TERMS OF USE
Last updated: May 15, 2018
Terms of Use
Equine Profile, accessible online through a mobile software application and a website located at equineprofile.com (together with any successor application(s), website(s), platform(s), tool(s), and all Services (as defined in Section 2), the “Platform”), is operated by Equine Profile(“we,” “us”). Your use of the Platform is governed by these Terms of Use (“Agreement”) and Privacy Policy, regardless of how you access the Platform.
1.a. Acceptance of Terms. By using the Platform, you agree to the terms of this Agreement and to any additional rules and guidelines that we post on the Platform. We may make changes to this
Agreement from time to time; we may notify you of such changes by any reasonable means, including by posting the revised version of this Agreement on the Platform. It is your responsibility to review the most recent version of the Agreement frequently and remain informed about any changes to it. You can determine when we last changed this Agreement by referring to the “Last updated” legend above. Your use of the Platform following changes to this Agreement will constitute your acceptance of those changes. This version of the Agreement supersedes all earlier versions, and comprises the entire agreement between you and Equine Profile regarding the Platform. We may, at any time, modify or discontinue all or part of the Platform; refuse to provide any user with access to the Platform; charge, modify, or waive fees required to use the Platform; or offer opportunities to some or all Platform users. If you do not agree to any provision of this Agreement, you should not use the Platform.
1.b. Subscription Terms: We provide a monthly subscription in which users can subscribe to the full version and to be able to add several students and horses. The subscription cost is USD 4,99 for a 30 days period.
You can subscribe to the full version and you will be able to add several students and horses. You can cancel it at any time by going to Settings -> Your Apple ID (at the top of the screen) -> iTunes and Appstore -> Apple ID -> Subscriptions.
2. Description of Services. We provide users of the Platform access to a directory of equine- related service providers (“Provider”) and membership subscription management for Providers (such information and services, collectively, the “Services”). Platform connects users who seek equine-related services (“Service Seeker”) with Providers.
2.2 Excluded services. Equine Profile does not provide equine-related services, and Equine Profile is not a Provider. Equine Profile offers information and a method to obtain such equine-related services, but does not and does not intend to provide equine-related services or act in any way as a Provider, and has no responsibility or liability for any equine-related services provided to you. Equine Profile does not endorse, nor recommends one Provider over the other. Any decision made by you to use an equine-related service is a decision made in your sole discretion. Each equine-related service provided to you shall constitute a separate agreement
between you and such Provider to which Equine Profile is not a party.
3. Release. You acknowledge and agree that we are not responsible for, and make no representations or warranties regarding the actual equine-related services provided to you. You hereby release Equine Profile, its officers, employees, agents and successors from claims, demands any and all losses, damages, rights, claims, and actions of any kind including, without limitation, personal injuries, death, and property damage, that is either directly or indirectly related to or arises from (i) your use of the Platform, or (ii) your purchase or use of any equine-related services. Equine Profile has no control over the quality of equine-related services; nor do we have any control over the truth or accuracy of the Providers’ information listed on the Platform.
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We cannot ensure that Provider is who he or she claims to be or that Provider will actually complete an arranged service. Equine Profile does not verify whether Provider possesses all necessary certifications, licenses and authority and is authorized to provide equine-related services to Service Seekers; nor does Equine Profile verify the status of such certifications and licenses; nor does Equine Profile verify the status or sufficiency of any insurance policy coverage maintained by Provider or applicable to equine-related services provided.
4. Jurisdiction. The Platform is controlled and/or operated from the United States, and is not intended to subject us to non-U.S. jurisdiction or laws. The Platform may not be appropriate or available for use in some jurisdictions outside of the United States. If you access the Platform, you do so at your own risk, and you are responsible for complying with all local laws, rules, and regulations. We may limit the Platform’s availability, in whole or in part, to any person, geographic
area, or jurisdiction we choose, at any time and in our sole discretion.
5. Compliance with laws and regulations. You agree to comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Platform, including without limitation your submission of Your Information (as defined in Section 10.1). You also agree to comply with all applicable laws, statutes, ordinances and regulations regarding the transmission of technical data exported from the United States or the country in which you reside.
