1. DEFINITIONS AND INTERPRETATION
"Account" means an Account established by MiStable to enable a Member to access and use the Service, as described in clause 3 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 MiStable based on or derived from Third-Party Content;
“Customer” means the horse trainer, stud agistment operator, syndicator or such other provider, who produces Content for MiStable that appears in the Service provided to Members;
"Fees" means fees and charges payable by the Customer 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, pandemics, epidemics, diseases relating to thoroughbreds such as equine influenza, 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 MiStable;
"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 MiStable from time to time via web sites, web applications (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, Customers to MiStable which appears or is published on the Website and/or which MiStable uses in providing the Service and also includes content on websites that may be linked to or from the Website.
2. EFFECT OF TERMS
2.5 MiStable unconditionally reserves the right to refuse, cancel, terminate or suspend a Customer or Member, or any person purporting to be entitled to be or become a Customer or Member, for any reason or reasons whatsoever and at any time, and MiStable shall not be liable for any loss, damage or expense (incurred directly or indirectly) in respect of the exercise of that right.
3. NATURE OF THE SERVICE
3.2 Customers acknowledge and accept that the Service:
- is a content service that includes the provision of web sites (including the Website) and web applications;
- is designed for informational purposes only and that Customers participate at their own risk;
- must not be transmitted, retransmitted, broadcast, or made available to the public or to any other person;
- must not be relied on or used by Customers in connection with any gambling, wagering, betting or betting service;
- provides Content which is in most cases based upon Third-Party Content, whether uploaded to the Service in real-time or otherwise, and that it is not intended that any Content provides nor is to be taken as providing an authoritative, conclusive or neutral view or review on any matters addressed in such Content;
- that Content may not be free from errors and defects, that it may not be correct or accurate and that it may not be possible to determine whether it is correct or accurate;
- that Content may provide or be intended to provide or express an opinion or view that is held by the person providing or expressing or giving it without intended or wanting any other person to rely on it in any way whatsoever;
- uses and relies on Third-Party Content that is provided to MiStable which is, in most cases, beyond MiStable's capability and ability to verify or screen, and that the mere availability of any Third-Party Content, including any Content containing such Third-Party Content, via the Service has not been, nor should not be taken as if MiStable has verified or endorsed such Third-Party Content;
- is provided 'as is' without taking into consideration the individual circumstances of Customers such that it may offer differing capabilities or benefits to different Customers, and MiStable provides no warranties that the Service will offer Customers equivalent, similar or consistent capabilities or benefits to all Customers;
- is provided by MiStable to Customers subject to their irrevocable and unconditional undertaking to provide the continuous warranties in clause 5 below when using the Service;
- is continually being modified and improved by MiStable such that there is no guarantee or warranty that the Service will always be available to Customers or remain unchanged or that the Service will contain any specific or general characteristics; and
- may display advertisements and promotions and may otherwise be supported by advertising revenue. This advertising and promotional material may also extend to emails via MiStable’s approved partners. Such advertisements and promotions may be targeted to information stored in the Service and the Member’s use/and or queries made through the Service.
3.3 MiStable may undertake Maintenance whenever it deems appropriate. No representation or warranty is made whatsoever as to availability or reliability of the Services. MiStable will endeavour to issue a notice on the Website prior to Maintenance however MiStable neither undertakes nor warrants that it will issue such notice in respect of any Maintenance.
3.5 The Customer and Member releases MiStable from any and all loss or liability, costs, claims or expense in respect of any matter arising from or associated with the use of the Service and further releases and discharges MiStable from all proceedings, claims and other actions in respects thereof.
4. MEMBER ACCOUNTS
4.1 Customers agree and undertake that when establishing and whilst maintaining an Account, the Member will provide all the information required by MiStable to enable the Member to operate and maintain the Account.
- 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;
- 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 MiStable immediately if it becomes aware of any unauthorised use of the Account or Service;
- 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;
- 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;
- MiStable 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;
- agrees that we may place advertising on the Service.
5. CUSTOMER UNDERTAKINGS, REPRESENTATIONS AND WARRANTIES
5.1 In using the Service, Customers represent, warrant and undertake as follows:
- 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;
- not to use the Service in a manner that is considered unreasonable, abusive or excessive by MiStable or in a way that adversely affects the functionality and/or capacity of the Service;
- 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;
- not to use the Service including any Content which in the reasonable opinion of MiStable might adversely affect the business or brand or reputation of MiStable, or which might bring MiStable or any related entity of MiStable into disrepute, contempt, scandal or ridicule;
- that it is the Member’s 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 Customers must not look to MiStable for compensation in respect of any losses or damages, howsoever incurred, that the Member incurs in reliance on any Content or Third-Party Content;
- that in respect of any Third-Party Content that is provided by the Customer to the MiStable Service:
- all such Third-Party Content will be complete, reliable, accurate, valid and current;
- 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 Customer;
- 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;
- the Customer will pay the Fees and any other monies due to MiStable as and when they are due;
- the Customer will comply with any Policies issued by MiStable from time to time;
- the Customer will not publish or reproduce any Confidential Information of MiStable in any form, including without limitation on or in the Service or Website or on any external websites unaffiliated with MiStable or in any print medium, without the prior written permission of MiStable;
- the Customer’s responsibility to ensure its own compliance with all applicable laws when using the Service, and MiStable disclaims any responsibility and liability for the Customer's compliance to the full extent permitted by law;
- not to use the Service as a means to facilitate a gambling, promotion of gambling or other betting transaction or service, either to a wagering operator or otherwise;
- not to rely on the Service in any circumstances where a reasonable person in the Customer's position, having the same knowledge and information as the Customer 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
- 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 Customer; (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 MiStable, including the Intellectual Property.
