ACTIVE UNTIL WE RECEIVE A USER REQUEST TO DEACTIVATE OR DELETE THEM; HOWEVER, WE RESERVE THE RIGHT TO TERMINATE ANY ACCOUNT THAT HAS BEEN INACTIVE FOR 180 DAYS OR AS OTHERWISE DESCRIBED HEREIN.
2.9.3. User Content. “User Content” means any communications, information, images, sounds, data and information that you upload or transmit through the Service, or that other users upload or transmit, including without limitation any profile information, photographs, reviews or comments.
To the extent required, You hereby grant TJCIS, TOBA and their respective Affiliates a perpetual and irrevocable (other than as provided below), worldwide, fully paid-up and royalty free, non-exclusive, unlimited license, including the right to sublicense and assign to third parties, and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, aggregate, create derivative works from, manufacture, introduce into circulation, commercialize, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way now known or in the future discovered, your User Content as well as all modified and derivative works thereof in connection with our provision of the Service, the website and related matters, including marketing and promotions thereof. To the extent permitted by applicable laws, you hereby waive any moral rights you may have in any User Content. The license you grant Us to use user posted content ends when you delete your User Content or you close your Account unless your User Content has been shared with others, and they have not deleted it. However, you understand and accept that removed content may persist in back-up copies for a reasonable period of time.
3. USER CONTENT
3.1 Content Screening. You are entirely responsible for all User Content you post or otherwise transmit via the Service. We assume no responsibility for the conduct of any user submitting any User Content, and assume no responsibility for monitoring the Service for inappropriate or illegal content or conduct.
We have no obligation to monitor User Content. However, We reserve the right to review, modify and/or delete any User Content that in Our sole and absolute discretion, violates these terms and conditions. If We choose at any time, in our sole discretion, to monitor the Service, We have the right, in Our sole discretion, to edit, refuse to post, or remove any User Content and We may monitor and/or record your interaction with the Service or communications (including without limitation chat text and voice communications) when you are using the Service. By entering into these Terms, you hereby provide your irrevocable consent to such monitoring and recording.
3.2 Information Use by Other Members of the Service.
3.2.1. Public Discourse & Unsolicited Ideas. The Service may include various forums where you can post User Content, including your observations and comments on designated topics. We cannot guarantee that other members will not use the ideas and information that you share. Therefore, if you have an idea or information that you would like to keep confidential and/or don’t want others to use, do not post it. We shall have no responsibility to evaluate, use or compensate you for any ideas or information you may choose to submit.
If you submit suggestions, proposals, comments or other materials (collectively “Submissions”) within the Service you understand and agree that We (1) shall have no obligation to keep your Submissions confidential; (2) shall have no obligation to return your Submissions or respond in any way; and (3) may use your Submissions for any purpose in any way without notice or compensation to you.
WE ARE NOT RESPONSIBLE FOR A MEMBER’S MISUSE OR MISAPPROPRIATION OF ANY CONTENT OR INFORMATION YOU POST.
3.2.2. Responsible For Your Own Content. You are solely responsible for the information that you post on, through or in connection with the Service and that you provide to others. Information, materials, products or services provided by other users (for instance, in their profiles) may, in whole or in part, be unauthorized, impermissible or otherwise violate these Terms, and We assume no responsibility or liability for this material. If you become aware of misuse of the Service by any person, please contact us at firstname.lastname@example.org .
We may reject, refuse to post or delete any User Content for any or no reason, including, but not limited to, User Content that, in the sole judgment of Us, may violate these Terms.
We reserve the right to limit the storage capacity of User Content that you post on, through or in connection with the Service.
3.3 Disclosure. Your information, and the contents of all of your online communications (including without limitation chat text, voice communications, IP addresses and your personal information) may be accessed and monitored as necessary to provide the Service and may be disclosed: (a) when We have a good faith belief that We are required to disclose the information in response to legal process (for example, a court order, search warrant or subpoena); (b) to satisfy any applicable laws or regulations; (c) if We believe that the Service is being used in the commission of a crime, including to report such criminal activity or to exchange information with other companies and organizations for the purposes of fraud protection and credit risk reduction; (d) when We have a good faith belief that there is an emergency that poses a threat to the health and/or safety of you, another person or the public generally; and (e) in order to protect Our rights or property, including to enforce these Terms. By entering into these Terms, you hereby provide your irrevocable consent to such monitoring, access and disclosure.
