Revised: August 1, 2019
Revised: August 1, 2019
- ACCEPTANCE OF TERMS
PLEASE REVIEW THE TERMS CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU ARE ENTERING INTO THE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND SUCH ENTITY TO THE TERMS, IN WHICH CASE THE TERM “YOU” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICE, AND YOU MUST UNINSTALL ANY COMPONENTS OF THE SERVICE FROM ANY DEVICE WITHIN YOUR CUSTODY OR CONTROL.
THE TERMS REQUIRES BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THE TERMS OR YOUR ACCESS TO OR USE OF THE SERVICE, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THE TERMS (EACH, A “CLAIM”), AND YOU AGREE THAT ANY SUCH CLAIM SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 22 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
- Additional Terms; SUPPORT
- Except as explicitly agreed by HorseWise in any applicable Additional Terms, HorseWise is not obligated to provide you any support for the Service, and the Terms does not entitle you to any support for the Service.
- Grant of Rights
- HorseWise grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and view pages within the Service.
- To the extent that the Service provides access to any online software, applications or other similar components, HorseWise grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use such components only within the Service and only in the form found within the Service.
- HorseWise grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install, run and use the Apps on a device that you own and control, in executable, machine-readable, object code form only.
- All rights granted to you under this Terms are subject to your compliance with the Terms and all Additional Terms in all material respects and may only be exercised by you for your personal, non-commercial use or internal business purposes.
- IOS Mobile Apps
- If any App is downloaded by you from the iTunes App Store (each, an “iOS App”), the license in Section 3(c) with respect to such iOS App is further subject to your compliance in all material respects with the terms and conditions of the Usage Rules set forth in the iTunes App Store Terms of Service.
- With respect to any iOS App, you and HorseWise acknowledge that this Terms is concluded between you and HorseWise only, and not with Apple Inc. (“Apple”), and Apple is not responsible for iOS Apps and the contents thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to iOS Apps. HorseWise, not Apple, is responsible for addressing any claims from you or any third party relating to iOS Apps or your possession and/or use of iOS Apps, including product liability claims, any claim that iOS Apps fail to conform to any applicable legal or regulatory requirement and claims arising under consumer protection or similar legislation. Apple and Apple’s subsidiaries are third-party beneficiaries of this Terms with respect to iOS Apps, and Apple shall have the right (and will be deemed to have accepted the right) to enforce this Terms against you as a third-party beneficiary hereof with respect to iOS Apps. HorseWise, not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any intellectual property infringement claim attributable to iOS Apps.
- Third Party Software
Some components of the Service may be provided with or have incorporated into them third-party software licensed under open source license agreements (“Open Source Software”) or other third-party license terms (together with Open Source Software, “Third-Party Software”). You acknowledge and agree that: (a) HorseWise has no proprietary interest in any Third-Party Software; (b) notwithstanding anything to the contrary, any Third-Party Software is provided “as is,” “as available,” with all faults; (c) neither the licensor of Open Source Software nor HorseWise shall be liable for any direct, indirect, incidental, special, punitive or consequential damages, or lost profits or cost of cover, relating to or arising from Open Source Software, including any access to or use of Open Source Software; and (d) Third-Party Software may be subject to separate terms and conditions set forth in the respective license agreements relating to such software.
- YOUR Representations AND WARRANTIES
You represent, warrant and covenant that: (i) you are over eighteen (18) years of age or the age of majority in your jurisdiction, whichever is greater; (ii) you are of legal age to form a binding contract; (iii) you are not a person barred from using the Service under the laws of your country of residence or any other applicable jurisdiction; (iv) you are permitted to legally work within the applicable jurisdiction (if you are a Provider); (v) neither you nor any member of your household may have ever been the subject of a complaint, restraining order or any other legal action involving, arrested for, charged with, or convicted of any felony, any criminal offense involving violence, abuse, neglect, fraud or larceny, or any offense that involves endangering the safety of others, dishonesty, negligence or drugs, (vi) neither you nor any member of your household may have ever been registered, or currently required to register, as a sex offender with any government entity; (vii) you are not located in a country that is subject to a U.S. Government embargo or designated by the U.S. Government as a “terrorist supporting” country; and (viii) you are not listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.
