1.1 Top Horse Trails PRODUCTS
These Terms & Conditions (these “Ts&Cs”) contain the terms and conditions on which we supply content, products or services listed on www.Top Horse Trails.com (the “Website”), through our applications (each an “App” and collectively the “Apps”) or via other delivery methods to you (the Website and such content, products, services and the Apps, each as may be updated from time-to-time at the sole discretion of Top Horse Trails, are collectively referred to herein as the “Product” or “Products”). Your use of certain Products may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in these Ts&Cs or will be presented to you on or in connection with such Products. If these Ts&Cs are inconsistent with the Supplemental Terms, the Supplemental Terms shall control solely to the extent of the conflict. The applicable Supplemental Terms are hereby incorporated into these Terms by reference (all applicable Supplemental Terms and these Ts&Cs, collectively, the “Terms”). Please read these the carefully before accessing, using, or ordering any Products from the Website, the App, or third party App stores (e.g. the Apple App Store, the Android Play Store, Amazon, etc.). The terms “Top Horse Trails,” “us” or “we” refers to Top Horse Trails, LLC. The term “Device” refers to any device which is used to access the Products including but not limited to computers, smart phones and tablets. The term “you” refers to the user of the Products. When you order any Products (each such instance, an “Order”), visit the Website, download an App, or otherwise use or access the Products, you agree to be bound by these Terms. If you do not agree to these Terms, please refrain from using the Products.
Top Horse Trails MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING THE ACCURACY, COMPLETENESS OR SUITABILITY OF THE INFORMATION AND DATA PROVIDED THROUGH THE PRODUCTS, AND SUCH INFORMATION AND DATA SHOULD NOT BE CONSTRUED OR USED AS A LEGAL DESCRIPTION. ACTIVITIES ASSOCIATED WITH THE PRODUCTS CAN AT TIMES INVOLVE RISK OF INJURY, DEATH, PROPERTY DAMAGE, AND OTHER DANGERS ASSOCIATED WITH SUCH ACTIVITIES. YOU UNDERSTAND THAT Top Horse Trails CANNOT AND DOES NOT ASSUME RESPONSIBILITY FOR ANY SUCH PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE RESULTING FROM YOUR USE OF THE PRODUCTS. Top Horse Trails IS NOT RESPONSIBLE FOR THE MISUSE OR MISREPRESENTATION OF THE INFORMATION AND/OR DATA PROVIDED THROUGH THE PRODUCTS, AND ANY RELIANCE YOU PLACE ON SUCH INFORMATION AND/OR DATA IS THEREFORE STRICTLY AT YOUR OWN RISK.
1.2 ARBITRATION NOTICE AND CLASS ACTION WAIVER
PLEASE NOTE THAT THESE TERMS CONTAIN AN ARBITRATION AGREEMENT. EXCEPT FOR CERTAIN TYPES OF DISPUTES AS LISTED IN THE ARBITRATION AGREEMENT, YOU AND Top Horse Trails AGREE THAT DISPUTES RELATING TO THESE TERMS OR YOUR USE OF THE PRODUCTS WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND Top Horse Trails WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
1.3 CONSENT TO COMMUNICATION
PLEASE BE AWARE THAT SECTION 3.4 OF THESE TERMS CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, PHONE CALL, TEXT MESSAGE, AND PUSH NOTIFICATION.
1.4 SUBSCRIPTION RENEWAL TERMS
IF YOU PURCHASE A SUBSCRIPTION (AS DEFINED BELOW) TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT Top Horse Trails’ THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL / DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 3.5(f) BELOW.
1.5 BASIS OF LICENSE
AS PART OF YOUR ACCESS TO AND USE OF THE PRODUCTS, YOU AFFIRMATIVELY CONSENT TO THE PROCESSING AND STORAGE OF YOUR PERSONAL INFORMATION IN THE UNITED STATES, INCLUDING THE PROCESSING AND STORING OF YOUR PERSONAL INFORMATION IN THE UNITED STATES FOR THE PURPOSES OF PROCESSING PAYMENTS AND TRACKING INDIVIDUAL USE OF THE PRODUCTS. BY VIEWING, ACCESSING, OR OTHERWISE USING THE PRODUCTS, YOU ACKNOWLEDGE THAT YOU UNDERSTAND AND AGREE THAT THE UNITED STATES MAY NOT HAVE THE SAME LEVEL OF PROTECTIONS FOR YOUR PERSONAL INFORMATION THAT EXIST IN YOUR COUNTRY OF RESIDENCE, AND YOU NONETHELESS CONSENT TO THE PROCESSING AND STORAGE OF YOUR PERSONAL INFORMATION IN THE UNITED STATES. WE WILL TAKE MEASURES AS REQUIRED TO COMPLY WITH APPLICABLE LAW REGARDING THE TRANSFER, STORAGE AND USE OF CERTAIN PERSONAL INFORMATION.