3.4 User Interactions.
3.4.1. Member Disputes. You are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the Service. We reserve the right, but have no obligation, to become involved in any way with these disputes.
3.4.2. Release. IF YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU RELEASE US (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE OR DATA. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
3.5 Ratings and Reviews. In order to submit ratings and reviews on OwnerView, you acknowledge and agree that:
a. You must set up an account in order to post ratings and reviews;
b. All of your ratings and reviews will be based on your actual first-hand experiences with the trainer or syndicate you are reviewing;
c. All of your ratings and reviews will be accurate, truthful and complete in all respects.
d. You do not work for, and have not worked for, the trainer or syndicate you are reviewing;
e. You are not in any way related to the trainer or syndicate you are reviewing;
f. Your name and other information related to your relationship with the syndicate or trainer you are reviewing, including horse name, will be displayed along with your ratings and/or review.
4. THIRD PARTY ADVERTISING
4.2 Links to Third Party Sites and Dealings With Advertisers. We may provide links to third party websites or vendors. We make no explicit or implicit representation or warranty regarding any content, goods and/or services provided by any third party even if linked to from our Service, and will not be liable for any claim relating to any third party content, goods and/or services. The linked sites are not under our control and may collect data or solicit personal information from you. We shall not responsible for any actions or omissions by such sites, for their content, business practices or privacy policies, or for their collection, use or disclosure of any information. Further, the inclusion of any link does not imply endorsement by Us of any linked sites.
5. COPYRIGHT NOTICES/COMPLAINTS
It is Our policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA”). We reserve the right to terminate without notice any user's access to the Service if We determine, in our sole discretion, that such user is a “repeat infringer.”
6. UPDATES TO THE SERVICE
You understand that the Service is an evolving one. You acknowledge and agree that We may update the Service with or without notifying you. You may need to update third party software from time to time in order to receive the Service.
7. DISCLAIMERS / LIMITATIONS / WAIVERS / INDEMNIFICATION
7.1 DISCLAIMER OF WARRANTIES. YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, TIMELINESS, ACCURACY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD TO BE THE SHORTER OF 30 DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED).
WITHOUT LIMITING THE FOREGOING, NEITHER TJCIS, TOBA NOR THEIR RESPECTIVE AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “OWNERVIEW PARTIES”) WARRANT (I) THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR (II) THE ACCURACY, QUALITY OR APPROPRIATENESS OF ANY USER CONTENT ON OWNERVIEW.
7.2LIMITATIONS; WAIVERS OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE, INCLUDING BUT NOT LIMITED TO CONSULTATIONS THROUGH THE “OWNERVIEW HOST” SERVICE, WHETHER VIA THE WEBSITE, VIA TELEPHONE OR IN PERSON, UNDER ANY CAUSE OF ACTION WHATSOEVER IN ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE OWNERVIEW PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE.
THE LIMITATIONS IN THIS SECTION 7 APPLY WHETHER THE ALLEGED LIABILITY IS BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE OWNERVIEW PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE OWNERVIEW PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING ANY USER CONTENT, OTHER USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, UNDER NO CIRCUMSTANCES WILL THE OWNERVIEW PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID US IN CONNECTION WITH THE SERVICE WITHIN THE 180 DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID US ANY AMOUNTS IN THE 180 DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU. IN ADDITION, OUR LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
WITH MULTIPLE PROCESSING OF COMPLEX DATA AND RELIANCE UPON INFORMATION ACQUIRED FROM MULTIPLE SOURCES ERRORS AND OMISSIONS CAN AND DO OCCUR DESPITE COMMERCIALLY REASONABLE EFFORTS TO AVOID THEM. NEITHER WE NOR EQUIBASE COMPANY LLC SHALL HAVE ANY RESPONSIBILITY OR LIABILITY FOR ANY LOSS OR DAMAGES RESULTING TO YOU OR TO ANY THIRD PARTY FROM ERRORS OR OMISSIONS IN ANY DATA OR INFORMATION CONTAINED ON OWNERVIEW.