- Registration and Account
- HorseWise may enable you to access and browse the Service without registering, but some features may not be accessible unless you register. In registering for the Service, you agree to: (i) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or HorseWise reasonably suspects that you have done so, HorseWise may suspend or terminate your account.
- We may offer may a service that facilitates the payment of Providers by Requesters via Stripe. These payment processing services are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the "Stripe Services Agreement"). By agreeing to these Terms, Providers that use the payment service also agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of HorseWise enabling payment processing services through Stripe, you authorize HorseWise to share with Stripe certain Registration Data and transaction information related to your use of the payment processing services provided by Stripe. HorseWise assumes no liability or responsibility for any payments you may make through this service, and all such payments are non-refundable.
- You may not share your account or password with anyone. You are fully responsible for all activities that occur under your account, whether or not you authorized the particular use or user, and regardless of your knowledge of such use. You agree to notify HorseWise immediately of any unauthorized use of your account or password or any other similar breach of security.
- If your account remains inactive for an extended period of time, HorseWise reserves the right to suspend or terminate your account, with or without notice to you, and delete your Content (as defined in Section 9(a)), all without liability to you.
- Background checks
- Background Checks. HorseWise may offer registered Providers and Requesters background check services from third-party consumer reporting agencies ("Background Checks"). All Background Checks require payment of a separate fee by the entity who is initiating the background check request and are subject to the consent of the Provider on whom the check is being performed. Background Checks are regulated by the Fair Credit Reporting Act ("FCRA"), and the background reports resulting from these services are considered "consumer reports" under FCRA. Consumer reports may contain information on your character, general reputation, personal characteristics, and mode of living, including but not limited to consumer credit, criminal history, workers' compensation, driving, employment, military, civil, and educational data and reports. HorseWise will receive a copy of each Background Check. If you authorize a Background Check in response to a request by a Requester, we (or the third-party reporting agency) will provide both you and the Requester user who ordered the check the ability to retrieve the report from the consumer reporting agency that performed the check. If you are a Provider who has ordered a Background Check from a third-party consumer reporting agency through HorseWise, we may indicate in your profile that you have completed that check. However, we will not share the results with any other Service user without your authorization.
- Fair Credit Reporting Act. The use of any background check reports obtained through the Service is governed by the FCRA and certain state laws. If you order or request access to background check on a Provider, you are considered an end user of the background check and may be required to agree to an additional certification that you will comply with the FCRA and any applicable state laws before the background check will be. A summary of your responsibilities in using the information contained the background check can be found http://www.ftc.gov/tips-advice/business-center/guidance/using-consumer-reports-what-employers-need-know. If there is negative data in a check you receive, and you choose to take "adverse action" (i.e. if you choose to pass on that individual's candidacy) on the basis of this negative data, you must agree to take certain procedural steps, which can be found at http://www.ftc.gov/tips-advice/business-center/guidance/using-consumer-reports-what-employers-need-know. These include notifying the individual who is the subject of the report of your decision to take adverse action based on information contained in the report and the subject's right to contest the accuracy or completeness of the report. If the subject contests the report with the consumer reporting agency, you are required to suspend the hiring process while the agency researches the accuracy and completeness of the report.
