Horsecom USA, Inc.
Terms and Conditions
Terms and Conditions of Service & End User License Agreement
You Agree. By using this website, including but not limited to purchasing any products or services via this website, you are agreeing to the terms and conditions set forth in this Terms and Conditions of Service & End User License Agreement (“Agreement”).
BINDING CONTRACT. THIS IS A BINDING, LEGAL CONTRACT BETWEEN YOU AND HORSECOM USA, INC. THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF HORSECOM USA, INC.’S PRODUCTS AND SERVICES. YOUR USE OF THIS WEBSITE, ITS PRODUCTS OR SERVICES, CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT. THIS AGREEMENT INCLUDES AN ASSUMPTION OF RISK AND RELEASE FROM LIABILITY BY YOU. IF YOU OBJECT TO ANY PART OF THIS AGREEMENT, DO NOT USE THIS WEBSITE, ITS PRODUCTS OR SERVICES.
Products and Services
Products and Services. Horsecom’s products include the Bluetooth® connected headphone system for horses and riders, which system includes the HCom unit for horses, the RCom unit for riders, and related peripherals (the “Horsecom Unit”). Horsecom’s services include (i) the Horsecom playlists available by subscription via the Apple Music platform or the Horsecom Music platform (the “Horsecom Application”), and (ii) the website located at www.Horsecom.us together with all associated sites and applications on any platform (including, but not limited to, mobile platforms) linked to www.Horsecom.us by Horsecom, its subsidiaries and affiliates, and any updates or modifications to the foregoing websites and applications (collectively, the “Site”). The foregoing Horsecom Unit, Horsecom Application, and Site are referred to collectively in this Agreement as the “Horsecom Services.”
Purchase Plan Formulas. Horsecom offers the Horsecom Services at the purchase plan formulas posted on www.Horsecom.us.
Promotions. Horsecom may but shall under no circumstances be required to make gift or promotional offers of the Horsecom Services. Any gift or promotional offers shall be pursuant to such additional terms and conditions as Horsecom shall announce in writing on the Site. Horsecom may terminate any gift or promotional offer at any time in its sole and absolute discretion. In the event of a conflict between the terms and conditions associated with a gift or promotional offer and this Agreement, the provisions of this Agreement shall control.
ASSUMPTION OF RISK AND RELEASE FROM LIABILITY
Acknowledgement and Release. You acknowledge that the risks from using Horsecom’s Services, and other activities and equipment involved in horse training and horseback riding, are significant and include RISK OF SERIOUS PERSONAL INJURY, PERMANENT DISABILITY AND DEATH. The risks also include risk of substantial property damage, including injury and death to horses. Moreover, the risks are potentially greater than the risks associated with regular horse training and horseback riding. By using Horsecom products and services, YOU KNOWINGLY AND FREELY ASSUME ALL SUCH RISKS, both known and unknown. Moreover, to the maximum extent permitted by applicable law, YOU HEREBY RELEASE HORSECOM FROM ANY AND ALL LIABILITY concerning any injury, loss or damage arising from your use of any Horsecom Services.
