WELCOME TO THOROUGHBREDTIMES.COM!  PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING, BROWSING OR OTHERWISE USING THIS SITE. 

 

This Agreement was last updated on 11/20/08.

 

1.         Scope of Agreement

 

This Website Terms of Use Agreement (the “Agreement”) is between you (“You” and “Your”) and Thoroughbred Times Company, Inc. (“Thoroughbred Times”). This Agreement governs Your access to and use of this Website (including without limitation, all Content, software, HTML and other code, and script forming a part of this Website, Your ability to upload Content to the Website, and all goods, services and transactions offered through this Website, the “Site”). In addition to complying with the terms and conditions of this Agreement, You agree to comply with all additional terms and conditions governing the access to and use of specific areas of this Site which are incorporated into and made a part of this Agreement:

 

Please to read Thoroughbred Times’ Privacy Policy which is hereby incorporated into and made a part of this Agreement.  The Privacy Policy explains how Thoroughbred Times collects, uses and discloses Your personal information.

 

2.                   Binding Agreement

 

BY ACCESSING OR USING THIS SITE IN ANY MANNER YOU ARE DEEMED TO HAVE READ, UNDERSTOOD AND AGREED TO EACH OF THE TERMS, CONDITIONS AND NOTICES SET FORTH IN THIS AGREEMENT. IF YOU DO NOT UNDERSTAND OR AGREE TO EACH OF THE TERMS, CONDITIONS AND NOTICES IN THIS AGREEMENT, YOU SHOULD NOT ACCESS OR USE THIS SITE IN ANY MANNER.

 

 

2,         Definitions

            (a)  Content refers to, without limitation, text, graphics, photos, illustrations, images, video and audio clips that are accessible from the Site.

            (b) Intellectual Property refers to, without limitation:

(i) all names and marks, including trademarks, service marks, trade names, corporate names, trade dress, slogans, logos and domain names, and registrations and applications for registration thereof including, all registered and unregistered trademarks, trade names, service marks and applications therefor and all goodwill associated therewith;

(ii) all patents, patent applications and inventions, including any provisional, utility, continuation, continuation in part or divisional applications filed in the United States or any other jurisdiction, and all reissues thereof and all reexamination certificates issuing therefrom;

(iii) all ownership rights to any copyrightable works or works in progress, including all related copyright registrations;

(iv) all know-how or other trade secrets, whether or not reduced to practice, whenever and however arising, including ideas, designs, models, industrial designs, concepts, techniques, inventions, discoveries or improvements, information, data, trade secrets or experience, whether patentable or not, including but not limited to, all design or manufacturing techniques, operating instructions, machinery designs, raw materials or product specifications, drawings, and any other technical and commercial information relating to research, design, development, manufacture, assembly, use or sale, confidential information, or proprietary information; all computer and electronic data processing programs and software programs and related documentation; existing research projects; products, processes and computer software presently under development; all product, process and software concepts owned; and all proprietary information, processes, formulae and algorithms used in the ownership, marketing, development, maintenance, support and delivery of such products, processes and software;

(v) all licenses, options to license, agreements, contracts and other contractual rights concerning any such intellectual property; and

(vi) goodwill associated with any of the foregoing.

            (c)  Submission refers to, without limitation, anything that You submit or post to the Site and/or to Thoroughbred Times, including without limitation, video content, audio content, ideas, know-how, techniques, questions, comments and suggestions.

            (d)  Thoroughbred Times refers to the legal entity Thoroughbred Times Co., Inc., and any and all related entities, officers, employees, affiliates, agents, and licensors.

 

3.         Use and Protection of Password and ID

 

(a)        Thoroughbred Times may assign a password and an account ID to You so You can access and use certain areas of this Site. Each user who uses such password and ID will be deemed to be authorized to access and use this Site and Thoroughbred Times has no obligation to investigate the authorization or source of any such access or use. YOU ACKNOWLEDGE AND AGREE THAT YOU WILL BE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THIS SITE BY ANYONE USING THE PASSWORD AND ID ORIGINALLY ISSUED TO YOU WHETHER OR NOT SUCH ACCESS TO AND USE OF THIS SITE IS ACTUALLY AUTHORIZED BY YOU, INCLUDING WITHOUT LIMITATION, ALL UPLOADS, COMMUNICATIONS AND TRANSMISSIONS, AND ALL OBLIGATIONS (INCLUDING WITHOUT LIMITATION FINANCIAL OBLIGATIONS) THAT MAY RESULT FROM SUCH ACCESS OR USE.