- Use of Background Checks by HorseWise. BY REGISTERING FOR AND USING THE SERVICES AS A PROVIDER, AND SUBJECT TO YOUR AUTHORIZATION, YOU ACKNOWLEDGE AND AGREE THAT HORSEWISE MAY REVIEW AND USE ANY BACKGROUND CHECKS YOU HAVE ORDERED OR AUTHORIZED ABOUT YOURSELF FOR THE PURPOSE OF PROTECTING THE SAFETY AND INTEGRITY OF OUR SERVICE AND ITS USERS, WHICH MAY, IN THE CASE OF CERTAIN PROVIDERS, BE CONSIDERED AN EMPLOYMENT PURPOSE PURSUANT TO THE FCRA. HORSEWISE RESERVES THE RIGHT TO TERMINATE YOUR ACCOUNT BASED ON THE INFORMATION CONTAINED IN SUCH REPORT, EVEN IF SUCH INFORMATION WAS SUBSEQUENTLY DISMISSED. If HorseWise terminates your registration or access to the Service on the basis of information in a Background Check, we will notify you and provide you the name and contact information of the consumer reporting agency that created the report. We will also provide you a copy of the report unless the consumer reporting agency has already provided you a copy or access to it. You hereby represent, understand and expressly agree that HorseWise does not have control over or assume any responsibility for the quality, accuracy, or reliability of the information included in these Background Checks. Furthermore, any inaccuracies in the report must be addressed with the consumer reporting agency that issued it and not HorseWise. Notwithstanding this, you agree that HorseWise is under no obligation to reinstate any accounts it may have terminated even if the information that led to the termination is subsequently changed or corrected.
- Internal Background Checks. BY REGISTERING FOR AND USING SERVICES YOU HEREBY ACKNOWLEDGE AND AGREE THAT HORSEWISE HAS THE RIGHT, BUT NOT THE OBLIGATION, TO USE A THIRD-PARTY CONSUMER REPORTING AGENCY ON AN ONGOING BASIS TO USE YOUR PERSONAL INFORMATION TO RUN PERIODIC BACKGROUND SCREENINGS ON YOU FOR THE PURPOSE OF PROTECTING THE SAFETY AND INTEGRITY OF OUR ONLINE PLATFORM AND ITS USERS ("INTERNAL BACKGROUND CHECKS"), WHICH MAY, IN THE CASE OF CERTAIN PROVIDERS, BE DEEMED TO BE AN EMPLOYMENT PURPOSE UNDER THE FCRA. Subject to certain additional disclosures and authorizations, if applicable to you as a Provider, HorseWise may order these screenings when you register with HorseWise and thereafter in connection with your continued use of the Service. These Internal Background Checks are also regulated by FCRA, and the background reports resulting from these services are considered "consumer reports" under FCRA. You understand and agree that HorseWise may review the information provided by the third-party consumer reporting agency and that HorseWise retains the right to terminate your account based on the information it receives from these checks, even if such information was subsequently changed or corrected. If HorseWise terminates your account or access to the Service on the basis of information in a background report, we will notify you and provide you the name and contact information of the consumer reporting agency that created the report. We will also provide you a copy of the report unless the consumer reporting agency has already provided you a copy or access to it. You hereby represent, understand and expressly agree that HorseWise does not have control over or assume any responsibility for the quality, accuracy, or reliability of the information included in these checks. Furthermore, any inaccuracies in the report must be addressed with the consumer reporting agency that issued it and not HorseWise. Notwithstanding this, you agree that HorseWise is under no obligation to reinstate any accounts it may have terminated even if the information that led to the termination is subsequently changed or corrected.
