Kentucky Derby and Horse Racing at The Downey Profile®
Terms of Service
This website is provided for the use of The Downey Profile account holders and readers, and is owned and published by Dick Downey dba The Downey Profile.
Please read carefully.
INFORMATION WE MAY COLLECT
INFORMATION YOU CHOOSE TO PROVIDE
The Downey Profile collects and stores any information that you enter on our websites or give us in any other way. Examples include:
-Your name, mailing address and email address
-Your phone number or fax number
-Unique identifiers such as a user ID or password
-Demographic information such as your date of birth or age
1. INFORMATION FROM SOCIAL NETWORKING SITES
If you access any aspect of the Service through a third party social networking site ("SNS") such as Facebook©, you allow us to access and import information from your profile for that SNS which may affect the privacy settings you establish on the social networking site. You can find out more about these settings at the social networking site. By using the Service through a social networking site, you are authorizing us to collect, store and use any information that the social networking site provides to us through the social networking site’s interface with The Downey Profile. You agree to this when you “accept or “allow” one of our applications on the social networking site.
2. INFORMATION FROM MOBILE DEVICES including location information
If you use the Service on a mobile device or through a mobile application or sign up for SMS notifications or push notifications (where available), we may receive your mobile device identifier and/or IP address, the name you have associated with your device, device type, telephone number, country and geolocation. We use various technologies to determine IP address, GPS, and other sensors that may, for example, provide us with information on nearby devices, Wi-Fi access points and cell towers. Most mobile devices allow you to adjust location-based services and other information provided by your device.
4. COOKIES AND SIMILAR TECHNOLOGIES
The Downey Profile and/or its advertisers may use “cookies” (text files placed by a Website’s server on a visitor computer hard drive) and other similar technologies, such as “web beacons”, “pixel tags” and mobile identifiers. These technologies collect and store information when you interact with the Service and personalize the Service for you based on your preferences and selections. These technologies are also used to track visitor traffic patterns and other information for marketing and business purposes. You can set your web browser to disable or delete cookie data, but by doing so, you may be preventing yourself from taking advantage of the convenience this technology offers.
5. PAYMENT TRANSACTION INFORMATION
We collect information related to your payment transactions, including the payment instrument used, date and time, payment amount, payment instrument expiration date and billing postcode, IBAN information, your address and other related transaction details. This information is necessary for the adequate performance of the contract between you and The Downey Profile.
6. AGGREGATE INFORMATION
HOW WE USE INFORMATION WE COLLECT
We will never sell your contact information to third parties. "Contact information" means your telephone number, your email address, your mailing address and any other information your provide when ordering a service from The Downey Profile.
We may use, store, and process information, including personal information, about you to provide, understand, improve, and develop the Service, to create and maintain a trusted and safer environment and to comply with our legal obligations as discussed in more detail below. We and third party service providers may use, store, and process information collected as follows:
1. Provide, Improve, and Develop Our Service
-To enhance or personalize your visitor experience.
-To provide information or services you have requested.
-To process and maintain your e-membership application or other registration.
-To fulfill orders where you purchase products or services.
-To administer programs, promotions, contests or sweepstakes in which you participate.
-To study the use and popularity of our Service.
-To provide advertisers with aggregate information about our visitors.
-To improve our features, develop future offerings, conduct market research, and other purposes related to our business.
We process this information given our legitimate interest in protecting our Service, to measure the adequate performance of our contract with you, and to comply with applicable laws.
2. Create and maintain a trusted and safer environment:
-To detect and prevent fraud, spam, abuse, security incidents, and other harmful activity.
-To conduct security investigations and risk assessments.
-To verify or authenticate information or identifications provided by you.
-To comply with our legal obligations.
-To resolve any disputes with any of our customers and enforce our agreements with third parties.
-To enforce our Terms of Service and other policies.
We process this information given our legitimate interest in protecting our Service, to measure the adequate performance of our contract with you, and to comply with applicable laws.