6. Membership
6.1 Eligibility. Platform is available to all individuals who are at least 18 years of age. Our Platform is not available to any temporarily or indefinitely suspended Platform users. By using the Platform, you represent and warrant that you are at least 18 years of age. We have the right, in our sole discretion, to suspend or terminate your use of the Platform and refuse any and all current or future use of all or any portion of the Platform. You may not authorize third parties to use your account and you may not allow persons under the age of 18 to contact Providers or use equine- related services unless they are accompanied by you. You may not assign or otherwise transfer your account to any other person or entity. We reserve the right to deny you access to the Platform.
6.2 Password and Security. Service Seekers are required to register to access the Platform. Providers are required to register, and when you complete our registration process you will create a password that will enable you to access the Platform. We may reject, or require that you change, any user name, password, or other information that you provide to us during the registration process. You agree to maintain the confidentiality of your password, and are fully
responsible for all liability and damages resulting from your failure to maintain that confidentiality and all activities that occur through the use of your password. You agree to immediately notify us of any unauthorized use of your password or any other breach of security. You agree that Equine Profile cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 6.2.
6.3 Information You Submit. Your submission of information through the Platform is governed by our Privacy Policy. You agree that all information you provide to us is true, accurate, and complete, and you will maintain and update such information regularly. If you choose to make any
of your personally identifiable or other information publicly available in the Platform, you do so at your own risk. We make no representation as to the completeness, accuracy, or how current any information in the Platform.
7. Rules of Conduct. While using the Platform you will comply with all applicable laws, rules, and regulations. In addition, we expect users of the Platform to respect the rights and dignity of others. Your use of the Platform is conditioned on your compliance with the rules of conduct set forth in this section; your failure to comply with such rules may result in termination of your access to the Platform pursuant to Section 20 below. You agree that you will not:
• • Use the Platform for any fraudulent or unlawful purpose;
• • Use the Platform to defame, abuse, harass, stalk, threaten or otherwise violate thelegal rights of others, including without limitation others’ privacy rights or rights of
publicity, or harvest or collect personally identifiable information about other users
of the Platform;
• • Impersonate any person or entity, falsely state or otherwise misrepresent youraffiliation with any person or entity in connection with the Platform; or express or
imply that we endorse any statement you make;
• • Post any information that is obscene or contain, pornography, child pornography,or photographs of unclothed person(s);
• • Interfere with or disrupt the operation of the Platform or the servers or networksused to make the Platform available; or violate any requirements, procedures,
policies or regulations of such networks;
• • Advertise merchandise, auctions, services or commercial websites, including offersto trade or charitable solicitations;
• • Post unsolicited or unauthorized advertising, promotional materials, or any otherform of solicitation (including, but not limited to, “spam,” “junk mail,” and “chain
letters”);
• • Transmit or otherwise make available in connection with the Platform any virus,worm, Trojan horse, Easter egg, time bomb, cancelbots, spyware, or other computer code, file, or program that is harmful or invasive or may or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software, or equipment;
• • Harm or intimidate another person in any way, including restricting or inhibiting any other user from using the Platform (including without limitation by hacking or defacing any portion of the Platform);
• • Reproduce, duplicate, copy, sell, resell, or otherwise exploit for any commercial purposes, any portion of, use of, or access to the Platform;
• • Modify, adapt, translate, reverse engineer, decompile, or disassemble any portion of the Platform;
• • Infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
• • Remove any copyright, trademark, or other proprietary rights notice from the Platform or materials originating from the Platform;
• • Frame or mirror any part of the Platform without our express prior written consent.