5.2 Customers acknowledge and agree to be responsible for all losses and damages which the Member incurs, howsoever incurred (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, Customers 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 MiStable for all losses and damages which MiStable 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 Customers 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. Customers agree that they must not look to MiStable 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.
6. FEES & CHARGES
6.1 Customers acknowledge and agree that MiStable may at any time introduce, charge or vary any Fees relating to the provision and use of the Service by Customers in whatever manner it deems appropriate. MiStable will provide at least one (1) months' notice to Customers, using any method it deems appropriate, of any proposed introduction or variation of any Fees in respect of the provision of the Service to Customers and the Customer will have been deemed to have accepted such Fees if it does not notify MiStable to the contrary, or cancel its Member’s Account and cease use of the Service after the relevant notice period. For the avoidance of doubt, any increase in Fees shall not apply in respect of the period for which Fees have already been paid as at the date when the increase takes effect but shall apply to any future period(s).
6.2 For the avoidance of doubt, where MiStable has issued a notice under clause 6.1 above and a Customer does not respond or otherwise take any other action which evinces its acceptance or refusal of the matters in such notice, MiStable may, if it deems appropriate, suspend the Customers' use of the Service, including doing any associated matters necessary, instead of charging or debiting the Fees from the Customer.
6.3 In addition to the matters in clause 6.1 above, Customers acknowledge and agree that:
- if MiStable requires Customers to pay Fees in respect of the use of the Service, such Fees will be payable in monthly advances by direct debit unless otherwise advised by MiStable;
- any paid Fees will not be refunded where the Customer indicates that it wishes to close or terminate the Service, for whatever reason;
- MiStable will not refund any Fees in the event that the Member does not make use of the Service for whatever reason;
- MiStable will not refund any portion of the Fees in the event that access to the Service is temporarily suspended from operation for whatever reason;
7. WARRANTIES, DISCLAIMERS AND INDEMNITIES
7.1 Customers irrevocably and unconditionally acknowledge and accept the following in using the Service or Website:
- that in providing the Service, MiStable reserves the absolute right to revise, alter, redact, modify or remove any Content and Third-Party Content without notice or liability to the Member;
- that MiStable assumes that any Third-Party Content MiStable 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 MiStable 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;
- in relation to Third-Party Content which are links to or from the Website or Service, MiStable 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 Customers to exercise their own judgment when navigating to and/or relying on any content appearing on the Linked Websites;
- in relation to the Linked Websites, MiStable 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 MiStable, and Customers 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;
- 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 MiStable 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;
- that to the maximum extent permitted by law, MiStable 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 MiStable may be required to perform Maintenance and because use of the Service may depend on the availability and reliability of any computer network;
- that MiStable 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 MiStable 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;
- that MiStable 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 MiStable 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 MiStable from any and all claims in respect thereof.
8. INTELLECTUAL PROPERTY
8.1 Customers acknowledge and agree in respect of the Content:
- MiStable retains full and complete title and interest to the Content including all Intellectual Property Rights;
- the Customer or 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 MiStable 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:
- any of its directors, employees, advisers and agents who need to know the Confidential Information;
- where necessary for the provision of the Services, including to any subcontractor or related entity of of MiStable; or
9.4 Clause 9.1 shall not apply to the disclosure of Confidential Information:
- with the consent of the person to whom the information relates; or
- if and to the extent:
- required by law; or
- required by any competent regulatory authority or recognised stock exchange; or
- that such information is in the public domain other than through breach of this clause.
10. TERMINATION & SUSPENSION
11. DISPUTE RESOLUTION
- the Member must first provide full details of the Dispute to MiStable by email to such email address as MiStable may designate from time to time on the Website or otherwise and by mail by registered post and allow MiStable a reasonable amount of time to investigate the Dispute before providing a written response; and
- the Member shall assist and cooperate with MiStable during the period when MiStable investigates and assesses the nature of the Dispute.
11.2 Customers hereby indemnify MiStable 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 MiStable 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.
- if sent by mail (postage prepaid), 3 business days after posting within Australia to an Australian address or 10 business days after posting by airmail in any other case; and
- if sent by facsimile, at the time indicated on the sender's transmission report unless the recipient promptly informs the sender that the Notice was incomplete or not properly received; or
- 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 MiStable is received by MiStable after 5.00pm or on a day which is not a business day, it will be deemed to have been received by MiStable on the next business day.
12.2 Customers acknowledge that MiStable 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.