3. Provide, personalize, measure and improve our advertising and marketing:
-To send you email or SMS notifications of new features and other news, but only in instances where you have elected to receive such information. You may opt out of such communications at any time by contacting us at [email protected] This information will not be used for any other purpose, except as required by law or when we believe that disclosure is necessary to protect our rights and/or comply with a judicial proceeding, court order, or legal process served on our Service.
-To personalize, measure, and improve our advertising.
-To administer referral programs, rewards, surveys, contests, or other promotional activities or events sponsored or managed by The Downey Profle.
-To provide advertisers with aggregate information about our visitors and customers.
We process your personal information for the purposes listed in this section given our legitimate interest in undertaking marketing activities to offer you products or services that may be of your interest.
You may review and change or delete your information with us at any time by contacting us at [email protected] To withdraw consent to receive email communications from us, please simply contact us at [email protected]
HOW WE SHARE INFORMATION WE COLLECT
As described below, we may share your information with others for various purposes:
We employ other businesses and individuals to perform functions on our behalf. Examples may include fulfilling orders, site analysis, analyzing data, providing marketing assistance, processing credit card payments and providing customer service. They may have access to personally identifiable information needed to perform their functions.
2. AGGREGATE INFORMATION
We may share aggregate information such as site usage statistics with advertisers, sponsors or other organizations. When this type of information is shared, the other parties do not have access to your personally identifiable information.
3. THIRD PARTY OFFERS
We never sell your information, and we will not send communications from any partners or affiliates.
We do not have affiliates.
In the event that our assets are sold or transferred to another party, or another transaction occurs in which your personally identifiable information is one of the business assets transferred, all personally identifiable information that has been collected and saved may be one of the business assets we transfer. We will post a notice on the Service in the event of such a transfer.
6. LEGAL PROCESS AND COMPLIANCE WITH LAWS AND POLICIES
We or others on our behalf may disclose your personal information and any other information collected by the Service to law enforcement agencies and other third parties without notice to you in order to comply with applicable law.
7. THIRD-PARTY AD SERVING AND AUDIENCE AND TRAFFIC MEASUREMENT SERVICES
We may use a third-party network advertiser to serve advertisements on The Downey Profile or may use a traffic measurement service to analyze the traffic on The Downey Profile. Network advertisers are third parties that display advertisements based on your visits to The Downey Profile and other websites you have visited. Third-party ad serving enables us to target advertisements to you for products or websites in which you might have an interest. Audience and traffic measurement services allow us to collect anonymous traffic and behavior information by monitoring anonymous visitor activity. Such advertisers, sponsors and/or traffic measurement services may themselves set and access their cookies on your computer if you choose to have cookies enabled. Other companies’ uses of their cookies are subject to their own privacy policies, not this one.
8. WHEN YOU CONSENT
Other than as described above, your personal information will not be used or processed without your express consent.
You may exercise any of the rights described in this section by sending an email to [email protected] Please note that we may ask you to verify your identity before taking further action on your request.
1. Managing your information: You may access and update some of your information through your subscription settings.
2. Rectification of inaccurate or incompete information: You have the right to ask us to correct inaccurate or incomplete personal information concerning you and which you cannot update yourself within your account settings.
3.Data access and portability: In some jurisdictions, applicable law may entitle you to request copies of your personal information held by us. You may also be entitled to request copies of personal information that you have provided to us in a structured, commonly used, and machine-readable format and/or request us to transmit this information to another service provider where technically feasible.
4. Data retention and erasure: We generally retain your personal information for only as long as is necessary for the performance of the contract between you and us and to comply with our legal obligations. If you no longer want us to use your information to provide service to you, you can request that we erase your personal information and close any accounts by following the instructions in the Contact Us section below. Please note that if you request the erasure of your personal information:
-We may retain some of your personal information as necessary for our legitimate business interests, such as fraud detection and prevention and enhancing safety.
-We may retain and use your personal information to the extent necessary to comply with our legal obligations, such as for tax, legal reporting and auditing obligations.
-Because we maintain records to protect from accidental or malicious loss and destruction, residual copies of your personal information may not be removed from our backup systems for a limited period of time.