• • Create a database by systematically downloading and storing Platform content;
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• • Use any robot, spider, Platform search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine,” or in any way gather Platform content or reproduce or circumvent the navigational structure or presentation of the Platform without our express prior written consent. Notwithstanding the foregoing, we grant the operators of public online search engines limited permission to use search retrieval applications to reproduce materials from the Platform for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of such materials solely in connection with each operator’s public online search service. We reserve the right to revoke these exceptions either generally or in specific instances;
• • Encourage others to violate this Agreement;
• • Refuse to follow Equine Profile staff instruction or direction;
• • Disclose the Personal Information and Other Information (as defined in Privacy
Policy) of any member of the Platform without the permission of that member;
Also, your posting of other inappropriate actions, Your Information or other materials may also warrant removal and/or suspension from the Platform. Platform reserves the right to remove any post or other material without warning or further notice.
While we prohibit conduct and content that violates this Agreement, you understand and agree that you nonetheless may be exposed to such conduct or content and that you use the Platform at your own risk.
For purposes of this Agreement, “posting” includes uploading, posting, emailing, transmitting or otherwise making available. Without limiting the foregoing, Platform and its designees shall have the right to remove any Your Information or other material that violates this Agreement or is otherwise objectionable.
8. Fees and Payment
8.1 Platform Fees. Access to the Platform and use of selected features is free. Providers listed as an equine-related service Provider on the Platform will be free. We may charge fees for various premium features and services that we offer, and we will notify you of those charges at the time that we offer you the premium features or services for a fee. We may, in our sole discretion, and by notifying you in the Platform, change this policy and begin charging for access to the Platform and other features and services, and we may, in our sole discretion, add, remove or change the features and services we offer or the fees (including the amount or the type
of fees) we charge at any time. If we introduce a new service or charge a new fee, we will establish and notify you of the fees for that service at the launch of the service or start of charging a new fee. If we notify you of new fees or change the fees for an existing service, you agree to pay all fees and charges specified and all applicable taxes for your continued use of the applicable service. We are not responsible for any charges or expenses you incur resulting from being billed by us in accordance with this Agreement (e.g., overdrawn accounts, exceeding account limits, etc.).
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8.2 Facilitation of payments. All payments are facilitated through a third party payment processing company. Equine Profile may replace its third party payment processing company without notice to you. Payments shall only be made through the Platform.
8.3 Promotions. Equine Profile, at its sole discretion, may make available promotions with different features to any of our users or prospective users of the Platform. These promotions, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with Equine Profile. Equine Profile, in its sole discretion, may offer free access to the Platform.
8.4 Credit card authorization. To pay for Services through Platform, you will need to provide Equine Profile with a payment information. By submitting your payment information to us, you authorize us to charge the applicable payment method at our convenience but within thirty (30) days of your making the payment. You represent that you will not use any credit card or other form of payment unless you have all necessary authorization to do so. Equine Profile may seek authorization of your credit card to validate your ability to pay the applicable charges. The authorization is not a charge, however, the authorization may reduce your available credit by the authorization amount until your bank’s next processing cycle. Should the amount of our authorization exceed the total funds on deposit in your account or available credit, you may be subject to overdraft of NSF charges by the bank issuing your debit or check card. We cannot be held responsible for these charges and are unable to assist you in recovering them from your issuing bank.
8.5 Bank fees. Some banks and credit cards impose fees for international transactions. If you are making a payment from outside of the United States on a US credit card, your bank may convert the payment amount to your local currency and charge you a conversion fee. This means the amount listed on your credit or bank card statement may be in your local currency. In addition, a foreign transaction fee may be assessed if the bank that issued your credit card is located outside of the United States. The currency exchange rate and foreign transaction fee is determined solely by your bank on the day that they process the transaction. If you have any questions about these fees or the exchange rate applied to you, please contact your bank.
9. Consent to Disclosure. You acknowledge and agree that Equine Profile may disclose Your Information if required to do so by law or in the good faith belief that such disclosure is reasonably necessary to: (a) comply with a current judicial proceeding, a court order or legal process served on Equine Profile, (b) enforce this Agreement, (c) respond to claims that Your Information violates the rights of third parties; (d) protect the rights, property or personal safety of Equine Profile, its members, agents, employees, users and the public; or (e) enable the transfer or sale to another entity of all or substantially all assets in the line of business to which
this Agreement relates, or upon any other company reorganization, subject to the promises made in this Agreement. We also may disclose any information about you to law enforcement or other government officials as we, in our sole discretion, believe necessary or appropriate, in connection with an investigation of fraud, intellectual property infringements, or other activity that is illegal or that we believe may expose us or you to legal liability.