 

(b)        You are solely responsible for protecting the security and confidentiality of the password and ID. You shall immediately notify Thoroughbred Times of any unauthorized use of the password or ID, or any other breach or threatened breach of this Site’s security.

 

4.         Modification of the Agreement and the Site

 

Thoroughbred Times may, at any time and in its sole discretion, modify, revise or otherwise change this Agreement and/or Site (including without limitation adding or discontinuing any or all services or transactions offered through this Site), in whole or in part, without notice or liability to you.

 

5.         Licenses

 

(a)        Subject to the terms and conditions of this Agreement, You are granted a limited, revocable, non-exclusive and non-transferable license, without the right to sublicense, to access and use this Site only for displaying this Site on Your Internet browser.  Your access and use of this Site is further limited to personal, internal and non-commercial purposes only.

 

(b)        Except as permitted in the limited license set forth in paragraph (a), above, You shall not copy, reproduce, distribute, display, perform, sell, lease, transmit or create derivative works from this Site  (in whole or in part) or translate, modify, reverse‑engineer, disassemble, or decompile this Site (in whole or in part). 

 

(c)        To the extent that Thoroughbred Times grants You the right to upload Content to the Site:

 

(i).        Subject to the Privacy Policy, each and every Submission is and will be treated as nonconfidential and nonproprietary.  Thoroughbred Times shall have the non-exclusive and sublicensable, royalty-free, worldwide, perpetual and transferable right to use, copy, reproduce, distribute, display, perform, sell, lease, transmit or create derivative works from any such Submission by any means and in any form, and to translate, modify, reverse engineer, disassemble, or decompile any such Submission. All copies of Submissions shall automatically become the sole and exclusive property of Thoroughbred Times and shall not be returned to You.  Thoroughbred Times has no obligation to include any Submission in its Site, and has the right to remove or modify and or all Submissions at any time for no reason whatsoever, without incurring any liability.

 

(ii).        You warrant and represent that you own or have the right to license the rights granted above; that You have full power and authority to enter into this Agreement; and that each and every Submission (a) does not violate or infringe the rights of any persons, including without limitation, rights in copyrights, patents, trademarks, service marks, trade secrets, privacy rights, publicity rights, and other proprietary rights; (b) is not libelous, threatening, defamatory, obscene, indecent, pornographic, or could give rise to any civil or criminal liability under U.S. or international law; and (c) includes no harmful code or properties, including but not limited to  bugs, viruses, worms, trap doors, or Trojan horses. 

 

 

6.         Availability and Use of Site

 

The availability of this Site depends on many factors, including factors that are beyond Thoroughbred Times’ control, such as Your connection to the Internet and the involvement of Internet service providers connecting You with our Site.  Thoroughbred Times shall not be liable to You if You cannot use this Site due to any reason.

 

7.         Termination; Effect of Termination

 

(a)        In addition to any other legal or equitable remedies, Thoroughbred Times may, without prior notice to You, immediately terminate this Agreement or revoke any or all of Your rights granted under this Agreement. You may terminate this Agreement by contacting Thoroughbred Times at subscriber@thoroughbredtimes.com.

 

(b)        Upon any termination of this Agreement, You shall immediately cease all access to and use of this Site and Thoroughbred Times shall, in addition to any other legal or equitable remedies, immediately revoke all password(s) and account ID(s) issued to You and deny Your access to and use of this Site in whole or in part.  Any termination of this Agreement shall not affect the respective rights and obligations (including without limitation payment obligations) of the parties arising before the date of termination. The provisions of Sections 5, 7, 8, 12, 13, 17, 18-19 and 21 shall survive the termination of this Agreement.

 

8.         Intellectual Property

 

(a)        U.S. and international copyright, trademark and other intellectual and proprietary laws protect this Site, and any unauthorized access to or use of this Site may violate such laws.  Thoroughbred Times shall aggressively enforce its intellectual and proprietary rights to the fullest extent of the law.