Orders, Subscriptions and Payment
Payment. Payment for Horsecom Services or for any goods or products ordered through the Site is due at the time of the placement of any order and must be made through the payment portal accessible on the Site. Horsecom is not obligated to accept any other form of payment. If payment is accepted by cash, check, or money order, acceptance shall be subject to any additional conditions imposed by Horsecom in its sole discretion. All payments shall be made in United States dollars unless otherwise denoted by Horsecom. Horsecom may, in its sole discretion, refuse to contract with you or any user for any reason that in not unlawful. An order placed on the Site constitutes an offer by you to purchase the selected product(s) and service(s). Acceptance is in Horsecom’s sole discretion and may be communicated by either (i) an email or other writing confirming placement of the order or (ii) substantial fulfillment of the order. Other than this Agreement, no contract between Horsecom and you shall be deemed created until the purchased goods are shipped and/or commencement of the rendering of any service and such contract thereafter shall only apply to such shipped goods and/or services performed. To the extent applicable at law or in equity, you waive any claim or action for breach of express or implied contract (including without limitation quasi-contract actions). Orders are subject to availability of the product(s) and/or service(s) as well as price confirmation. Prices are subject to change at any time. If a price set forth on the Site is erroneous and such error is discovered after Licensee’s acceptance, Horsecom shall promptly notify the you, the contract shall be deemed void, and unless you opt to accept the goods and/or services at the correct price Horsecom shall promptly issue a refund to you. You are responsible for all shipping, handling, and related charges. Horsecom is not responsible for shipment delay or failure caused by a third party shipper or force majeure. Placement of an order constitutes the acknowledgement and representation that you (i) are over the age of eighteen (18) and otherwise eligible to use the Site and (ii) are authorized to use the credit card or other method of payment through which payment is remitted. Credit cards may be debited immediately upon provision by you of the required information. A declined or refused credit card shall be deemed a failure of consideration and shall excuse any further action (or omission) by Horsecom. Horsecom is neither the agent nor the principal with respect to any third party with which user may enter into a contract, shall not be bound by any third party contract, and shall have no liability thereunder.
Subscription. You shall provide true, accurate, current, and complete information as prompted by the Site and shall update such information from time to time as is necessary. The provision of false, inaccurate, or incomplete information or failure to maintain current information shall be grounds for the immediate termination of Horsecom Service. You agree that only you will use any account created with your subscription and that you will not share any access information, including without limitation your login or password, with any third party. You are solely responsible for maintaining the security of your login and password and agree to indemnify Horsecom for any loss, damage, claim, liability, or cause of action occasioned by the use of such login and password by any third parties. In the event that you believe your account information has been compromised you are required to notify us immediately.
Third Party Accounts. The Services may, but will not necessarily, be accessed via one or more third party accounts, including but not limited to Apple Music. You agree to abide by the terms and conditions that govern such third-party account and to hold Horsecom harmless from any cause of action, liability, loss, injury, or damage caused by the use of such third-party provider or a violation of any terms of service of such third party provider.
Within fifteen days following delivery of the Horsecom Unit. If you are not satisfied with the Horsecom Unit for any reason other than damage caused to the unit by you or another user, return the Horsecom Unit to Horsecom together with the original packaging and paperwork, postage prepaid and postmarked within fifteen days of the original delivery date for a refund. Horsecom will issue a full refund and, if you subscribed to the Horsecom Application via the Horsecom Music platform, Horsecom will terminate your subscription. PLEASE NOTE: if you subscribed to the Horsecom Application via the Apple Music platform, you must cancel your subscription with Apple directly to avoid monthly subscription charges. Horsecom will not provide refunds for Horsecom Unit returns postmarked more than fifteen days following delivery.
Subscription Cancellation. You may cancel your monthly subscription to the Horsecom Application at anytime. HOWEVER, PLEASE NOTE: if you cancel your monthly subscription to the Horsecom Application prior to the end of the subscription included with your initial purchase plan formula, you will be charged, and agree to pay, the balance due on your purchase plan formula. By way of example, if your initial purchase plan formula includes a twelve month subscription plan and you cancel after nine months, you will be charged and agree to pay for the the months remaining in your purchase plan formula.
Free from Manufacturer’s Defects. The Horsecom Unit is guaranteed to be free from manufacturer’s defects for two years from the date of original purchase by you from Horsecom (the “Limited Warranty Period”). In the event of such a defect, Horsecom will, in its sole discretion, repair the Horsecom Unit or replace it with a new or refurbished unit. Such repaired or replaced unit will be guaranteed to be free from manufacturer’s defects for the balance of the Limited Warranty Period. Horsecom is not responsible for Horsecom Units that are no longer functioning due to damage caused by you or another user (including equine users, canine companions, and children).
Equipment. You are solely responsible for providing the equipment necessary to access and use the Horsecom Services, including without limitation any computer, drive, software, hardware, application, modem, and Internet connection. Horsecom shall not be responsible for any fees paid or accrued by you to access the Internet. You agree to hold Horsecom harmless from any damage to such equipment regardless of the cause of such damage.