10. Your Information
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10.1 Definition. “Your Information” is defined as any information you submit or make available (directly or indirectly), including through the registration process or through the use of the Platform.
10.2 License. We do not claim ownership of Your Information. We will use Your Information only in accordance with our Privacy Policy. However, to enable us to use Your Information and to ensure we do not violate any rights you may have in Your Information, you grant Equine Profile a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable right to exercise, commercialize and exploit the copyright, publicity, and database rights you have in Your Information, in any media now known or not currently known, with respect to Your Information.
10.3 Restriction on use of Your Information. Except as otherwise provided in our Privacy Policy, we will not sell, rent or otherwise disclose any of your Personal Information (as defined in
our Privacy Policy) about you (including your email address) to any third party.
10.4 Your email address. You agree that you will provide us with your valid, current email address, both at the time of your registration with us and from time to time as your email address changes.
11. Use of Platform
11.1 Control. You, and not Equine Profile, are entirely responsible for all of Your Information that you upload, post, email, transmit or otherwise make available via the Platform. We do not control Your Information or the information of or posted by other users and do not guarantee the accuracy, integrity or quality of Your Information. You agree that under no circumstances will Equine Profile, its members, employees, consultants, agents, advisers, affiliates, subsidiaries or its third-party partners be liable in any way for any information, including, but not limited to, for any errors or omissions in Your Information, or for any loss or damage of any kind incurred as a result of the use of Your Information or information of or posted by other users posted, emailed, transmitted or otherwise made available in connection with the Platform, or for any failure to correct or remove information.
11.2 General Practices Regarding Use of the Platform. You acknowledge and agree that we may establish general practices and limits concerning the use of the Platform. You agree that we have no responsibility or liability for the storage or the deletion of, or the failure to store or deletion, any of Your Information. You acknowledge that we reserve the right to log off users who are inactive for an extended period of time. In addition, you acknowledge that we reserve the right to
change these general practices and limits at any time, in our sole discretion, with or without notice.
12. Communication
12.1 Platform Communication. You understand that certain communications, such as Platform service announcements, as well as offers of sponsorship or promotion relevant and beneficial to you, are part of the Platform. By using the Platform, you expressly agree to receive such communications from the Platform.
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12.2 Your location. When you use the Platform, we may collect location information from the GPS functionality on your device. You hereby authorize us and to take such actions and access such data. You can grant or revoke your consent at any time and prevent us from continuing to access your GPS information by changing the settings on your device.
13. Privacy. Equine Profile collects registration and other information about you through the Platform. Our collection, use, and disclosure of this information is governed by the Platform’s Privacy Policy.
14. Links. The Platform may provide links to other apps, web sites and online resources (collectively, “Links”). Links may or may not have our authorization, and we may block any Links to or from the Platform. Your use of third-party links is at your own risk. Because we have no control over such Links, you acknowledge and agree that we are not responsible for such Links,
and do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such Links. You also acknowledge and agree that Equine Profile shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such Links.
15. Marketing partners and third parties. Your correspondence or business dealings with, or participation in promotions of, marketing partners or other third parties found on our Platform, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such marketing partner or other third party. You agree that Equine Profile shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such marketing partners or other third parties in the Platform.
16. Indemnity. Except to the extent prohibited under applicable law, you agree to defend, indemnify and hold us, our agents, employees, consultants, affiliates, subsidiaries and third-party partners harmless from and against all claims, losses, costs, and expenses (including attorneys’ fees) arising out of (a) your use of, or activities in connection with, the Platform or (b) any breach of your representations and warranties or this Agreement or the documents it incorporates by party.