- Verification Checks. BY REGISTERING FOR THE SERVICE, AND, IF APPLICABLE TO YOU AS PROVIDER, SUBJECT TO YOUR ADDITIONAL AUTHORIZATION, YOU AUTHORIZE HORSEWISE, AND ACKNOWLEDGE THAT FOR PURPOSES OF PROMOTING THE SAFETY AND INTEGRITY OF ITS SERVICE, HORSEWISE RESERVES THE RIGHT, BUT NOT THE OBLIGATION, TO UTILIZE THIRD PARTY SERVICE PROFESSIONALS TO VERIFY ON AN ONGOING BASIS THAT YOUR REGISTRATION DATA IS ACCURATE AND THAT THE REPRESENTATIONS AND WARRANTIES IN THESE TERMS ADDRESSING LEGAL MATTERS SUCH AS COMPLAINTS, ARRESTS, SEX OFFENDER STATUS, ETC. ARE ALSO TRUE ("VERIFICATION CHECKS"). These third parties may use data from a variety of sources, under a variety of circumstances, including, without limitation, information from national criminal databases, sex offender registries, certain media streams, terrorist watch lists, criminal and fugitive watch lists, fraud watch lists, law enforcement reports, and other data. You agree that HorseWise may take such action in response to Verification Checks as it deems appropriate in its sole discretion, including suspending and/or terminating your account membership. You also hereby represent, understand and expressly agree that HorseWise does not have control over or assume any responsibility for the quality, accuracy, or reliability of the information included in a Verification Check. We do not typically communicate the results of a Verification Check to any third party, though we reserve the right to do so for law enforcement or other safety-related purposes in accordance with applicable laws.
- Release and Indemnification. Even the most comprehensive background check offered may not disclose the existence of all criminal records in all jurisdictions. If you decide to access, use, or share information provided by a Background Check, you agree to do so in accordance with applicable law. You also agree to release, indemnify and hold harmless HorseWise from any loss, liability, injury, death, damage, or costs that may result from your use of, reliance on, or sharing of the information contained in a Background Check regardless of the cause, including, without limitation, due to the inaccuracy or incompleteness of any such information. You expressly acknowledge that HorseWise has no obligation to perform Background Checks, Internal Background Checks, or Verification Checks on any users. To the extent HorseWise performs such checks on certain users, the checks are limited and should not be taken as complete, accurate, up-to-date or conclusive evidence of the accuracy of any information those users have provided or of their eligibility to use the Services.
- RESPONSIBILITY FOR CONTENT
- You acknowledge and agree that all information, data, data records, databases, text, software, music, sounds, photographs, images, graphics, videos, messages, scripts, tags and other materials accessible through the Service, whether publicly posted or privately transmitted (“Content”), are the sole responsibility of the person from whom such Content originated. This means that you, and not HorseWise, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available through the Service (“Your Content”), and other users of the Service, and not HorseWise, are similarly responsible for all Content they upload, post, email, transmit or otherwise make available through the Service (“User Content”).
- You acknowledge and agree that HorseWise has no obligation to pre-screen Content (including Your Content and User Content), although HorseWise reserves the right in its sole discretion to pre-screen, refuse or remove any Content. Without limiting the generality of the foregoing sentence, HorseWise shall have the right to remove any Content that violates the Terms or that it deems objectionable.
- You represent and warrant that: (i) you have all necessary right and authority to grant the rights set forth in the Terms with respect to Your Content, including the HorseWise’s rights to store, transmit, process, and use Your Content in accordance with this Terms; and (ii) Your Content does not violate any duty of confidentiality owed to another party, or the copyright, trademark, right of privacy, right of publicity or any other right of any other party.
- You agree that HorseWise has no obligation to remove any reviews or other information posted on the Service about you or any other person or entity. If you disagree with a review, you may post one rebuttal to the review, provided your rebuttal complies with these Terms. You may not terminate your registration and re-register in order to prevent a review from being associated with your account. The author of a review can always remove or request removal of a review that they have written. HorseWise disclaims any liability whatsoever for any misstatements and/or misrepresentations made by any users of the Service.
- RIGHTS TO CONTENT
- HorseWise does not claim ownership of Your Content. However, you grant HorseWise and its service providers a worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Your Content (in any form and any medium, whether now known or later developed) as necessary to (i) provide access to the Service to you and other users (including any maintenance, calibration, diagnostics and troubleshooting); and (ii) monitor and improve the Service. To the extent you have made Your Content accessible to others through the Service, you acknowledge and agree that HorseWise may continue to make Your Content accessible to others through the Service even after you have deleted your user account or the applicable portion of Your Content from your user account.