1.6 CHANGES TO TERMS
Top Horse Trails reserves the right, in its sole discretion, to change or update these Terms, or any other of our policies or practices, at any time. If we make any material changes to these Terms, we will notify users by posting such changed or updated Terms on this page, and indicate the date these Terms were last revised. We may also provide notice of such changes through the Products’ user interface, in an email notification or through other reasonable means. Any changes or updates will be effective immediately for new users of the Products, and the sooner of (i) thirty (30) days after posting, or (ii) upon acceptance of such updated Terms for existing users of the Products. Your continued use of the Products after any changes are made constitutes your agreement to abide by the updated Terms.
2.1 Subject to your ongoing compliance with these Terms, and payment of all applicable fees, Top Horse Trails grants you a limited, non-exclusive, non-transferable, revocable license to stream, download and make personal non-commercial use of the Products.
2.2 The Products contain or embody copyrighted material, proprietary material or other intellectual property of Top Horse Trails or its licensors. All right, title and ownership in the Products remain with Top Horse Trails or its licensors, as applicable. The rights to download and use the Products are licensed to you and are not being sold to you, and you have no rights in them other than to use them in accordance with this License Agreement and our other Terms.
2.3 A limited amount of Materials (as defined below) may be marked and authorized by Top Horse Trails for users to share in their personal social channels (Facebook, Twitter, etc.), as part of your blog or other online commentary, analysis or review (“User Commentary”) in accordance with the functionality of the Products (such Materials, the “Distribution Content”). Top Horse Trails grants you a limited right to download, reproduce and distribute Distribution Content over the internet solely as part of your User Commentary. You may modify such Distribution Content solely as required to technically enable the display and distribution of such Distribution Content (e.g., a change in video format or file size) provided such modification does not materially alter the substance or quality of such Distribution Content. Your display and distribution of Distribution Content may also be subject to other terms and conditions that are set forth in the description of such content in the Products, such as time-limited restrictions on display and distribution of Distribution Content. You agree not to publish the Distribution Content with other content that is false, inaccurate, or misleading or that is, or that encourages activity or conduct that is, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable. Distribution Content may contain trackers that enable us to collect information with respect to the distribution and consumption of such content. Top Horse Trails reserves the right to discontinue providing any Distribution Content at any time, or to direct you to cease displaying, or otherwise using, any Distribution Content for any or no reason, without liability to you or any third party.
2.4 You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link from any website that is not owned by you. The Products must not be framed on any other website, nor may you create a link to any part of the Products unless you have written permission to do so from Top Horse Trails. We reserve the right to withdraw such permission immediately upon written notice to you. The website from which you are linking must comply in all respects with the content standards set out in our acceptable use policy. If you wish to make any use of Materials (as defined below) on or in the Products other than that set out above, please address your request to email@example.com.
2.5 You agree that you will not and you will not assist or permit any third party to: (a) copy, store, reproduce, transmit, modify, alter, reverse-engineer, emulate, de-compile, or disassemble the Products in any way, or create derivative works of the Products; (b) use the Products or any part of them to create any tool or software product that can be used to create software applications of any nature whatsoever; (c) rent, lease, loan, make available to the public, sell or distribute the Products in whole or in part; (d) tamper with the Products or circumvent any technology used by Top Horse Trails or its licensors to protect any content accessible through the Products; (e) circumvent any territorial restrictions applied to the Products; or (f) use the Products for any commercial purpose without the express written consent of Top Horse Trails. Except as expressly set forth in these Terms, you may not otherwise download, display, copy, reproduce, distribute, modify, perform, transfer, create derivative works from, sell or otherwise exploit any content, code, data or Materials in the Products. If you make other use of the Products, or the content, code, data or Materials thereon, except as otherwise provided above, you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. Top Horse Trails will enforce its intellectual property rights to the fullest extent of the law, including without limitation seeking criminal prosecution.