5. Withdrawing consent and restriction of processing: Where you have provided your consent to the processing of your personal information by The Downey Profile, you may withdraw your consent at any time by sending a communication to The Downey Profile specifying which consent you are withdrawing. HOWEVER, please note that the withdrawal of your consent does not affect the binding nature and lawfulness of any processing activities based on your consent before its withdrawal.
6. Objection to processing: In some jurisdictions, applicable law may entitle you to require us not to process your personal information for certain specific purposes, including profiling. If you object to such processing, we will no longer process your personal information for these purposes unless we can demonstrate compelling legitimate grounds for such processing or such processing is required for the establishment, exercise or defense of legal claims. Where your personal information is processed for direct marketing purposes, you may, at any time ask us to cease processing your data for these direct marketing purposes by sending a communication to us.
7. Lodging complaints: You have the right to lodge complaints about the data processing activities carried out by The Downey Profile to the appropriate data protection authorities.
OTHER TERMS AND CONDITIONS
We incorporate reasonable safeguards to protect the security, integrity, completeness, accuracy and privacy of the personal information that we may collect, including firewalls and data encryption, and information access controls. If you have reason to believe that your account credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorized use of your account, please contact us following the instructions in the Contact Us section below.
LINKS TO OTHER WEBSITES
INFORMATION YOU MAKE PUBLIC
The Service, including mobile applications and pages we make available through social networking sites such as Facebook, may have features that allow you to post information that can be viewed by other visitors, such as commenting, chat rooms, forums and message boards. You are not required to provide any personal information when using these features but you may choose to do so. If you post personal information online, it will be publicly available and you may receive unsolicited messages from other parties. In addition, when you post a comment to a mobile application, the user name with which you registered for the Service and your current location may be made publicly available on the Service and through the mobile application. We cannot ensure the security of any information you choose to make public using these features, and it may remain available indefinitely. Also, we cannot ensure that parties who have access to such publicly available information will respect your privacy. Please exercise caution when deciding to disclose personal information in these areas.
OUR POLICIES CONCERNING CHILDREN
Our Service is not intended for children under the age of 18 and we do not knowingly collect any personal information from children under the age of 18. In the event that we learn that we have inadvertently gathered personal information from a child under the age of 18, we will take reasonable measures to promptly erase such information from our records.
YOUR CALIFORNIA PRIVACY RIGHTS
California Civil Code Section 1798.83 permits customers of the Service who are California residents to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes. To make such a request, please send an email to [email protected]
CALIFORNIA and VERMONT PRIVACY RIGHTS
We will not share information we collect about you with our affiliates or third parties, both financial and non-financial, except as required or permitted by your state’s law.
TERMS OF SERVICE
Please read carefully. Last updated May 25, 2018.
Please read these Terms carefully as they contain important information about your legal rights, remedies and obligations. These Terms are a legal contract between you and The Downey Profile. By accessing the Service, you agree to be bound by these Terms. If you do not agree to these Terms, please exit the Service and refrain from all further use of it.
Please note: Section 12 of these Terms contains an arbitration clause and class action waiver that apply to all users. Section 12 affects how disputes with The Downey Profile are resolved. By accepting these Terms, you agree to be bound by this arbitration clause and class action waiver. Please read it carefully.
1. SCOPE OF SERVICES
These Terms constitute a legally binding agreement between you and The Downey Profile governing your access to and use of this Website and all services offered by us through the Website, including, without limitation, all mobile, tablet and other smart devices applications and application program interfaces and associated services (collectively, the “Service”). We refer to our employees, directors, officers, contractors, owners, parents, subsidiaries and agents as our “affiliates” throughout these Terms. The terms “you” and “your” refer to all individuals or entities accessing the Service. By using, visiting or accessing the Service, you agree to be bound by these Terms for yourself and any person that uses the Service under your user name. Please read these Terms carefully before accessing and using the Service. If you do not agree with these Terms, do not use our Service.