- You acknowledge and agree that HorseWise may collect or generate Aggregate Data in connection with providing you with access to the Service, and you hereby grant HorseWise and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Aggregate Data for any lawful purpose. “Aggregate Data” means Your Content that has been aggregated or de-identified in a manner that does not reveal any personal information about you and cannot reasonably be used identify you as the source of such data.
- You acknowledge and agree that the technical processing and transmission of data, including Your Content, associated with the Service may require: (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
- Except with respect to Your Content, you acknowledge and agree that, as between you and HorseWise, HorseWise owns all rights, title and interest (including all intellectual property rights) in the Service and all Content and other materials within the Service. The Service is protected by U.S. and international copyright, trademark, patent and other intellectual property laws and treaties. HorseWise reserves all rights not expressly granted to you.
- Except with respect to Your Content, you may not: (i) use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights to the Service, except as expressly permitted under the Terms; (ii) reverse engineer, disassemble, decompile or translate, or otherwise attempt to derive the source code, architectural framework or data records of any software within or associated with the Service; (iii) frame or utilize any framing technique to enclose any Content; (iv) access the Service for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Service or any products or services offered by HorseWise; (v) rent, lease, lend, sell or sublicense the Service or otherwise provide access to the Service as part of a service bureau or similar fee-for-service purpose; (vi) remove or obscure any proprietary notice that appears within the Service; or (vii) use the Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
- User CONDUCT
In connection with your access to or use of the Service, you shall not:
- upload, post, email, transmit or otherwise make available any Content that: (i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful or otherwise objectionable; (ii) may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement); (iii) infringes any patent, trademark, trade secret, copyright or other proprietary right of any party; (iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages or any other form of solicitation; (v) contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware; or (vi) consists of information that you know or have reason to know is false or inaccurate.
- impersonate any person or entity, including HorseWise personnel, or falsely state or otherwise misrepresent your affiliation with any person or entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
- act in a manner that negatively affects the ability of other users to access or use the Service;
- take any action that imposes an unreasonable or disproportionately heavy load on the Service or its infrastructure;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
- use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Service, or substantially download, reproduce or archive any portion of the Service;
- sell, share, transfer, trade, loan or exploit for any commercial purpose any portion of the Service, including your user account and password; or
- violate any applicable local, state, provincial, federal or international law or regulation.
- You are solely responsible for any data, usage and other charges assessed by mobile, cable, internet or other communications services providers for your access to and use of the Service.
- Some features of the Service are free to use, but fees may apply for subscriptions, premium features and other components. If there is a fee listed for any portion of the Service, by accessing or using that portion, you agree to pay the fee. Your access to the Service may be suspended or terminated if you do not make payment in full when due.
- If you sign up for a subscription, your subscription will automatically renew at the conclusion of the then-current term unless you turn off auto-renewal at least twenty-four (24) hours before the conclusion of the then-current term. Uninstalling the Service or ceasing to use it will not automatically cancel your subscription or turn off auto-renewal. You must cancel your subscription or turn off auto-renewal to end recurring charges. If you simply uninstall the Apps without canceling your subscription or turning off auto-renewal, the recurring charges for your subscription will continue. Canceling a subscription or turning off auto-renewal will not entitle you to a refund of any fees already paid, and previously charged fees will not be pro-rated based upon cancellation.
- You authorize HorseWise, or a third-party payment processor that works on our behalf, to charge your chosen payment method according to the terms of the plan to which you subscribe. The subscription period and the amount and frequency of the charges will vary depending on the subscription plan you select. HorseWise reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment. To the extent you elect to purchase other services or product offerings we may offer for a fee, you authorize The HorseWise to charge your chosen payment professional for the Services and/or products you purchase. You agree that if HorseWise already has your credit card on file as a result of prior purchases you have made, we may charge that credit card for the additional services or products you purchase.