2.6 If you purchase a Subscription, such Subscription may include the right to create and reproduce an unlimited number of hard copy reproductions of certain Materials (as defined below) contained in the Products for your personal, in-house business, or intra-institutional use, subject to the property rights notice and credit requirements set forth below. Any included Top Horse Trails or third party copyright notices must appear in legible form on or adjacent to each reproduction. You may distribute hard copy reproductions on paper in accordance with this section, as long as the reproductions are distributed without charge, in a non-commercial manner and for non-commercial purposes. We ask that you obtain a supplemental license in writing from Top Horse Trails before you reproduce any reproductions in a publication that is for sale or resale or that contains paid advertisements.
MEMBERSHIPS AND SUBSCRIPTIONS
3.1 BECOMING A MEMBER
3.2 USER INFORMATION
You are responsible for maintaining the confidentiality of your Member Account, password and other User Information and for restricting access to your Device to further help protect such information. You are responsible for keeping your User Information up-to-date. Top Horse Trails will not be liable for any loss or damage arising from your failure to comply with this Section.
3.3 USE OF Top Horse Trails BY MINORS
You must be 18 years of age, or the age of majority in your province, territory or country, to become a Member. Individuals under the age of 18, or the applicable age of majority in such individual’s jurisdiction, may utilize the Products only with the supervision and consent of a parent or legal guardian, under such parent or guardian’s Member Account and otherwise subject to these Terms. Individuals under the age of 13 may not access or use the Products.
3.4 COMMUNICATIONS FROM Top Horse Trails
As a Top Horse Trails Member, you will receive access to certain features and functions of the Products that are not available to non-Members. By agreeing to become a Member you opt-in to receiving occasional special offers, marketing materials, surveys and Product-based communication emails. You can unsubscribe from Top Horse Trails commercial emails by following the opt-out instruction in these emails. Top Horse Trails memberships and Subscriptions (as defined below) are not transferable and therefore cannot be sold or exchanged or transferred in any way whatsoever. By using the Mobile Services (as defined below), you agree that we may communicate with you regarding Top Horse Trails and other entities by SMS, MMS, text message or other electronic means to your Device, including push notifications and calls, and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your User Information to ensure that your messages are not sent to the person that acquires your old number.
3.6 DEVICE REQUIREMENTS
The Products include certain services that are available via a mobile device, including (i) the ability to browse the Website from a mobile device and (ii) the ability to access certain features through an App downloaded and installed on a Device (collectively, the “Mobile Services”). To the extent you access the Products through a Device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
3.7 CHANGING FEES AND CHARGES
We may at any time and from time to time, in our sole discretion, change the fees and charges, or add new fees and charges, in relation to any of the Products. We will notify you at least 30 calendar days in advance of any such change. Your continued use of the Products after the price change becomes effective constitutes your agreement to pay the changed amount. If you do not agree to the change, you may cancel your membership or Subscription in your account settings or by emailing firstname.lastname@example.org.
PROHIBITED USE OF THE PRODUCTS
4.1 Prohibited Activities
You agree not to: (i) upload, post, email or otherwise send or transmit or introduce any material that contains software viruses or any other computer code, files or programs designed to interrupt, harm, damage, destroy or limit the functionality of any computer software or hardware or equipment linked directly or indirectly with the Products or the Products themselves; (ii) interfere with the servers or networks underlying or connected to the Products or to violate any of the procedures, policies or regulations of networks connected to the Products; (iii) access the Products in an unauthorized manner; (iv) interfere with any other user’s use and enjoyment of the Products; (v) request or offer to perform a request that is illegal or violates any of the terms set forth herein; (vi) impersonate any person or entity, including any employee or representative of Top Horse Trails; or (vii) use software or automated agents or scripts to produce multiple Member Accounts, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Products (provided, however, that we may conditionally grant to the operators of public search engines revocable permission to use spiders to copy Materials from the Top Horse Trails Products for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the Materials, but not caches or archives of such Materials, subject to the parameters set forth in our robots.txt file).