2. AMENDMENTS, MODIFICATIONS OR UPDATES TO TERMS
The Downey Profile reserves the right to amend, modify or update these Terms at any time in accordance with this provision. If we make changes to these Terms, we will post the revised Terms on the Service and update the “Last Updated” date at the top of these Terms. We may also choose to provide you with notice of the modification by email before the date the revised Terms become effective. If you disagree with the revised Terms, you may cease your use of the Service or cancel any account created through the Service (“Account”). Otherwise, your continued access to or use of the Service will be subject to the revised Terms.
4. ELIGIBILITY; USE OF SERVICE; ACCOUNT VERIFICATION AND CONFIDENTIALITY; SEPARATE TERMS
4.1 Eligibility: You must be at least 18 years old and able to enter into legally binding contracts to access and use the Service. By accessing or using the Service, you represent and warrant that you are 18 or older and have the legal capacity and authority to enter into a contract.
4.2 Use of Service: The Downey Profile may make access to and use of the Service, or certain areas or features of the Service, subject to certain additional conditions or requirements, such as, without limitation, completing a verification process or meeting specific eligibility criteria (i.e., a credit check).
4.3 Account Verification and Confidentiality: User verification on the Internet is difficult and we do not assume any responsibility for the confirmation of any Account user’s identity. Notwithstanding the above, for transparency and fraud prevention purposes, and as permitted by applicable laws, we may (but have no obligation to) ask users to provide additional information for identification or verification purposes as we deem appropriate. You must provide accurate, current and complete information during the registration process and keep your Account up-to-date at all times. You are responsible for maintaining the confidentiality and security of Account credentials and may not disclose your credentials to any third party. You must immediately notify us if you know or have any reason to suspect that your credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorized use of your Account. You are liable for any and all activities conducted through your Account, unless such activities are not authorized by you and you are not otherwise negligent (such as failing to report the unauthorized use or loss of your credentials).
4. Separate Terms: The access to or use of certain areas and features of the Service may be subject to separate policies, standards or guidelines, or may require that you accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions applicable to a specific area or feature of the Service, the latter terms and conditions will take precedence with respect to your access to or use of that area or feature, unless specified otherwise.
5.1 Proprietary Rights: The Service may, in its entirety or in part, be protected by copyright, trademark, and/or other laws of the United States. You acknowledge and agree that the Service, including all associated intellectual property rights, are the exclusive property of The Downey Profile and/or its licensors or authorizing third parties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service. All trademarks, service marks, logos, trade names, and any other source identifiers of The Downey Profile used on or in connection with Service are trademarks or registered trademarks of The Downey Profile in the United States. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the Service are used for identification purposes only and may be the property of their respective owners.
5.2 Prohibited Uses: You will not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Service. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by The Downey Profile or its licensors other than for the limited license to (i) use the Service on your personal device(s), and (ii) access and view any content made available through the Service and accessible to you, solely for your personal and non-commercial use.
5.3 License: By creating, uploading, posting, sending, receiving, storing, or otherwise making available any user content on or through the Service, you grant to The Downey Profile a non-exclusive, worldwide, royalty-free, irrevocable, perpetual (or for the term of the protection), sub-licensable and transferable license to such user content, to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, stream, broadcast, and otherwise exploit in any manner such user content to provide and/or promote the Service, in any media or platform.
5.4 Prohibited User Conduct: You will not post, upload, publish, submit or transmit any user content that: (i) is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive; (ii) is defamatory, libelous, obscene, pornographic, vulgar or offensive; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening or promotes violence or actions that are threatening to any other person or animal; (v) promotes illegal or harmful activities or substances; or (vi) violates any The Downey Profile policy or standard. The Downey Profile may, without prior notice, remove or disable access to any user content that The Downey Profile finds to be in violation of these Terms or the The Downey Profile's then-current policies or standards, or otherwise may be harmful or objectionable to The Downey Profile, its users, third parties, or property.
5.5 Copyright Law: The Downey Profile respects copyright law and expects you to do the same. If you believe that any content on the Service infringes copyrights you own, please notify us immediately by following the instructions provided in the Contact Us section of these Terms.