17. Warranties and liability
17.1 Disclaimer of Warranties. You understand and agree that you download or otherwise obtain material or data through the use of the Platform at your own discretion and risk and that you will
be solely responsible for any damages to your device or loss of data that results from the download of such material or data. The Platform and all goods, services, information, and materials made available through the Platform are provided to you “as is” without any express representations or warranties of any kind, and we disclaim all statutory or implied representations, warranties, terms, and conditions with respect to the Platform and all services, information, and materials made available through the Platform, including the representations and warranties of satisfactory quality, merchantability, fitness for a particular purpose, non-infringement, and title. We make no representation or warranty that the Platform (or any part thereof) will be accurate, complete, or error-free, nor that any particular software or hardware, will be compatible with the Platform,
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and you hereby agree that it is your sole responsibility to (a) obtain and pay for any software, hardware and services (including internet connectivity) needed to access and use the Platform and (b) ensure that any software, hardware, and services that you use will function correctly with the Platform. You agree that you must evaluate, and that you bear all risks associated with, the use of the Platform, including any reliance on the accuracy, completeness, or usefulness of any information or materials made available through the Platform. we disclaim any warranties regarding the security, reliability, timeliness, and performance of the Platform. We disclaim any warranties for any information or advice obtained through the Platform. We disclaim any warranties for services or goods received through or advertised in the Platform or received through any links provided by the Platform, as well as for any information or advice received through any links provided through the Platform. In addition, no advice or information (oral or written) obtained by you from us shall create any warranty.
17.2 Limitation of liability. We will not be liable for any indirect, incidental, consequential, special, exemplary, or punitive damages of any kind in connection with the Platform, nor for any damages for loss of profits, goodwill, loss of use, loss of data, loss of other intangibles, loss of security of information you have provided in connection with your use of the Platform, or unauthorized interception of any such information by third parties, even if advised in advance of such damages or losses. Further, we will not be liable for damages of any kind resulting from your use of the Platform or from any information or materials in the Platform. Your sole and exclusive remedy for dissatisfaction with the Platform is to stop using the Platform. Our maximum liability for all damages, losses, and causes of action, whether in contract, tort (including, without limitation, negligence), or otherwise shall be the total amount, if any, paid by you to us to access and use the Platform.
17.3 Exclusions. It is possible that applicable law may not allow for limitations on certain implied warranties or exclusions or limitations of certain damages; solely to the extent that such law applies to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you may have additional rights. If applicable law prohibits the limitation or exclusion of a party’s liability with respect to death or personal injury caused by such party’s negligence, fraud, or any other matter, then such party’s liability will not be limited or excluded to the extent of such prohibition under such applicable law.
17.4 Provider representations and warranties. Provider represents, warrants and agrees that:
• • Provider is not an employee of Equine Profile or its subsidiaries.
• • Provider possesses all necessary certifications, licenses and authority and is authorized to provide equine-related services to Service Seekers in all jurisdictionsin which Provider provides equine-related services.
• • Provider has, if required by applicable law or regulation, a valid insurance policy(in coverage amounts consistent with all applicable legal requirements).
• • Provider will be solely responsible for any and all liability that results from or is alleged as a result of Provider’s provision of equine-related services, including, butnot limited to personal injuries, death and property damages.
• • Provider will comply with all applicable laws, rules and regulations while providingequine-related services, and Provider will be solely responsible for any violations of such provisions.
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• • Provider will pay all applicable federal, state and local taxes based on Provider’s provision of ride-sharing services and any payments received by Provider.
• • Provider will not make any misrepresentation regarding Equine Profile, the equine-related services or Provider’s status, or engage in any other activity in a manner that is inconsistent with Provider’s obligations under this Agreement.
• • Provider will not attempt to defraud Equine Profile in connection with Provider’s provision of equine-related services. If we suspect that Provider has engaged in fraudulent activity, we may suspend or terminate your access to the Platform.
• • Provider will not discriminate or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation.
• • Provider agrees that we may obtain information about Provider, including your criminal and license records, and you agree to provide any further necessary authorizations to facilitate our access to such records during the term of the Agreement.