You agree that in connection with your use of the Products, you will not trespass on, or in any manner attempt to gain or gain access to any property or location where you do not have a right or permission to be (“Private Property”). You acknowledge that Top Horse Trails does not have and affirmatively disclaims any obligation or ability to provide you with complete and accurate information regarding the whereabouts of Private Property you may encounter when using or in connection with your use of the Products. Regardless of whether Top Horse Trails designates any content with a warning regarding its proximity to Private Property, you are solely responsible for obtaining all required permissions to approach or enter Private Property in connection with your use of the Products.
4.3 Disruptive and Disrespectful Use
You agree to be mindful and respectful of places you visit in connection with your use of the Products. You agree that your use of the Products will be appropriate to the environment around you and that you will not create excessive noise or other disturbances in connection with your use of the Products. You agree to act in a manner that is respectful and appropriate to the areas where you use the Products, including while interacting with other people, disposing of trash, using restroom facilities, using the Product in large groups, parking your vehicle, and otherwise.
4.4 Other Illegal Use
You agree not to impersonate any other person while using the Products, conduct yourself in an offensive manner while using the Products, or use the Products for any illegal, immoral or harmful purpose.
4.5 Reporting for and Release of Liability for Product Misuse:
By breaching the provisions of this Section 4, you may commit a criminal offense under applicable laws. We reserve the right to report any such breach to the relevant law enforcement authorities and we may cooperate with those authorities in any investigation related to your use of the Products, including by disclosing your identity to them. In the event of such a breach, your right to use the Products will cease immediately. If you have a dispute with any third party relating to your use or misuse of the Products, you hereby release the Top Horse Trails Parties (as defined below) from all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you also waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
MATERIALS OFFERED THROUGH THE PRODUCTS
Top Horse Trails®, the Top Horse Trails logo and all other Top Horse Trails product or service marks (the “Top Horse Trails Marks”) are trademarks of Top Horse Trails. All intellectual property, other trademarks, logos, images, product and company names (“Third-Party IP”) displayed or referred to on or in the Products are the property of their respective owners. Except as expressly set forth herein, nothing grants you any license or right to use, alter or remove or copy the Top Horse Trails Marks or any Third-Party IP. All use of the Top Horse Trails marks shall inure to the benefit of Top Horse Trails. Your unauthorized use or misuse of the Top Horse Trails Marks or any Third-Party IP displayed on the Products is strictly prohibited. Top Horse Trails reserves all rights to enforce its trademark rights to the fullest extent of the law.
6.1 The Products may let you submit Material, including text, files, images, photos, and recorded activity information, to us (for example, in various parts of the Products you may be able to upload a photo to your profile, write reviews of trails, upload photos of your outdoor activities, or upload files that record your activities) (all such Material uploaded or made available by a user, “User Material”). User Material does not include the User Information, information related to your Order, or information which you provide in registering for and using Products. By transmitting, uploading, posting, e-mailing, or otherwise submitting User Material, you grant, and you represent and warrant that you have the right to grant, to Top Horse Trails an irrevocable, perpetual, non-exclusive, fully-paid, royalty free, worldwide license to use, telecast, copy, modify, perform, display, edit, distribute and otherwise exploit the User Material, or any portion thereof and any ideas, concepts, or know how contained therein, with or without attribution, in any manner (including, without limitation, for commercial, publicity, trade, promotional, or advertising purposes) and in any and all media now known or hereafter devised, and to prepare derivative works of, or incorporate into other works, such User Material, and to grant and authorize sublicenses of the foregoing. You also acknowledge that your User Material will not be returned to you and that Top Horse Trails has no obligation to acknowledge receipt of or respond to any User Material. If you submit User Material, you represent and warrant that you own or otherwise control the rights to your User Material. You agree to indemnify Top Horse Trails and its affiliates for all claims arising from or in connection with any claims to any rights in any User Material or any damages arising from any User Material.
6.2 Top Horse Trails reserves the right, but has no obligation, to review User Material submitted by you or other users. We are not responsible for the content of User Material provided by you or any other user. We do not endorse any User Material. We make no warranties or representations, express or implied, about User Material, including as to its legality or accuracy. You, and not Top Horse Trails, are entirely responsible for all User Material that you make available through the Products. We reserve the right, in our sole discretion, to refuse to post or to remove or edit any of your User Material, or to restrict, suspend, or terminate your access to all or any part of the Products, including without limitation where User Material does not comply with the requirements of this Section 6, with or without prior notice to you.