6. RULES OF CONDUCT
We expect users of the Service to respect the law and the rights and dignity of others. While using the Service, you agree to comply with all applicable laws, rules and regulations. In addition, your use of the Service is conditioned on your compliance with the rules of conduct set forth in these Terms and failure to comply may result in termination of your access to the Service. If we are made aware of any information or materials posted, transmitted or otherwise made available through or in connection with the Service that may be a violation of any law, regulation or right of a third party, or a violation of these Terms, we have the right, but not the obligation, to remove or disable access to the respective information or materials. Any act or use by you that violates any of the above agreements is strictly prohibited and shall be a material breach of these Terms.
7. PROFILES AND FORUMS AND SUBMISSIONS
7.1 Profiles and Forums: If we choose to make the option available, you may post certain information and materials in connection with the Service or through our social media pages or sites (your “Profile”). Further, we may offer features through the Service that enable you to post information, photographs and other materials and images publicly (collectively referred to herein as “Forums”). All of the rules of conduct above and elsewhere in these Terms apply to Profiles and Forums. Additionally, without our express prior written consent, you may not use Profiles or Forums for any commercial purposes, including the promotion or advertisement of any goods, services or opportunities, and you may not use Profiles or Forums to solicit other visitors or users to visit or become members of, subscribe to or register with any commercial online service or other organization.
7.2 Limitation of Liability: Information contained in the Profiles and Forums may be provided by third party visitors to the Service, which may be inaccurate, misleading or deceptive. The Downey Profile, its affiliates and their respective employees, officers, directors, owners, agents, representatives, licensors, suppliers and service providers neither endorse nor are responsible for any opinion, advice, information or statements made in the Profiles and Forums by third parties. Under no circumstances will The Downey Profile, its affiliates, or their respective employees, officers, directors, owners, affiliates, agents, representatives, licensors, suppliers or service providers be liable for any loss or damage caused by your reliance on such information or materials. The opinions expressed in the Profiles and Forums reflect solely the opinions of the individuals who submitted such opinions, and may not reflect the opinions of The Downey Profile.
7.3 Public Nature of Content: You acknowledge and agree that, to the fullest extent permitted by applicable law, we have no control over, and shall have no liability for any damages resulting from, the use (including without limitation re-publication) or misuse by any third party of information voluntarily made public through Forums or any other part of the Service. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONALLY IDENTIFIABLE OR OTHER INFORMATION PUBLICLY AVAILABLE IN A PROFILE OR A FORUM OR OTHERWISE ON THE SERVICE OR OTHER SOCIAL MEDIA, YOU DO SO AT YOUR OWN RISK.
8. DISCLAIMER OF WARRANTIES
8.1 AS IS: While we try to maintain the security of the Service, we do not guarantee that the Service will be secure or that any use of the Service will be uninterrupted. THE SERVICE IS PROVIDED “AS IS.”
8.2 Disclaimer: TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DOWNEY PROFILE AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND THE USE THEREOF, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICE CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THE SERVICE AND ASSUME NO RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM ACCESS TO AND USE OF THE SERVICE, (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (V) ANY OTHER LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA THE SERVICE. YOU UNDERSTAND THAT YOU USE THE SERVICE AT YOUR OWN RISK.
9. Limitation of Liability
IN NO EVENT SHALL THE DOWNEY PROFILE, ITS AFFILIATES OR THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, OWNERS OR AGENTS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES) RESULTING FROM USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ANY (I) ERRORS, MISTAKES OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM ANY VISITOR’S ACCESS TO AND USE OF THE SERVICE, (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. IF ANY PART OF THIS LIMITATION OF LIABILITY IS INVALID, ILLEGAL OR UNENFORCEABLE, THEN THE AGGREGATE LIABILITY OF THE DOWNEY PROFILE AND OUR AFFILIATES AND THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, OWNERS AND AGENTS UNDER SUCH CIRCUMSTANCES TO YOU OR TO ANYONE ELSE WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.00). SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU IF THEY ARE NOT PERMITTED BY THE LAWS OF YOUR JURISDICTION.