18. Dispute Resolution
18.1 Process. The parties will attempt in good faith to resolve through negotiation any dispute, claim or controversy arising out of or relating to this Agreement including the documents it incorporates by reference, your use of the Platform, Your Information, or your violation of any law or the rights of a third party. In the event that the dispute, claim or controversy is not resolved by these negotiations, the matter will be submitted to Judicial Arbitration and Mediation Services, Inc. (a.k.a. “JAMS”), or its successor, for mediation pursuant to Section 18.3, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration pursuant to Section 18.4. Nonetheless, legal action taken by Equine Profile to collect any fees and/or recover damages for, or obtain an injunction relating to, the Platform operations, intellectual property shall not be submitted to mediation or arbitration except as otherwise agreed to in writing by Equine Profile.
18.2 Negotiation. Either party may initiate negotiations by providing written notice in letter form to the other party, setting forth the subject of the dispute and the relief requested. The recipient of such notice will respond in writing within fifteen (15) business days with a statement of its position on and recommended solution to the dispute. If the dispute is not resolved by this exchange of correspondence, then representatives of each party with full settlement authority will meet in person or otherwise at a mutually agreeable time and place within thirty (30) business days of the
date of the initial notice in order to exchange relevant information and perspectives, and to attempt to resolve the dispute.
18.3 Mediation. Either party may commence mediation by providing to JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator from JAMS’ panel of neutrals, and in scheduling the mediation proceedings. The parties agree that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by
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any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or forty-five (45) days after the date of filing the written request for mediation, whichever occurs first. The mediation may continue after the commencement of arbitration if the parties so desire. Unless otherwise agreed by the parties, the mediator shall be disqualified from serving as arbitrator in the case.
18.4 Arbitration. The parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement that are not resolved by their mutual agreement by negotiation or
mediation under Sections 18.2 and 18.3 shall be submitted to final and binding arbitration before JAMS, or its successor, pursuant to the United States Arbitration Act, 9 U.S.C. Sec. 1 et seq. Either party may commence the arbitration process called for in this Agreement by filing a written demand for arbitration with JAMS, with a copy to the other party. The arbitration will be conducted in accordance with the provisions of JAMS’ Streamlined Arbitration Rules and Procedures in effect at the time of filing of the demand for arbitration. The parties will cooperate with JAMS and with one another in selecting an arbitrator from JAMS’ panel of neutrals, and in scheduling the arbitration proceedings. The parties covenant that they will participate in the arbitration in good faith, and that they will share equally in its costs.
18.5 Enforcement. The provisions of Sections 18.3 and 18.4 may be enforced by any Court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys fees, to be paid by the party against whom enforcement is ordered.
18.6 Notice; Waiver. You agree that, except as otherwise specified in Section 18.1, all disputes, claims or controversies arising out of or relating to this Agreement will be decided by negotiation, neutral mediation and/or neutral arbitration. Also, by agreeing to this Agreement you are giving up your judicial rights to discovery and appeal except to the extent that they are specifically provided for under this Agreement. If you refuse to submit to arbitration after agreeing to this provision, you may be compelled to arbitrate under federal or state law. Your agreement to this arbitration provision is voluntary.
18.7 Dispute between you and third party. If you have a dispute with third party resulting from
or arising out of or in connection with your use of the Platform, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
18.8 Waiver of Jury Trial and Class Action. YOU ACKNOWLEDGE AND AGREE TO WAIVE CERTAIN RIGHTS TO LITIGATE DISPUTES IN COURT, TO RECEIVE A JURY TRIAL OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. YOU
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AGREE THAT ANY ARBITRATION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT A CONSOLIDATED, CLASS-WIDE OR REPRESENTATIVE BASIS AND THE ARBITRATOR SHALL HAVE NO AUTHORITY TO PROCEED WITH AN ARBITRATION ON A CLASS OR REPRESENTATIVE BASIS. THE ARBITRATOR MAY AWARD INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. IF FOR ANY REASON THE ARBITRATION CLAUSE SET FORTH IN THESE TERMS OF USE IS DEEMED INAPPLICABLE OR INVALID, OR TO THE EXTENT THE ARBITRATION CLAUSE ALLOWS FOR LITIGATION OF DISPUTES IN COURT, YOU AND EQUINE PROFILE BOTH WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT TO PURSUE OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS
OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY.