6.3 We may link User Material or parts of User Material to other Material, including Material submitted by other users or created by Top Horse Trails or other third parties. We may use User Material for our internal business purposes, for example, to examine trends or categories or to promote, market or advertise Top Horse Trails. You acknowledge that we may commercially benefit from use of your User Material, and have no obligation to credit you in such use.
6.4 Each time you submit User Material to us, you represent and warrant to us as follows:
6.5 User Material is not considered to be confidential. You agree not to submit any content as User Material in which you have any expectation of absolute privacy. You may be able to control the visibility of certain categories of User Material in accordance with the functionality of the Products, either through the settings in your Member Account or at the time you upload, share, or otherwise make available such User Material. Top Horse Trails may include your User Material in Top Horse Trails’ Distribution Content that is made available to others through the Products. Top Horse Trails has no control over User Material once it leaves the Products, and it is possible that others may duplicate Material found on the Products, including, but not limited to, on other sites on the Internet. You represent and warrant that you own or otherwise control the rights to your User Material. Notwithstanding anything else set forth herein, you agree to indemnify Top Horse Trails and its affiliates for all claims arising from or in connection with any claims to any rights in your User Material or any damages arising from your User Material.
THIRD-PARTY SITES AND SERVICES
7.1 We may provide links to other websites or services. You acknowledge that any interaction with such links is taken at your sole discretion and such links are provided for your convenience only. We do not review or endorse any of those websites or services. We are not responsible in any way for the availability of, the privacy practices of, the content, advertising, products, goods or other materials or resources on or available from, or the use that others make of these other websites or services. We are not responsible for any damage, loss or offense caused or alleged to be caused by, or in connection with, the use of or reliance on such websites or services.
7.2 We reserve the right to display third-party advertising and other content before, after, or in conjunction with User Materials posted on the Products, and you acknowledge and agree that Top Horse Trails has no obligation to you in connection therewith (including, without limitation, any obligation to share any revenue received by Top Horse Trails in connection with such content).
7.3 The Products contain information from the Google Maps API.
The information contained in the Products is for general information purposes only. While we endeavor to keep the information up-to-date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, accessibility (including rights of entry and/or use), security or availability with respect to the Products or the information contained on the Products for any purpose. In some cases, the Products are designed to reduce, but not eliminate, certain risks, but you hereby acknowledge and agree that the Products are not sufficient to warrant or guarantee that either no loss, no damage, or no physical harm will occur. YOU UNDERSTAND THAT Top Horse Trails CANNOT AND DOES NOT ASSUME RESPONSIBILITY FOR ANY PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE RESULTING FROM YOUR USE OF THE PRODUCTS. Top Horse Trails is not responsible for the misuse or misrepresentation of the information and/or data provided through the Products. Any reliance you place on such information is therefore strictly at your own risk.
AVAILABILITY OF PRODUCTS
9.1 Although we aim to offer you the best service possible, we make no promise that the Products will meet your requirements and we cannot guarantee that the Products will be fault free. If a fault occurs in the Products, please report it to us at email@example.com and we will review your complaint and, where we determine it is appropriate to do so, correct the fault. If the need arises, we may suspend access to the Products while we address the fault. We will not be liable to you if the Products are unavailable for a commercially reasonable period of time. Your access to the Products may be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or Products. We will restore the Products as soon as we reasonably can.
9.2 Our Order and cancellation deadlines apply regardless of whether certain Products are unavailable. In the event that you cannot cancel or modify an Order or Subscription through the Products, please notify us in advance of any cancellation deadline by emailing firstname.lastname@example.org.