If you elect to provide or make available to HorseWise any suggestions, comments, ideas, improvements or other feedback relating to the Service (“Suggestions”), you hereby grant HorseWise a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make or have made your Suggestions in any form and any medium (whether now known or later developed), without credit or compensation to you.
- DEALINGS WITH ADvertisers and Other Third Parties
- HorseWise does not employ any Providers. Requesters are responsible for compliance with all applicable employment and other laws in connection with any employment relationship they establish (such as applicable payroll, tax and minimum wage laws). Further, we do not refer or recommend Requesters or Providers and do not make any representations about the suitability, reliability, timeliness, or accuracy of the services provided by Providers or the integrity, responsibility or actions of Requesters or Providers whether in public, private or offline interactions.
- Your dealings with advertisers and other third parties who market, sell, buy or offer to sell or buy any goods or services on the Service, including payment for and delivery of such goods or services and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the advertiser or other third party. You agree that HorseWise shall not be liable for any damage or loss of any kind incurred as a result of any such dealings.
- LINKS and External Materials
- MODIFICATIONS TO The Service
Subject to any Additional Terms, HorseWise reserves the right to modify, suspend or discontinue the Service or any product or service to which it connects, with or without notice, and HorseWise shall not be liable to you or to any third party for any such modification, suspension or discontinuance. HorseWise may at its sole discretion from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Service or related services (“Updates”). HorseWise may develop Updates that require installation by you before you continue to access or use the Service or related services. Updates may also be automatically installed without providing any additional notice to you or receiving any additional consent from you. The manner in which Updates may be automatically downloaded and installed is determined by settings on your device and its operating system.
You shall indemnify, defend and hold HorseWise and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, “HorseWise Parties”) harmless from and against any claim, demand, loss, damage, cost, liability and expense, including reasonable attorneys’ fees, resulting from or arising out of: (a) Your Content; (b) your violation of the Terms, any law or regulation, or any rights (including intellectual property rights) of another party; (c) your use of the Service; or (d) you interactions or relationship with any other users of the Service. You further agree that you will cooperate as reasonably required in the defense of such claims. The HorseWise Parties reserve the right, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you shall not, in any event, settle any claim or matter without the written consent of the applicable HorseWise Parties.
- YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HORSEWISE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
- THE HORSEWISE PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICE WILL BE ACCURATE, RELIABLE, CURRENT OR COMPLETE.
- ALL CONTENT MADE AVAILABLE THROUGH THE SERVICE IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY AND RELIABILITY OF ALL INFORMATION BEFORE TAKING OR OMITTING ANY ACTION.
- YOU EXPRESSLY AGREE THAT THE HORSEWISE PARTIES SHALL NOT BE LIABLE FOR THE ACTIONS OR INACTIONS OF ANY REQUESTER, PROVIDER OR OTHER THIRD PARTY OR FOR ANY INFORMATION, INSTRUCTION, ADVICE OR SERVICES WHICH ORIGINATED THROUGH THE SERVICE, AND THE HORSEWISE PARTIES EXPRESSLY DISCLAIM ANY LIABILITY WHATSOEVER FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES ARISING, WHETHER KNOWN OR UNKNOWN, THEREFROM.
- LIMITATION OF LIABILITY
- THE HORSEWISE PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR COST OF COVER, OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS, EVEN IF THE HORSEWISE PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL THE HORSEWISE PARTIES’ TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THE TERMS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICE EXCEED THE GREATER OF FIFTY DOLLARS ($50) OR THE AMOUNT PAID BY YOU TO HORSEWISE FOR ACCESS TO THE SERVICE WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE.
- CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
- If you violate the Terms, all rights granted to you under the Terms shall terminate immediately, with or without notice to you.