19. Modifications and service interruption. We reserve the right at any time or times to modify or discontinue, temporarily or permanently, all or any portion of the Platform with or without notice. You agree that we shall not be liable to you or to any third party for any modification, suspension or termination of the Platform. We do not guarantee continuous, uninterrupted or secure access to the Platform, and operation of the Platform may be interfered with by numerous factors outside of our control, maintenance or other reasons. Additionally, third parties may make unauthorized alterations to the Platform. If you become aware of any unauthorized third party alterations to the Platform, contact us with a description of the unauthorized third party alteration. Equine Profile assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, or User communications. Equine Profile is not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, software, failure of email or players on account of technical problems or traffic congestion on the internet, including injury or damage to User’s or to any other person’s computer, mobile phone, or other hardware or software, related to or resulting from using or downloading materials in connection with the web and/or in connection with the Platform. We do not guaranty that Platform is free from viruses, worms, Trojan horses or other harmful components. You agree that we shall not be liable to you or to any third party for any viruses, worms, Trojan horses or other harmful components in the Platform.
20. Termination. This Agreement is effective until terminated. We may, at any time and for any reason, temporarily suspend, remove content or information you have posted or terminate your access to or use of: (a) the Platform, (b) your user name and password or (c) any files or
information associated with your user name and password. You agree that any termination of your account or access to all or any portion of the Platform under any provision of this Agreement may be effected without prior notice, and you acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Platform. If we terminate your access to the Platform, you will not have the right to bring claims against us or our affiliates with respect to such termination. We and our affiliates shall not be liable for any termination of your access to the Platform or to any such information or files, and (except as may be required under mandatory
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applicable law) shall not be required to make such information or files available to you after any such termination. We may take steps that we believe are appropriate to enforce or verify compliance with any part of this Agreement (including our right to cooperate with any legal process relating to your use of the Platform or any third-party claim that your use of the Platform is unlawful or infringes such third party’s rights). Sections 10.2, 16, 17, 18 and 29 shall survive any expiration or termination of this Agreement.
21. Trademarks; Copyrights; Proprietary Rights. Platform’s trademarks, service marks, and other Platform’s logos, products and service names, are trademarks of Equine Profile (“Proprietary Rights”). Except as otherwise permitted by law, you agree not to display or use in any manner the Proprietary Rights without Platform’s prior written consent. All trademarks and service marks in the Platform not owned by us are the property of their respective owners. You acknowledge and agree that content contained in sponsor advertisements or information presented
to you through the Platform or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. You may not use Platform’s Proprietary Rights in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Except as expressly authorized in advance by us, you agree not to reproduce, modify, rent, lease, loan, sell, distribute or create derivative works based on, all or any part of the Platform or any information or materials made available through the Platform.
Please note that unauthorized use of the Platform may subject you to civil and criminal penalties (including, without limitation, possible monetary damages), including, without limitation, for copyright infringement.
You hereby acknowledge that any and all (i) suggestions for correction, change and modification to the Platform and other feedback (including but not limited to quotations of written or oral feedback), information and reports provided to Equine Profile by you (collectively “Feedback”), and (ii) improvements, updates, modifications or enhancements, whether made, created or developed by Platform or otherwise relating to Platform based on Feedback or otherwise (collectively, “Update”), are and will remain the property of Equine Profile. You authorize Equine Profile to treat Feedback and Update as non-confidential and non-proprietary. You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Platform or in any such Feedback or Update. All Feedback and Update become the sole and exclusive property of Equine Profile and Equine Profile may use and disclose Feedback and/or Update in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to Equine Profile any and all right, title
and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show- how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback and Update. At Equine Profile’s request, you agree to execute any document, registration or filing required to give effect to the foregoing assignment.
22. Copyright infringement. To comply with the Digital Millennium Copyright Act of 1998, Title 17 of the United States Code, Section 512 (“DMCA”), we will respond promptly to claims of copyright infringement. Please send all claims of copyright infringement to: info@equineprofile.com.