 

(b)        All Content that is part of this Site and all Intellectual Property associated therewith, are the sole and exclusive property of Thoroughbred Times or third parties. You are not granted any right or license, either express or implied, in any Intellectual Property except as explicitly set forth herein.  To the extent that You use any Intellectual Property associated with the Site, such use and all goodwill associated therewith shall inure solely and exclusively to the benefit of Thoroughbred Times.

 

(c)        You shall not remove any copyright, trademark, or other proprietary legends or notices that appear on, in or as part of this Site.

 

 

9.         Notice of and Procedure for Copyright Infringement

 

(a)        Thoroughbred Times respects other’s intellectual property and proprietary rights. In accordance with the Digital Millennium Copyright Act, Thoroughbred Times has designated a Copyright Agent to receive notice of claims of alleged copyright infringement on the Site. If You believe that Your copyrighted material has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on this Site or on sites linked to or from this Site, please send Thoroughbred Times’ Designated Agent a notice containing the following elements:

 

(i)       An electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work(s) that is/are alleged to have been infringed;

(ii)     A description of the copyrighted work(s) that you claim is/are infringing and the location where the original or an authorized copy of the copyrighted work(s) exists/exist (for example, the Uniform Resource Link (“URL”) of the Website where the copyrighted work[s] is/are lawfully published; the name, edition and page[s] of a book, etc.);

(iii)    A description of where the material that You claim is/are infringing is/are located on this Site, including the URL, so that Thoroughbred Times can locate the material;

(iv)   Your address, telephone number and e-mail address;

(v)     A statement that You have a good faith belief that the use of the material identified in the notice is not authorized by the copyright owner, its agent, or applicable law; and

(vi)   A statement by You, under penalty of perjury, that the above information is accurate and that You are the copyright owner or are authorized to act on behalf of the copyright owner.

 

(b)        Send the notice containing the above information to the following Designated Agent:

 

Internet Content Editor, Thoroughbred Times, P.O. Box 8237, Lexington, KY 40533.

 

NOTE: THE NOTICE REQUIRED BY THIS SECTION IS EXCLUSIVELY FOR NOTIFYING THOROUGHBRED TIMES THAT COPYRIGHTED WORK(S) MAY HAVE BEEN INFRINGED. DO NOT SEND ANY NOTICES OR INQUIRIES UNRELATED TO ALLEGED COPYRIGHT INFRINGEMENT TO THOROUGHBRED TIMES’S DESIGNATED AGENT.  SUCH NOTICES OR INQUIRIES SHOULD INSTEAD BE SENT TO THE E-MAIL ADDRESS OR MAILING ADDRESS LISTED BELOW IN THE SECTION TITLED “CONTACT INFORMATION.”  

 

10.        Links to Other Internet Sites

 

This Site may contain links to Internet sites owned, operated or maintained by third parties not under the control of Thoroughbred Times.  These links are provided for Your convenience only.  Such links are not and shall not be deemed to be an endorsement by Thoroughbred Times of the organization or individual associated with the linked site.  You assume sole responsibility and liability for Your use of such linked sites.

 

11.        Links to this Site

 

You must obtain Thoroughbred Times’ prior written consent before creating any link(s) to this Site except for Your personal use of the Site through your Internet browser.

 

12.        Warranty Disclaimer; Limitation of Liability  

 

(a)        ALL CONTENT, SERVICES AND TRANSACTIONS ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. THIS SITE MAY INCLUDE INACCURACIES, MISTAKES OR TYPOGRAPHICAL ERRORS. THOROUGHBRED TIMES DOES NOT WARRANT THAT THE CONTENT WILL BE UNINTERRUPTED OR ERROR FREE. THOROUGHBRED TIMES DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, QUIET ENJOYMENT, DATA ACCURACY AND SYSTEM INTEGRATION. 

 

            (b)        TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THOROUGHBRED TIMES, ITS PARENT, SUBSIDIARIES OR AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE FOR PUNITIVE, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, INDIRECT OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, REVENUES, BUSINESS, USE, DATA OR OTHER INTANGIBLES), WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE AND EVEN IF THOROUGHBRED TIMES HAD BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.  

 

(c)        TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THOROUGHBRED TIMES’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES (REGARDLESS OF THE FORM OF ACTION, WHETHER CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY AND/OR OTHERWISE) SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO THOROUGHBRED TIMES FOR THE ONE-MONTH PERIOD PRIOR TO THE ACT ALLEGEDLY GIVING RISE TO THOROUGHBRED TIMES’S LIABILITY.