Third Party Service Providers. Certain third parties may offer products and services through the Site. Each such third party is solely responsible for the products or services it offers. Horsecom makes no warranty, guaranty, or representation concerning the availability, quality, fitness, safety, or suitability of or with respect to any such product or service or of the person or entity that offers, provides, or sells such product or service and expressly disclaims any such warranties, express or implied, including without limitation any implied warranties of fitness for a particular purpose or merchantability. You agree to indemnify Horsecom and hold it harmless from any loss, liability, damage, injury, or cause of action caused by or attributable to, in whole or in part, any negligent, grossly negligent, reckless, intentional, or willful act or omission of such third party product or Horsecom. Horsecom does not warrant that the information, assistance, advice, or consultation provided by any third party is accurate, beneficial, or will produce a desired result. Furthermore, Horsecom does not warrant or represent that any third party is qualified to provide any specific information or advice. All such information, assistance, advice, and consultation is provided “AS IS” and subject to the warranty disclaimers set forth below. Users agree to indemnify Horsecom and hold it harmless from any claim, cause of action, injury, loss, or damage caused by or alleged to be caused by the information, recommendations, counsel, or advice provided by any third party.
Use of Site
The Site. The Site includes www.Horsecom.us, all of its constituent pages, all content on said websites and any constituent page, all URL’s associated with or which lead to said websites, all associated applications on any platform (including without limitation Android and IOS), all trade dress and monikers on said websites, all of Horsecom’s intellectual property contained anywhere on said websites (including without limitation all trademarks, service marks, copyrights, and patents), the source and any other code, design elements, renditions, and copies of any of the foregoing. The Site further includes any and all amendments, modifications, and changes of any nature whatsoever to the foregoing.
Ownership of Site. The Site, all of its constituent pages as added and amended from time to time, all content on said website and any constituent page, all URL’s associated with or which lead to said website, all associated applications on any platform (including without limitation Android and IOS), all trade dress and monikers on said website, all intellectual property contained anywhere on the Site (including without limitation all trademarks, service marks, copyrights, and patents), the source and any other code, all design elements and renditions, copies of any of the foregoing, and to the extent not heretofore listed all of content set forth on each and every page of the Site, including without limitation all copy, marks, monikers, logos, trade dress, processes, information, and intellectual property, are, collectively and individually, the sole and exclusive property of Horsecom USA, Inc. (“Horsecom”) and its licensors.
Your Content and Third-party Content. All information, data, text, software, graphics, voice or sound files, photographs, videos, depictions, messages, emails, chats, text messages, documents, and other such materials (“Content”) of yours or any third party used on or transmitted by or through (i) the Site or (ii) the use of the Horsecom Services shall be the sole and exclusive property of you or such third party as appropriate. Horsecom does not warrant or guaranty the accuracy, integrity, quality, veracity, or appropriateness for any purpose of such Content, and shall be held harmless and indemnified by you for any damages caused by or arising out of the use, reliance on, or application of the Content, including without limitation damages caused by errors, omissions, inaccuracies, negligence, misrepresentations, or fraud.
Prohibited Content. You shall not post on the Site, on your own behalf or on behalf of any third party, and shall not permit others to post on the Site, any Content that, in whole or in part: (a) Is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, invasive of another’s privacy, or hate speech;(b) misrepresents the actual identity of a person, or misrepresents or falsely represents an affiliation with a person or entity; (c) constitutes advertising, promotional material, junk mail, spam, a chain letter, pyramid scheme, or an unauthorized solicitation; (d) is infected by or contains viruses, malware, spyware, worms, or any other code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer, software, hardware, program, or telecommunications equipment; (e) is likely to interfere with or disrupt the Site or the Horsecom Services, or any server or network connected thereto, or is inconsistent with any requirements, policies, procedures, or requirements of networks connected to the Site or the Horsecom Services; (f) violates any federal, state, or local law, statute, regulation, rule, code, or ordinance, or otherwise applicable laws regarding transmission of technical data; or (g) imposes an unreasonable or disproportionate workload on Horsecom, the Site, or the Services. Horsecom shall not prescreen any Content but reserves the right to remove without notice any Content that Horsecom deems, in its sole discretion, to constitute Prohibited Content as herein defined.
Content Modification. You acknowledge and specifically authorize Horsecom to change, alter, or modify the Content as necessary in order to transmit it over one or more networks and to conform and adapt it, the Site, or the Services to any technical requirements of connecting networks, devices, hardware, software, and the like.
Disclosure of Content. Horsecom may preserve and disclose Content (i) when it is or reasonably determines that it is obligated to preserve and/or disclose Content pursuant to any applicable international, treaty, federal, state, or local law, statute, code, rule, regulation, or ordinance; (ii) to comply with any legal process; (iii) to enforce the terms of this Agreement; (iv) to respond to complaints or claims that the Content violates any third party rights; (v) to protect any right or property of Horsecom; and (vi) to protect the personal safety or property of any user of the Site or the Services.
Storage. Horsecom does not warrant or guarantee continued access to any Content transmitted to or stored on the Site or used in any manner on the Site or as part of the provision of the Services, and this Agreement further expressly excludes any warranty that such Content will not be lost, damaged, or destroyed. Horsecom shall not maintain a copy, in whole or in part, of any Content, and further shall be held harmless in the event of a failure to store any Content. Horsecom assumes no responsibility for, and shall be held harmless in the event of, any injury or damage to you arising out of the deletion or failure of communications, addresses, or personalization settings.
Comments. Comments left by users on the site shall conform to the content requirements set forth herein. User comments are not the statements or representations of Horsecom and Horsecom assumes no liability for same. Horsecom may, but is not required to, remove any user comment at any time in Horsecom’s sole and absolute discretion.
Modification. Horsecom may (i) establish general practices and use limits concerning the Site and the Services, (ii) limit the size of communications that may be transmitted through the Site and the Services, (iii) limit the amount of Content that may be stored or processed by you on or through the Site, (iv) limit your access to the Site as may be necessary and reasonable under the circumstances, (v) change or modify its general practices in its sole discretion and without notice to you, (vi) change or modify the Site, this Agreement, or the Horsecom Services in its sole discretion and without notice to you, (vii) quarantine prohibited Content; (viii) modify domain and user settings in its sole discretion and without notice to you (including without limitation modifications designed to eliminate spam or bulk mail); and (ix) modify, suspend, or discontinue the Site or the Services as necessary for routine maintenance, extraordinary repairs, or due to an attack by hackers or other third party.
Horsecom’s Proprietary Property. The Site, the Horsecom Services, and any software, hardware, platform, server, code, or other materials used in connection with the Site and the Services (collectively “the Proprietary Materials”), all of which are owned by Horsecom and/or its affiliates and licensors, contain proprietary and confidential information not available to the public and protected by intellectual property and trade secret laws, including without limitation the Uniform Trade Secrets Act as well as patent, trademark and copyright protections. Subject to your continued compliance with the terms of this Agreement, including without limitation payment of all sums due hereunder, Horsecom hereby grants to you a non-exclusive, non-transferable, limited license to use the Site and the Horsecom Services on a computer or mobile device and on Horsecom products. You shall not, by or through any representative, agent, employee, director, officer, shareholder, partner, member, or third party, reverse engineer, reverse assemble, attempt or purport to discover any source code; sell, assign, sublicense, grant a security interest in or otherwise transfer any right in or to the Proprietary Materials; copy, modify, rent, lease, loan, sell, distribute, or create derivative works of (or based on) the Proprietary Materials, in whole or in part; or use modified versions of the Proprietary Materials, including without limitation obtaining unauthorized access to the Site or the Horsecom Services. You may access the Site only through the interfaces provided by or through Horsecom.
Remedies. You acknowledge that any breach of (i) Horsecom’s rights in and to its Proprietary Property or (ii) the intellectual property protection provisions of this Agreement are such that legal remedies alone would be insufficient to protect Horsecom’s rights and interests. You further agree that in the event of a breach or potential breach of the Horsecom’s Proprietary Property rights or any intellectual property protection section of this Agreement, Horsecom may petition any court of competent jurisdiction for a restraining order, injunction, or such other equitable remedy as it may deem appropriate, and you expressly waives any defense to the inapplicability or inappropriateness of such equitable remedies. Horsecom shall under no circumstances be required to post a bond, and you hereby waive any right to demand it.
Remote Access. You may, but are not obligated to, grant Horsecom, its agents, contractors, and or/employees, access to your computer, hardware, software, and files for Horsecom to render the Horsecom Services. You hereby agree that Horsecom shall not be responsible or liable for any damages, data loss, data breach, or other property or other injury of any nature whatsoever arising from, in whole or in part, Horsecom’s remote access and you indemnify and holds Horsecom, its owners, shareholders, members, partners, directors, officers, agents, employees, and contractors, harmless from any and all damage associated with the implementation and use of remote access.
Termination. In the event of your breach of any term of this Agreement, Horsecom, in its sole discretion, may suspend or terminate your account (including without limitation deactivation of your password) and remove and discard the Content, and delete any records concerning or associated with your use of the Site or the Horsecom Services. You agree that you are not entitled to any refund in the event of termination, and that you will indemnify Horsecom and hold it harmless from any costs of any nature whatsoever caused by or attributable in whole or in part to such termination.
General Disclaimer of Warranties. USE OF THE SITE AND THE HORSECOM SERVICES IS AT YOUR SOLE AND EXCLUSIVE RISK. THE SITE AND THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE". HORSECOM EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, GUARANTEES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ANY GOODS OR TANGIBLE MATERIALS PROCURED OR OBTAINED THROUGH THE WEBSITE, REGARDLESS OF ORIGIN, MANUFACTURER, OR PRODUCER, ARE PROVIDED “AS IS” AND “AS AVAILABLE”. HORSECOM EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, GUARANTEES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. HORSECOM MAKES NO WARRANTY THAT (i) ANY INFORMATION OR ADVICE OBTAINED FROM THE USE OF THE SITE OR THE SERVICES WILL BE ACCURATE OR RELIABLE, (ii) THE QUALITY OF ANY SERVICES OR INFORMATION OBTAINED AS A RESULT OF THE USE OF THE SITE OR THE SERVICES WILL MEET LICENSEE’S EXPECTATIONS, AND (iii) ANY ERRORS THAT IMPAIR THE FUNCTIONALITY OF THE SITE OR THE SERVICES WILL BE REPAIRED. LICENSEE ASSUMES ALL RISK OF LOSS FROM DAMAGE TO ITS COMPUTERS, SOFTWARE, HARDWARE, DRIVES, CODE, DATA, INFORMATION, CONTENT, INTELLECTUAL PROPERTY, AND OTHER PROPERTY OF ANY NATURE WHATSOEVER CAUSED IN ANY MANNER OR BY ANY METHOD FROM MATERIAL TRANSMITTED, RECEIVED, DOWNLOADED OR OTHERWISE OBTAINED OR SENT USING THE SITE. YOU ASSUME ALL RISK OF LOSS CAUSED BY VIRUSES, MALWARE, WORMS, OR OTHER PROGRAMS OR MATERIALS TRANSMITTED BY OR THROUGH THE SITE.
Warranties; Jurisdictional Limitations. Any warranty disclaimers in this Agreement do not apply to the extent that they are otherwise void or disallowed pursuant to the law of a jurisdiction whose laws apply to the interpretation or enforcement hereof, but nothing herein shall alter or change any choice of law provisions set forth in this contract. Any limitations imposed by such jurisdiction on warranty disclaimers are incorporated herein by reference to the limited extent required by law without waiving or amending any choice of law provision set forth in this contract.
Limitation of Liability. In no event shall Horsecom be liable to you for any incidental, indirect, special, consequential, or punitive damages, regardless of the nature of the claim or liabilities to third parties arising from any source, even if a party to this Agreement has been advised of the possibility of damages.
Indemnification. In addition to any other indemnification obligations as set forth in this Agreement, you (“the Indemnifying Party”) shall indemnify and hold harmless Horsecom, its officers, directors, employees, shareholders, agents, partners, members, successors, and assigns (each “an Indemnified Person”) from and against any and all demands, claims, causes of action, losses, damages, liabilities, costs, and expenses (including, without limitation, attorneys’ fees) asserted by any third party against an Indemnified Person, resulting from any breach of the Indemnifying Party’s representations and warranties, any breach or non-fulfillment in the performance of the Indemnifying Party’s covenants and agreements, or negligence by the Indemnifying Party or an agent or independent contractor of the Indemnifying Party in connection with the performance of the Indemnifying Party’s covenants and agreements hereunder. Such indemnification obligation shall include without limitation claims and liabilities arising out of the transmission, use, or posting of Content; use of the Site or the Horsecom Services; connection to and transmission of Content to or from the Site; your violations of this Agreement; and your violations of any third party’s rights, including without limitation any third party’s intellectual property rights.
Jury Trial Waiver. IN THE EVENT OF ANY DISPUTE YOU HAVE WITH HORSECOM, YOU HEREBY VOLUNTARILY AND KNOWINGLY WAIVE THE RIGHT TO A TRIAL BY JURY ON ANY ISSUE AND IN ANY CAUSE OF ACTION.
Class Action Waiver. In the event of a dispute between you and Horsecom, resolution of same, whether by arbitration, litigation, or otherwise, shall proceed solely on an individual basis. You hereby waive any right to assert any claim or cause of action on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of others. Claims may not be joined or consolidated unless agreed to in writing by all parties. No award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party.
Compliance with COPPA. The Site and Services are not intended for access or use by children under the age of 13 years.
Miscellaneous Provisions. Failure of a party to enforce any provision of this Agreement shall not constitute a waiver of such provision or of the right of a party at any time to avail itself of such remedies as it may have for any breach or breaches of such provision. The provisions of this Agreement are severable. Should any part or portion hereof be deemed void or unenforceable by a court of competent jurisdiction, the remaining parts and portion shall remain in full force and effect. This Agreement represents the entire understanding by and between you and Horsecom and supersedes any other representations, promises, or statements not wholly consistent herewith. This Agreement may only be modified in writing as provided above. You acknowledge the receipt and sufficiency of the consideration set forth in this Agreement. This Agreement shall be construed pursuant to the laws of the State of New York without regard to its conflict of law provisions. Any dispute arising out of, or in any way connected with, this Agreement, is subject to determination only by the Federal or State courts located in the State of New York and within New York County. You hereby waive any defense of improper venue, lack of personal jurisdiction, or forum non-conveniens. You warrant that you have read this Agreement, understand and acknowledge each of its provisions, have the authority to agree to and be bound by this Agreement on your own behalf as well as on behalf of any entity or third party you represent, and agree on your behalf and on behalf of any entity or third party you represent to be bound by the terms and conditions herein. Horsecom shall be entitled to recoup from you its costs, including without limitation its reasonable attorneys’ fees, in bringing or defending any lawsuit or other proceedings that concern in whole or in part the enforcement and/or interpretation of this Agreement. Horsecom shall not be liable in the event that the performance of any obligation of Horsecom hereunder is rendered impossible by any circumstance beyond its control and not created by its own act or omission, including flood, fire, and other natural disasters, war, riot or social unrest, work stoppage, act of terrorism, and Acts of God. Horsecom shall resume performance pursuant to the provisions of this Agreement upon the abatement of the force majeure. Any notice required to be given to you may be made, in Horsecom’s sole discretion, by posting same conspicuously on the Site or by email to any email address provided by you. Notice to Horsecom shall be by U.S. Mail to Horsecom USA, Inc., 315 West 36th Street, 10th Floor, New York, NY 10018.
As of April 26, 2017