7.3 Indemnification. You indemnify, defend, save, and hold TJCIS and TOBA, and the OwnerView Parties harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, including but not limited to consultations through the “OwnerView Host” service, whether via the website, via telephone or in person, any violation of law (including, without limitation, the securities law of the United States and/or any of the individual U.S. states) by you, any violation by you of these Terms, or any breach of the representations, warranties, and covenants made by you herein. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify TJCIS, TOBA and/or any of Our respective affiliates, and you agree to cooperate with Our defense of these claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
You agree that the provisions in this paragraph will survive any termination of your Account(s) or of the Service.
8. DISPUTE RESOLUTION
8.1 General. If a dispute arises between you and TJCIS and/or TOBA, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and We agree that we will resolve any claim or controversy at law or equity that arises out of these Terms or the Service (a “Claim”) in accordance with one of the subsections below or as We and you otherwise agree in writing.
8.2 Applicable Law. These Terms and any dispute arising out of or related to them or the Service shall be governed in all respects by the laws of the Commonwealth of Kentucky as they apply to agreements entered into and to be performed entirely within the Commonwealth of Kentucky between Kentucky residents, without regard to conflict of law provisions.
The Service is operated out of the United States of America. We do not represent the content or materials present in the Service are appropriate for use in other locations. If you access the Service from a jurisdiction outside of the United States, you agree that you do so on your own initiative, and are responsible for compliance with local laws where you reside or where you access the Service, if and to the extent that such laws are applicable to your use of the Service.
8.3 Arbitration. Any dispute or question arising as to the interpretation of any clause of, or the rights and liabilities of the parties under or in any manner relating to these Terms and Conditions and connected in any manner with use of the Service, if not resolved by negotiation, shall be referred to binding arbitration before a single arbitrator in Lexington, Kentucky, under the rules and procedures of the American Arbitration Association relating to the selection of arbitrators for the determination of issues. This agreement to arbitrate is supported by adequate consideration, receipt of which is acknowledged. The decision of the arbitrator will be binding, final and conclusive on the parties, and judgment on the arbitrator’s decision may be entered in any court having jurisdiction thereof. This agreement to arbitrate is binding upon the respective successors, heirs, legal representatives, assigns and transferees of the parties. The arbitrator may, sua sponte or upon the written request of a party, issue written directions as to the scope and timetable for discovery. In the event that the arbitrator should determine that the matter(s) in dispute may be resolved by a review of a written record, and that a hearing is not necessary, each party waives the right to a hearing. The arbitrator shall be charged to render a written opinion reciting the facts as determined and the applicable law as applied. The arbitrator may award injunctive and other equitable relief, as well as an award of monetary damages. No claim of fraud, duress or other basis for revocation of contract made with respect to these agreed Terms and Conditions shall limit or preclude the enforcement of this agreement to arbitrate except as such fraud, duress or other basis for revocation shall arise with particularity to this agreement to arbitrate, and each party conclusively agrees that this provision shall be interpreted in a manner consistent with the separability doctrine of Prima Paint Corp. v. Flood and Conklin Mfg. Co., 388 U.S. 395 (1967).
8.4 Improperly Filed Claims. All claims you bring against TJCIS and/or TOBA must be resolved in accordance with this Dispute Resolution Section. All claims filed or brought contrary to Section 8.2 shall be considered improperly filed. Should you file a claim contrary to Section 8.3, We shall be entitled to recover its reasonable attorneys' fees and costs actually incurred, provided that We have notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
10. GENERAL PROVISIONS
Except as expressly and specifically set forth in this these Terms, no representations, statements, consents, waivers or other acts or omissions by Us shall be deemed a modification of these Terms nor be legally binding, unless documented in physical writing, hand signed by You and a duly appointed representative of OwnerView.
Any notices that you provide without compliance with this Section on Notices shall have no legal effect.
10.6 Equitable Remedies. You acknowledge that the rights granted and obligations made under these Terms to Us are of a unique and irreplaceable nature, the loss of which shall irreparably harm Us and which cannot be replaced by monetary damages alone. Accordingly, We shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you.
You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service and agree to limit your claims to claims for monetary damages, limited by Section 7.2 (if any).
Force Majeure. We shall not be liable for any delay or failure to perform resulting from causes outside of our reasonable control, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Our control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.