 

13.        Indemnity

 

You agree to indemnify, defend and hold harmless Thoroughbred Times, its parent, subsidiaries, affiliates, and their respective officers, directors, shareholders, employees and agents from and against any and all claims, liabilities, expenses (including attorneys' fees) and damages arising out of claims resulting from Your access or connection to, or use of this Site, including without limitation claims arising out of any or all Submissions or Content  associated directly or indirectly with You, Your violation of a third party’s Intellectual Property or other rights, or any claims alleging facts that if true would constitute a breach by You of the terms and conditions of this Agreement, including, but not limited to any and all warranty or representation. Thoroughbred Times reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, and in such case, You agree to cooperate with Thoroughbred Times in the  defense or in asserting counterclaims to any such claims and You shall continue to pay all costs, expenses and attorneys fees following Thoroughbred Times’ assumption of control (including, but not limited to the right to select counsel and to make all strategic decisions in any litigation or other proceeding related in any way to the foregoing) until the matter is resolved, as well as any resultant damages.

 

 

14.        Relationship of Parties

 

You acknowledge that no joint venture, partnership, employment, or agency relationship exists between You and Thoroughbred Times as a result of this Agreement or any use of this Site. You agree not to hold Yourself out as a representative, agent, or employee of Thoroughbred Times and Thoroughbred Times shall not be liable for any representation, act or omission by You to the contrary.

 

15.        Assignment

 

            Your rights are personal.  You shall not assign or otherwise transfer this Agreement or assign, delegate or otherwise transfer any of Your rights, interests or obligations under this Agreement and any such assignment, delegation or other transfer shall be void. This Agreement shall inure to the benefit of Thoroughbred Times’ successors, assigns and licensees.

 

16.        Injunctive Relief; Remedies

 

(a)        You agree that the remedy at law to Thoroughbred Times for any actual or threatened breach of this Agreement would be inadequate and that Thoroughbred Times shall be entitled to specific performance or injunctive relief, or both, in addition to any damages that Thoroughbred Times may be legally entitled to recover, together with reasonable expenses of any form of dispute resolution, including attorneys’ fees.

 

            (b)        All rights and remedies granted to Thoroughbred Times under this Agreement are cumulative and not alternative, and are in addition to all other rights and remedies available to Thoroughbred Times at law or in equity.

 

17.        Governing Law and Jurisdiction; Limit on Commencing Actions; Waiver of Jury Trial; Attorneys Fees

 

(a)        This Agreement is governed by the laws of the Commonwealth of Kentucky, U.S.A. without regard to the conflicts of laws principles thereof. You consent to the exclusive jurisdiction and venue of the state and federal courts in Lexington, Kentucky U.S.A. in all disputes arising out of or relating to the use of this Site. 

 

(b)        You must commence any cause of action or claim against Thoroughbred Times within one (1) year after the cause of action or claim arises, otherwise You agree that Your cause of action or claim shall be barred. 

 

(c)        You knowingly, voluntarily and intentionally waive any right you may have to a trial by jury with respect to any proceeding arising out of or in any way relating to this Agreement. 

 

(d)        You knowingly, voluntarily and intentionally agree to pay all costs and expenses, including attorneys’ fees, to Thoroughbred Times with respect to any proceeding arising out of or in any way relating to this Agreement, regardless of the outcome of said proceeding.

 

18.        International Access

 

This Site can be accessed from countries other than the United States. This Site may contain Thoroughbred Times products or services, or references to Thoroughbred Times products or services that are not available outside of the United States. Any such references do not imply that such Thoroughbred Times products or services will be made available outside the United States. If You access and use this Site outside the United States You are responsible for complying with Your local laws and regulations.  

 

19.        Severability 

If any provision of this Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, the invalidity of such provision shall not affect the other provisions of this Agreement, and all provisions not affected by such invalidity shall remain in full force and effect.

 

 

20.        Contact Information

 

Please send any questions or comments (including all inquiries unrelated to copyright infringement) regarding this Site by e-mail to letters@thoroughbredtimes.com or by regular mail to:

 

Thoroughbred Times Company, Inc.

PO Box 8237

Lexington, KY 40533

 

21.        Reservation of Rights

 

Thoroughbred Times reserves to itself any and all rights not expressly granted herein.