- Upon termination of the Terms for any reason: (i) you must immediately uninstall and cease using the Service; (ii) HorseWise, in its sole discretion, may remove and discard Your Content and delete your user account; (iii) any provision that, by its terms, is intended to survive the expiration or termination of this Terms shall survive such expiration or termination; and (iv) all rights granted to you under the Terms shall immediately terminate, but all other provisions shall survive termination.
- Following any termination of any individual's use of the Service, HorseWise reserves the right to send a notice thereof to other users with whom we believe the individual has corresponded. Our decision to terminate an individual's registration and/or to notify other users with whom we believe the individual has corresponded does not constitute, and should not be interpreted or used as information bearing on, the individual's character, general reputation, personal characteristics, or mode of living.
- Governing Law
The Terms shall be governed by and construed and enforced in accordance with the laws of the United States of America and the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the Terms.
- BINDING ARBITRATION AND CLASS ACTION WAIVER
ALL CLAIMS (AS DEFINED IN THE PREAMBLE) SHALL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THE Terms AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF YOUR CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. The arbitrator will, among other things, have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any Claims. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator on all matters relating to the Claim shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
WE EACH AGREE THAT ALL CLAIMS (AS DEFINED IN THE PREAMBLE) SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS AND EXPRESSLY WAIVE ANY RIGHT TO HAVE A CLAIM DETERMINED OR RESOLVED ON A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE BASIS. IF FOR ANY REASON THE PROVISIONS OF THE PRECEDING SENTENCE ARE HELD TO BE INVALID OR UNENFORCEABLE IN A CASE IN WHICH CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE CLAIMS HAVE BEEN ASSERTED, THE PROVISIONS OF THIS SECTION 22 REQUIRING BINDING ARBITRATION SHALL LIKEWISE BE UNENFORCEABLE AND NULL AND VOID. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
Notwithstanding anything to the contrary, you and HorseWise may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect our intellectual property rights, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 22.
If HorseWise implements any material change to this Section 22, such change shall not apply to any Claim for which you provided written notice to HorseWise before the implementation of the change.
- U.S. Government Entities
This section applies to access to or use of the Service by a branch or agency of the United States Government. The Service includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in the Terms with respect to the such items, and any access to or use of the Service by the United States Government constitutes: (a) agreement by the United States Government that that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (b) acceptance of the rights and obligations herein.
- NO THIRD-PARTY BENEFICIARIES
You agree that, except for HorseWise Parties and as otherwise expressly provided in the Terms, there shall be no third-party beneficiaries to the Terms.
- Procedure for Making Claims of Copyright Infringement
If you believe that your work has been made available through the Service in a way that constitutes copyright infringement, please provide HorseWise’s Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Service; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. HorseWise’s Agent for Notice of Copyright Claims can be reached as follows:
Agent for Notice of Copyright Claims
- California Users & Residents
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting such unit in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
- Consent to Electronic Communication
By using the Service, you agree to allow HorseWise to communicate with you electronically, and you consent to electronic delivery of notices, documents, or products (including, without limitation, reports or copies of Background Checks and Preliminary Membership Screens) from HorseWise via the Service or e-mail. You also agree to check your HorseWise account, alerts, and messages, and the e-mail account reflected on your HorseWise registration on a reasonably regular basis to stay apprised of important notices and information about your account.
- GENERAL PROVISIONS
The Terms (together with the Additional Terms) constitutes the entire agreement between you and HorseWise concerning your access to and use of the Service. It supersedes all prior and contemporaneous oral or written negotiations and agreements between you and HorseWise with respect to such subject matter. In the event of any conflict between or among the Terms and any Additional Terms to which the Terms refers, the terms and conditions of the Terms shall take precedence and govern. The Terms may not be amended by you except in a writing executed by you and an authorized representative of HorseWise. For the purposes of the Terms, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under the Terms without the prior written consent of HorseWise. The failure of HorseWise to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of this Terms is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of the Terms. Any prevention of or delay in performance by HorseWise hereunder due to labor disputes, acts of god, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.