You agree to indemnify The Downey Profile and its affiliates and their respective employees, officers, directors, owners, and agents for all damages, liabilities, costs, charges and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (1) your breach of these Terms, (ii) your improper use of the Service (or any part thereof), (3) your breach of any applicable laws, regulations or third party rights.
11. CONTACT US
If you have any questions about these Terms, please contact:
The Downey Profile
1320 Edgewood Avenue
Bowling Green, KY 42103
12. DISPUTE RESOLUTION
12.1 Agreement: You and The Downey Profile agree that we will resolve 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 connected in any manner with use of the Service (a “Claim”) in accordance with one of the subsections below or as The Downey Profile and you otherwise agree in writing.
12.2 Conflicts of Laws; Jurisdiction; Venue: These Terms and the relationship between you and The Downey Profile with respect to the Service shall be governed by the laws of the Commonwealth of Kentucky without regard to the conflicts of laws rules thereof. Except as otherwise provided under this Dispute Resolution Section, you and The Downey Profile agree to submit to the personal and exclusive jurisdiction and proper venue of the Warren Circuit Court and/or the United States District Court for the Wester District of Kentucky, in each case in Bowling Green, Warren County, Kentucky, and waive any right to trial by jury.
12.3 Arbitration: Any Claim shall be referred to final and binding arbitration before a single arbitrator in Bowling Green, Kentucky, or closet location to Bowling Green, Kentucky, with such an arbitrator, under the rules and procedures of the American Arbitration Association relating to the selection of arbitrators for the determination of issues. The arbitration shall be governed by the United States Federal Arbitration Act, 9 U.S.C. §§ 1-16. 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 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).
12.4 Waiver: Neither you nor The Downey Profile will participate in a class action or class-wide arbitration for any Claims covered by this agreement to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS.
12.5 Improperly Filed Claims: All Claims brought under this Section must be resolved in accordance with this Dispute Resolution Section. All Claims filed or brought contrary to this Section shall be considered improperly filed. Should you file a Claim contrary to this Section, The Downey Profile shall be entitled to recover its reasonable attorneys' fees, costs and expenses actually incurred, provided that The Downey Profile has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
12.6 Survival: Subject to Section 14.1, this Section 12 shall survive any termination of these Terms and will continue to apply even if you stop using the Service or terminate your Account.
13.2 Survival: Unless prohibited by applicable law, the provisions of these Terms that should reasonably survive termination will remain in effect, including, without limitation, Sections 8 through 14.
14.1 Severability: In the event that any portion of these Terms is held to be invalid, the invalidity of such provision will not affect the validity of the remaining provisions of the Terms, which will remain in full force and effect.
14.3 No Waiver: The failure of The Downey Profile to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
14.4 Limitations Period: Any claim or cause of action arising out of or related to use of the Service or these Terms must be filed within one year after such claim or cause of action arose or be forever barred unless a longer period is mandated by applicable statute and, in such a case, you are limited to the maximum period permitted by law.
14.5 Section Titles: The section titles in these Terms are for convenience only and have no legal or contractual effect.
14.6 Lawful Use: The Downey Profile makes no claims that the content of the Service may be lawfully viewed or downloaded outside of the United States. Access to the content may not be legal by certain persons or in certain countries. If you access the Service from outside of the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction.
14.8 Third Party Websites: The Service may contain links to third party websites. These links are provided solely as a convenience and not as an endorsement of the contents on such third party websites. The Downey Profile is not responsible for the content of linked third party websites. Any charges or obligations you incur in your dealings with these third parties are your responsibility. The Downey Profile makes no 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 are 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 The Downey Profile of any linked sites. We shall have the right, at any time and at our sole discretion, to block links to the Service through technological or other means without prior notice. YOU AGREE THAT YOUR USE OF THIRD PARTY SITES AND RESOURCES AND ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, SERVICES OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH SITES AND RESOURCES IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES.