YOU ACKNOWLEDGE AND AGREE THAT BY REGISTERING FOR, ACCESSING OR USING THE SOFTWARE, YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THESE TERMS, AND THAT YOU ARE ENTERING INTO A LEGALLY BINDING AGREEMENT (THE “AGREEMENT”) WITH EC SUBJECT TO THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCESS OR USE THE SOFTWARE.
Wherever used in these Terms, “you”, “your” or similar terms means the person or legal entity accessing or using the Software. If you are accessing or using the Software on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms.
1. SOFTWARE ACCESS
Subject to the terms and conditions of this Agreement, EC grants you a limited, non-exclusive, non-transferable, non-sublicensable and revocable license to access and use the Software solely for your personal or internal business purposes.
2. MODIFICATION OF SOFTWARE OR TERMS
EC reserves the right, in its sole discretion, to modify the Software (including the addition, modification or removal of functionality, features or content) or these Terms, at any time and without prior notice. If EC modifies these Terms, EC will post the changes via the Software or otherwise provide you with notice. Your continued use of the Software following our posting of the changes or providing you with notice will mean that you accept and agree to such changes. You are responsible for regularly consulting the current version of the Terms prior to your use of the Software. If the modified Terms are not acceptable to you, you must stop using the Software.
3. USER CONDUCT
3.1 You are responsible for your own conduct when using the Software. You agree that you will only use the Software for lawful purposes and in a manner consistent with these Terms and any applicable rules, policies and guidelines established by EC in respect of the Software from time to time. Misuse or unauthorized use of the Software and its related systems or networks, or of any information or material available through the Software is strictly prohibited and EC reserves the right, at its sole discretion and without liability or prejudice to any other remedies that it may have, to immediately suspend, limit or terminate access by any user who is using, or who EC reasonably believes is using, the Software in violation of these Terms or any applicable laws, regulations or third party rights, or in a manner which is harmful to EC, the Software, other users or any third parties.
3.2 Without limiting Section 3.1, you agree not to use the Software to: (i) engage in conduct that would constitute a criminal or quasi-criminal offence, that would give rise to civil liability, or that would otherwise violate any applicable local, provincial, state, federal or international law or accepted Internet protocol; (ii) communicate, transmit, upload or post information that is inaccurate, incomplete, misleading, false or libellous; (iii) communicate, transmit, upload or post information or material that infringes intellectual property rights, privacy rights, rights of publicity or any other rights of any person; (iv) communicate, transmit, upload or post material that is obscene, vulgar, pornographic, abusive, defamatory, threatening, racist, sexist or otherwise objectionable; (v) copy any part of the Software other than as required for its normal use as permitted by these Terms; (vi) attempt to interfere with or gain unauthorized access to the Software or its related systems or networks; (vii) use the Software for any commercial or other purposes that are not expressly permitted by these Terms; (viii) use or attempt to use the Software to gain unauthorized access to any person’s data or network; (ix) use any robot, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the Software for any purpose; or (x) otherwise use the Software in a manner that could, in the opinion of EC, adversely affect the ability of other users to use the Software or the Internet, including post or transmit information or data containing worms, viruses, Trojan horses or other disruptive components.
4. Health & Safety Disclaimer
4.1 You acknowledge that equestrian activity, sports and other forms of physical activity carry the risk of injury and death, and it is your responsibility to determine if any suggested exercises or activities are appropriate for your level of ability and physical or mental condition or those of the individuals for whom you are designing activities using the Software. Please consult with sports and healthcare professionals as appropriate. EC, ON ITS OWN BEHALF AND ON BEHALF OF AND ITS DIRECTORS, AGENTS, EMPLOYEES, LICENSORS, LICENSEES, CONTRACTORS, SUCCESSORS AND ASSIGNS, AND CO-OWNERS OF THE SOFTWARE, (COLLECTIVELY, “AFFILIATES AND REPRESENTATIVES”) EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY ARISING FROM OR RELATING TO ANY INJURY OR LOSS THAT YOU OR A THIRD PARTY MAY SUFFER AS A RESULT OF YOUR USE OF THE SOFTWARE DUE TO ANY CAUSE WHATSOEVER, INCLUDING WITHOUT LIMITATION, NEGLIGENCE OR GROSS NEGLIGENCE.
5. Intellectual Property
5.1 You acknowledge and agree that the Software, and all information, materials and other content (including activities, text, images, video and audio that EC makes available in association with or through the Software, collectively, “EC Content”) constitutes valuable intellectual property of EC and its third party co-owners, suppliers and licensors, and is protected by Canadian, United States, European and other international laws, including without limitation, copyright and trademark laws and international treaties. All proprietary rights in and to all intellectual and industrial property contained in the Software and the EC Content, including any corrections, improvements, upgrades, updates, bug fixes and modifications to such intellectual and industrial property, shall be and remain the exclusive property of EC and its suppliers and licensors, and you shall have no rights or interests therein except for the right to use as set forth in this Agreement.
5.2 If you submit any suggestions, comments or other feedback (“Feedback“) to EC regarding the Software, you agree that EC shall have a worldwide, perpetual, irrevocable, unrestricted, unlimited and fully paid-up right and license to use, copy, modify, publish, disclose, distribute, license, sublicense, incorporate into its products or services, and create derivative works of, any Feedback or any ideas or materials contained in or resulting from any Feedback, for any and all commercial and non-commercial purposes. For greater certainty, you agree that EC may use and exploit any Feedback in any way at our discretion, without attribution, compensation or obligation to you or to any other party.
5.3 As between you and EC, you retain ownership of all information, programs, progressions, materials and other content that you create, publish, transmit or otherwise make available through the Software (“User Content”). You are solely responsible for all your User Content. Without limitation, you represent and warrant that (i) you have the right to publish or otherwise make available any User Content made available by you; and (ii) your User Content (or any portion thereof) will not infringe the intellectual property rights, privacy rights, rights of publicity or any other rights of any person, or result in the violation of any applicable law or regulation.
7. Term and Termination
7.1 This Agreement shall continue until terminated in accordance with this Section.
7.2 You may terminate this Agreement at anytime by sending us a notice of termination in accordance with Section 12.6.
7.3 EC may terminate this Agreement for convenience by providing you with thirty (30) days’ notice. EC may immediately, without notice, terminate this Agreement if: (i) you have violated these Terms; (ii) you have violated applicable laws, regulations or third party rights; or (iii) EC determines, in its sole discretion, you have used the Software in a manner which is harmful to EC, the Software, other users or any third parties.
7.4 Upon termination of this Agreement for any reason: (i) you shall immediately discontinue your use of the Software; (ii) any rights or licenses granted to you under these Terms will terminate; and (iii) any amounts paid to EC will be non-refundable. You are not entitled to a restoration of any of your User Content following termination.
7.5 Any provision of these Terms in favour of EC or which expressly, or by their nature, are intended to survive termination shall survive the expiration or termination of this Agreement.
8. Disclaimer of Warranties
8.1 YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK, AND THAT THE SOFTWARE ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EC EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EC EXPRESSLY DISCLAIMS THAT: (I) THE SOFTWARE WILL MEET YOUR EXPECTATIONS OR SATISFY YOUR REQUIREMENTS; (II) THE SOFTWARE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SAFE, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE; (III) THE RESULTS OBTAINED FROM YOUR USE OF THE SOFTWARE WILL BE COMPLETE, ACCURATE, RELIABLE OR USEFUL; AND (IV) THAT ANY ERRORS OR DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SOFTWARE WILL BE CORRECTED.
9. Limitation of Liability
9.1 YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EC AND ITS AFFILIATES AND REPRESENTATIVES WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF EC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM OR RELATED TO: (I) YOUR ACCESS TO OR USE OF THE SOFTWARE, INCLUDING ANY CONTENT, PRODUCTS, SERVICES, OFFERINGS, INFORMATION OR OTHER MATERIAL AVAILABLE THROUGH THE SOFTWARE; (II) ANY PERSONAL INJURY RESULTING FROM OR RELATED TO YOUR USE OF THE SOFTWARE, (III) ANY ERRORS OR OMISSIONS IN THE SOFTWARE OR ANY CONTENT; (IV) THE SUSPENSION OR TERMINATION OF YOUR ABILITY TO ACCESS THE SOFTWARE; (V) ANY INTERRUPTION TO OR CESSATION OF THE DELIVERY OF THE SOFTWARE OR FAILURE OF OUR SYSTEMS; (VI) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (VII) UNAUTHORIZED ACCESS TO OR ALTERATION OF OUR SYSTEMS OR YOUR TRANSMISSIONS, DATA AND/OR PERSONAL INFORMATION; (VIII) STATEMENTS OR CONDUCT OF ANY USER OR OTHER THIRD PARTY USING THE SOFTWARE; (IX) ANY BUGS, VIRUSES OR THE LIKE THAT ARE TRANSMITTED TO OR THROUGH THE SOFTWARE BY ANY THIRD PARTY; OR (X) ANY OTHER MATTER OR EVENT RELATING TO YOUR OR ANY OTHER PARTY’S USE OF THE SOFTWARE. YOU ACKNOWLEDGE AND AGREE THAT IF YOU ARE DISSATISFIED WITH OR HARMED BY THE SOFTWARE, OR WITH ANYTHING RELATED TO THE SOFTWARE, YOUR SOLE AND EXCLUSIVE REMEDY WILL BE TO DISCONTINUE USE OF THE SOFTWARE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 7.
9.2 YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY GREATER IF EC WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN.
You agree to defend, indemnify and hold us, and our Affiliates and Representatives, harmless from and against any and all claims, actions or demands, including without limitation reasonable legal and accounting fees, resulting from or related to: (i) your access to or use of the Software or any User Content; (ii) your violation of these Terms; or (iii) your violation of any third party right, including without limitation, any intellectual property, privacy or proprietary right, or obligation of confidentiality. You will use your best efforts to cooperate with EC in the defense of any claim. EC reserves the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
11. Third Party Services
The Software may enable you to access third party websites, applications or materials linked to or accessible through the Software (“Third Party Services”). EC provides access to Third Party Services as a convenience only, and such access does not imply any warranties, representations, endorsements, approvals or verification by EC of such Third Party Services. You acknowledge that the use of Third Party Services may be subject to the terms and conditions of such Third Party Services, and that any contract entered into or transaction completed through Third Party Services is between only you and the relevant third party.
12.1 Governing Law. You agree that these Terms, and your use of the Software, are governed exclusively by the laws of the Province of Ontario and the federal laws of Canada applicable therein (excluding conflicts and choice of laws principles). Any contract formed through the use of the Software will be deemed to have been formed and executed within the Province of Ontario, Canada. To the extent it which it would otherwise apply, the application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
12.2 Dispute Resolution
(a) Means of Resolution. You and EC agree that any disputes arising under these terms or otherwise in connection with your use of the Software will be resolved through arbitration under the Arbitration Act, 1991, S.O. 1991, c. 17, as amended from time to time. Arbitration will be held in Ottawa, ON, Canada, and conducted in the English language. Notwithstanding the foregoing, you agree that: (i) the courts in any relevant venue will have jurisdiction for the purposes of obtaining and enforcing injunctive or other equitable relief, and for the purposes of enforcing the decision of any arbitrator appointed in accordance with this provision, and (ii) EC may bypass arbitration in cases of fraud or other crimes against it, and in the case of interference with its technical operations or violations of its rights or property.
(b) Class Waiver. You acknowledge and agree that you and EC are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and EC otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this paragraph is held unenforceable, then the entirety of this Section 12.2 will be deemed void.
12.3 Jurisdiction and Venue. If Section 12.2 is deemed to be void or is otherwise inapplicable, all disputes under these Terms will be resolved by a court of competent jurisdiction located in Ottawa, Ontario, Canada, provided that the courts in any relevant venue will have jurisdiction for the purposes of obtaining and enforcing injunctive or other equitable relief.
12.4 Force Majeure. Neither party shall be liable for delay or failure in performance (other than the making of payments) resulting from any cause beyond the reasonable control of such party, including but not limited to, acts of God, acts of war, riot, fire, flood, or other disaster, acts of government, strike lockout, power failures, or the inability to use or the failure of any third party telecommunications carrier or other services, which events or conditions prevent in whole or in part the performance by such party of its obligations hereunder or which renders the performance of such obligations so difficult or costly as to make performance commercially unreasonable.
12.5 Assignment. You may not assign any of your rights or obligations under these Terms without our prior written consent. EC may freely assign our rights and obligations under these Terms, either in part or in full, without notice to you.
12.6 Notice. EC may communicate with you about the Software or these Terms, including any changes to these Terms, by email or by posting notices via the Software. Unless expressly prohibited by law, you consent to receive communications relating to the Software or our business relationship from EC electronically, and agree that all notices, waivers, agreements, disclosures and other communications satisfy any legal requirements that such communications be in writing. You may provide legal notice to EC at firstname.lastname@example.org.
12.7 Nature of Relationship. Nothing in these Terms or from your use of the Software will create or be deemed to create any partnership, joint venture, agency, franchise or other business relationship between you and EC, even if your use of the Software is for a commercial purpose which has been authorized by us. You and EC will, at all times, be and remain independent, third-party contractors.
12.8 Severability. The provisions of these Terms are severable. If any individual provision is held to be invalid, unenforceable or contrary to applicable law, such provision shall be construed, limited, altered or deleted, as necessary, to eliminate the invalidity, unenforceability or conflict with applicable law while endeavoring to preserve the intention of these Terms, and all other provisions shall remain in full force and effect.
12.10 Waiver. The failure by EC to exercise or enforce any right or remedy under these Terms will not constitute a waiver of such right or remedy.
12.11 Contact. If you wish to contact EC with any questions, comments or concerns regarding the Software or these Terms, please email email@example.com.