BoomPlayer End User Agreement
This end user agreement (the "Agreement") should be read by you (the "User" or "you") in its entirety prior to your use of BoomPlayer's service or products. Please note that the Agreement constitutes a legally binding agreement between you and Rational Instruction Services Limited (referred to herein as "BoomPlayer", "us" or "we") which owns and operates the Internet site found at www.BoomPlayer.com (the "Site").
As some of the services and products provided by the Site are available also to those who are not BoomPlayer Members (as defined in clause 1.1 of the General Terms below), the terms and conditions of this Agreement also apply, mutatis mutandis, to those users who use the Site without prior registration.
1. General Terms
1.1 Subject to the terms and conditions contained herein BoomPlayer grants you a non-exclusive, personal, non-transferable right to use the BoomPlayer services, products and content provided on the Site, including text, images, pictures, graphics, photographs, animations, videos, music and audio (the "Site Content") for the sole purpose of enabling you to use and enjoy the Site (all together: the "Service"). Any person who has completed the process of registration on the Site is referred to herein as a "BoomPlayer Member".
1.3 The Service is not for use by (i) individuals under 18 years of age, (ii) individuals under the legal age of majority in their jurisdiction (each of the above referred to herein as "minors"), or (iii) individuals connecting to the Site from jurisdictions from which it is illegal to do so. BoomPlayer is not able to verify the legality of the Service in each jurisdiction and it is the User's responsibility to verify such matters.
1.4 We reserve the right at any time to request evidence of age in order to ensure that minors are not using the Service. We further reserve the right to suspend or cancel your account and exclude you, temporarily or permanently, from using the Service if satisfactory proof of age is not provided or if we suspect that you are a minor.
1.5 The Service is intended solely for the User's personal use. A User may only have one account with BoomPlayer and shall only use the Service by means of such single account. Furthermore a User shall not permit another person to use the Service via his account.
1.6 BoomPlayer retains authority over the issuing, maintenance, and closing of Users' accounts with BoomPlayer. The decision of BoomPlayer's management, as regards any aspect of a User's account, use of the Service, or dispute resolution, is final and shall not be open to review or appeal.
1.7 You expressly allow BoomPlayer to make the following information about you available to other users of the Site (whether registered or not) as part of your public profile: your User ID, the date on which you registered on the Site , the time you last logged in to the Site, the country of your residence, the avatar you chose, your personal image, your "message" to the other users.
2. No Warranties
2.1 To the fullest extent permitted by law, BoomPlayer disclaims any and all warranties, expressed or implied, in connection with the Service (including the Site Content) which is provided to you "AS IS" and we provide you with no warranty or representation whatsoever regarding its quality, fitness for purpose, completeness or accuracy.
2.2 The Site Content may include legal information regarding different aspects of the game of poker. This information is provided to you as general background and does not constitute, nor is it intended as, legal advice. We strongly recommend that you consult with a qualified attorney in respect of any specific matter.
2.3 Regardless of our efforts to provide you with services of the highest quality, safety and security, we make no warranty that the Service will be uninterrupted, timely or error-free, that defects will be corrected or that the services found therein shall be free from viruses or bugs.
2.4 BoomPlayer reserves the right to suspend, discontinue, modify, remove or add to the Service and to the Site Content in its absolute discretion with immediate effect and without an obligation to provide you with notice and we shall not be liable in any way whatsoever for any loss suffered as a consequence of any decision made by BoomPlayer in this regard.
2.5 You agree that under no circumstances will BoomPlayer, or any of its Group Companies, be liable or responsible for (a) any loss or damage suffered by any User arising from any information provided to, contained on or omitted from the Site (including Your Content as defined below and the Site Content); (b) any User's reliance on the Site Content, whether or not the Site Content is correct, current or complete, (c) the consequences of any action you or any other person takes or fails to take, whether or not based on the Site Content or as a result of the use of the Site.
3. Intellectual Property
3.1 The term "BoomPlayer" and any other trade marks, service marks and/or trade names used by BoomPlayer on the Site from time to time (the "Trade Marks"), are the trade marks, service marks and/or trade names of BoomPlayer or one of its Group Companies and/or its licensors, and these entities reserve all rights to such Trade Marks. You hereby acknowledge that you acquire no rights in or to such Trade Marks. Under no circumstances may you use the Trade Marks without BoomPlayer's prior written consent.
3.2 The Site Content belongs to BoomPlayer (or, as may be applicable, one of its Group Companies) and is protected by copyright and/or other intellectual property or other rights. You hereby acknowledge that by using the Service and the Site you obtain no rights in the Site Content, or any part thereof. Under no circumstances may you use the Site Content without BoomPlayer's prior written consent.
3.3 You may use the Site Content for your own personal use and research. You may not republish, retransmit, redistribute or otherwise make the material available to any other party or make the same available on any website, online service or bulletin board of your own or of any other party or make the same available in hard copy or on any other media without BoomPlayer's express prior written approval.
4. Forums, Chats and Blogs
4.1 As part of the Service BoomPlayer offers you the opportunity to upload historical data concerning games played on sites owned by a Group Company ("Historical Data") as well as to post messages regarding poker on the Site's forums, chats and blogs (together: the "Discussion Services"). Each User must fully comply with and adhere to the following provisions in order to access and use the Discussion Services. A User's access to or use of the Discussion Services will be deemed to express his or her unreserved acceptance of all of the provisions contained herein.
4.2 Users are prohibited from posting any unlawful, obscene, libellous, defamatory, threatening, personal or private information of or about other people or other material that would violate any law or generally be considered to be offensive. This general rule also applies when a User uses the BoomPlayer Member's images option or in correspondence with BoomPlayer's staff.
4.3 Users are prohibited from making any statements which promote any service or product of any party except BoomPlayer. Furthermore, Users shall not make statements about BoomPlayer, its Group Companies or the Service that are untrue or would reasonably be considered to be derogatory or critical.
4.4 The Discussion Services are for personal and non-commercial use only. The following uses of the Discussion Services are, without limitation, prohibited: (a) advertising or selling any products, services or otherwise (whether or not for profit) soliciting others or using the Discussion Services for commercial purposes of any kind; or (b) posting on or transmitting through the Discussion Services any messages or comments for commercial purposes of any kind including, without limitation, advertisements, surveys, contests, pyramid schemes, chain letters, charity requests, petitions for signatures, junk email, spamming or any duplicative or unsolicited messages (commercial or otherwise).
4.5 Users may not use the Discussion Services to collect or harvest personal information about other Users, including Internet addresses, for the purpose of sending any advertisements, surveys, contests, pyramid schemes, chain letters, charity requests, petitions for signatures, junk email, spamming or any duplicative solicitations through other means (email, messaging programs, etc).
4.6 Users are prohibited from using the Discussion Services for posting content which contains software, programs or application which may damage or adversely affect the software or hardware of the Site or of other users.
4.7 Any of the aforementioned prohibited uses of the Discussion Services shall be deemed a material breach of this Agreement and BoomPlayer shall be permitted, in its sole discretion, to take any legal or technical action it deems appropriate with respect to the same, including temporarily or permanently blocking of the User's account.
4.8 Each User is solely responsible for the accuracy and legality of his own postings on the Discussion Services and each User will be solely liable for any false, misleading, inaccurate, defamatory, infringing or other actionable material contained or referred to therein. By posting any content on the Site (other than the Historical Data) you warrant that you have full rights to post that content on the Site, and that the Site's use of that content does not violate any third party's rights, breach any obligation of confidentiality, or violate any law in your jurisdiction.
4.9 BoomPlayer reserves the right to monitor all postings made by Users and to delete or amend, without prior notice, such postings as it sees fit and Users shall have no claims whatsoever against BoomPlayer in such regard. However, BoomPlayer shall not be obliged to take any action in respect of any content posted to the Site.
4.10 Further, BoomPlayer reserves the right to permanently block access to the Discussion Services to those Users who repeatedly or materially breach the provisions herein. BoomPlayer's decision in relation to complaints received with respect to your use of the Discussion Services shall be final and not open to review or appeal.
4.11 As BoomPlayer cannot, and does not undertake to monitor all postings made by Users, any Users who register a complaint about postings made to the Discussion Services may write to BoomPlayer at support@BoomPlayer.com , clearly explaining the nature of the complaint. BoomPlayer's decision in relation to complaints received shall be final and not open to review or appeal.
4.12 BoomPlayer does not warrant the accuracy or veracity of any material or information on the Discussion Services, the responsibility for which rests solely with Users. Each User accepts that the Discussion Services and the materials therein are posted and provided "AS IS" with any faults or failings and without any representation, warranty or guarantee whatsoever, express or implied, including without limitation any implied warranty of accuracy, completeness, quality, merchantability, fitness for a particular purpose or non-infringement.
4.13 To the extent that such rights vest in you, you retain your rights to any content that you submit or upload to, or post or display on the Site using the Discussion Services ("Your Content"). By submitting, posting, uploading and/or displaying Your Content, you grant BoomPlayer a perpetual, worldwide, non-exclusive, royalty-free licence (with the right to sublicense) to use, copy, reproduce, process, modify, adapt, distribute, publish, transmit, display, distribute and reproduce Your Content in any way (including for commercial purposes) and in any media or distribution method (whether now known or in the future developed) without any compensation being paid to you. You agree that this license includes the right for BoomPlayer to make Your Content available to other companies, organizations or individuals for its syndication, distribution, publication or broadcast on any media or distribution method (whether now known or in the future developed), or in connection with any other services, subject to the terms of this Agreement.
4.14 You are responsible for the consequences of us or any third party using Your Content, and neither BoomPlayer nor any of its Group Companies shall have any liability in this regard. You acknowledge that Your Content may be displayed, republished or rebroadcast on third party sites or other third party media. You may be subject to liability if you do not have the right to make Your Content available for such use.
4.15 Each User agrees to indemnify and keep indemnified BoomPlayer and its Group Companies and each of their respective directors, officers, employees and agents from and against any and all liability, damages, losses, claims (including reasonable legal fees) resulting in any way from:
a. his or her use of any content submitted or uploaded to, or posted or displayed on the Discussion Services or from any other matter relating thereto; and
b. any use by BoomPlayer or its Group Companies of Your Content.
4.16 Furthermore, to the maximum extent permitted by law, BoomPlayer and its Group Companies and their respective directors, officers, agents and employees will not be liable for any direct, indirect, incidental, special, consequential or punitive damages (including but not limited to loss of profits, data, goodwill) or any intangible losses, resulting from:
a. your access to or use of the Discussion Services or any material posted on the Discussion Services;
b. any content obtained through your use of the Discussion Services;
c. any unauthorised access, use or alteration to contributions that you have made to the site through the Discussion Services; or
d. any conduct or contribution to the Discussion Services made by you or other users or any third party, including without limitation any defamatory, offensive or illegal conduct by you or other users or third parties, whether based on warranty, contract or tort and regardless of whether or not BoomPlayer or any of its Group Companies has been informed of the possibility of such damage.
5.1 Without prejudice to any other of BoomPlayer's rights, if a User breaches in whole or in part any provision contained herein, BoomPlayer reserves the right to take such action as it sees fit, including terminating this Agreement, immediately blocking access to the Service to such User, terminating such User's account with BoomPlayer, or taking legal action against such User.
5.2 Without prejudice to Clause 4.14 you agree to fully indemnify, defend and hold harmless BoomPlayer and its shareholders, directors and employees from and against all claims, demands, liabilities, damages, losses, costs and expenses, including legal fees and any other charges whatsoever, howsoever caused, that may arise as a result of:
a. your breach of this Agreement, in whole or in part;
b. violation by you of any law or any third party rights; and
c. use by you of the Service or use by any other person accessing the Service using your Login Credentials (as defined below) , whether or not with your authorization.
6. Limitation of Liability
6.1 Without prejudice to Clause 4.16, under no circumstances, including negligence, shall BoomPlayer or any of its Group Companies be liable for any special, incidental, direct, indirect or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use (or misuse) of the Site, the Site Content or the Service even if BoomPlayer had prior knowledge of the possibility of such damages.
6.2 Nothing in this Agreement shall limit a party's liability for:
a. personal injury or death caused by their negligence;
b. theft or fraud by that party; or
c. any other liability which cannot be excluded under the laws of the applicable jurisdiction.
7. Security and Your Account
7.1 Each User account on BoomPlayer shall be accessible through the use of a combination of a unique User ID ("User ID") and a unique and secret password ("Password"), (the User ID and the Password together being referred to as the "Login Credentials").
7.2 The User agrees that he/she is solely responsible for all use of the Service under his/her Login Credentials and that he/she shall not disclose the Login Credentials to any person whatsoever.
7.3 The User shall keep his/her Login Credentials secret and confidential at all times and make all efforts to protect their secrecy and confidentiality. Any unauthorized use of the Login Credentials shall be the sole responsibility of the User and be deemed as his/her use and he/she shall bear any liability resulting therefrom.
BoomPlayer reserves the right to update or modify this Agreement or any part hereof at any time without notice and you will be bound by such amended Agreement within 14 days of it being posted on the Site. Therefore, we encourage you to visit the Site regularly and check the terms and conditions contained in the version of the Agreement in force at such time. Your continued use of the Site shall be deemed to attest to your agreement to any amendments to the Agreement.
9. Governing Law
The Agreement and any matters relating hereto shall be governed by, and construed in accordance with, the laws of the Isle of Man, excluding those provisions pertaining to conflict of laws. Each party irrevocably agrees that the relevant courts of the Isle of Man shall have exclusive jurisdiction in relation to any claim, dispute or difference concerning the Agreement and any matter arising therefrom and irrevocably waives any right that it may have to object to an action being brought in those courts, or to claim that the action has been brought in an inconvenient forum, or that those courts do not have jurisdiction.
If a provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, this shall not affect the validity or enforceability in that jurisdiction of any other provision hereof or the validity or enforceability in other jurisdictions of that or any other provision hereof. If any provision is void but would be valid if some part of the provision were deleted or amended, the provision in question shall apply with such modification as may be necessary to make it valid.
BoomPlayer reserves the right to assign this agreement, in whole or in part, at any time without notice. The User may not assign any of his/her rights or obligations under this Agreement.
12.1 No waiver by BoomPlayer of any breach of any provision of this Agreement (including the failure of BoomPlayer to require strict and literal performance of, or compliance with, any provision of this Agreement) shall in any way be construed as a waiver of any subsequent breach of such provision or of any breach of any other provision of this Agreement.
12.2 Except in respect of Group Companies, nothing in this Agreement shall create or confer any rights or other benefits in favour of any third parties not party to this Agreement.
12.3 Nothing in this Agreement shall create or be deemed to create a partnership, agency, trust arrangement, fiduciary relationship or joint venture between you and us.
12.4 This Agreement constitutes the entire understanding and agreement between you and us regarding the Service and supersedes any prior agreement, understanding, or arrangement between you and us.
12.5 The English language version of this Agreement shall be the prevailing version in the event of any discrepancy between any translated versions of this Agreement.
Isle of Man, June 2011