10.1 THE PRODUCTS AND THEIR CONTENT ARE OTHERWISE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THEM, INCLUDING AS TO THE ACCURACY, COMPLETENESS OR CURRENCY OF THE PRODUCTS OR THEIR CONTENT. WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THE PRODUCTS, OR ANY FAILURES, DELAYS, OR INTERRUPTIONS IN THE PROVISION OF THE PRODUCTS. WE DISCLAIM AND EXCLUDE ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS, INCLUDING ANY WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PRODUCTS TO THE BROADEST EXTENT PERMITTED BY LAW. WE MAKE NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE TIMELINESS, ACCURACY, QUALITY, COMPLETENESS OR EXISTENCE OF THE CONTENT AND INFORMATION POSTED ON THE PRODUCTS. WE MAKE NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, FOR TECHNICAL ACCESSIBILITY, FITNESS OR FLAWLESSNESS OF THE PRODUCTS. WE MAKE NO WARRANTIES OR REPRESENTATIONS THAT YOUR USE OF CONTENT AND INFORMATION POSTED ON THE PRODUCTS WILL NOT INFRINGE RIGHTS OF THIRD PARTIES.
10.2 YOU ACKNOWLEDGE AND AGREE THAT Top Horse Trails IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD Top Horse Trails LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, THIRD PARTY PLATFORMS, OR OTHER USERS, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. CERTAIN INFORMATION, INCLUDING INFORMATION REGARDING TRAIL CONDITIONS, HAS BEEN PROVIDED BY THIRD PARTIES, AND Top Horse Trails IS NOT LIABLE FOR ANY INACCURACIES IN SUCH INFORMATION.
10.4 Top Horse Trails MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING THE ACCURACY, COMPLETENESS OR SUITABILITY OF THE INFORMATION AND DATA PROVIDED THROUGH THE PRODUCTS, INCLUDING WITHOUT LIMITATION ANY TRAIL ROUTES OR TRAIL CONDITIONS. ACTIVITIES ASSOCIATED WITH THE PRODUCTS CAN AT TIMES INVOLVE RISK OF INJURY, DEATH, PROPERTY DAMAGE, AND OTHER DANGERS ASSOCIATED WITH SUCH ACTIVITIES. YOU UNDERSTAND THAT Top Horse Trails DISCLAIMS RESPONSIBILITY FOR ANY SUCH PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE RESULTING FROM YOUR USE OF THE PRODUCTS. Top Horse Trails IS NOT RESPONSIBLE FOR THE MISUSE OR MISREPRESENTATION OF THE INFORMATION AND/OR DATA PROVIDED THROUGH THE PRODUCTS, AND ANY RELIANCE YOU PLACE ON SUCH INFORMATION AND/OR DATA IS THEREFORE STRICTLY AT YOUR OWN RISK.
10.5 WHEN YOU USE THE Top Horse Trails PRODUCTS, YOU MAY FIND THAT ACTUAL REAL-WORLD CONDITIONS DIFFER FROM THE INFORMATION AND DATA PROVIDED THROUGH THE PRODUCTS. EXERCISE YOUR INDEPENDENT JUDGMENT AND USE THE PRODUCTS AT YOUR OWN RISK. YOU ARE RESPONSIBLE AT ALL TIMES FOR YOUR CONDUCT.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) WILL Top Horse Trails PARTIES BE LIABLE TO YOU OR TO ANY THIRD PARTIES FOR ANY LOSS OF PROFITS, REVENUE, OR DATA, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR PUNITIVE DAMAGES, INCLUDING COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER LOSS INCURRED BY YOU OR ANY OTHER THIRD PARTY IN CONNECTION WITH YOUR USE OF THE PRODUCTS, YOUR ORDERS, OR OTHERWISE, IN EACH CASE WHETHER OR NOT Top Horse Trails HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PROVIDED BY LAW, Top Horse Trails PARTIES WILL NOT BE LIABLE TO YOU OR ANY OTHER THIRD PARTY FOR ANY CLAIM ARISING OUT OF OR RELATING TO YOUR USE OF THE PRODUCTS FOR ANY AMOUNT THAT EXCEEDS THE GREATER OF (i) THE AMOUNT PAID BY YOU TO Top Horse Trails FOR ANY Top Horse Trails PRODUCTS THAT GIVE RISE TO THE CLAIM OR (ii) ONE HUNDRED DOLLARS ($100). ANY CLAIM ARISING OUT OF OR RELATING TO YOUR USE OF THE PRODUCTS MUST BE BROUGHT WITHIN EIGHTEEN (18) MONTHS OF THE EVENTS GIVING RISE TO THE CLAIM. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Top Horse Trails AND YOU. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE JURISDICTIONS, Top Horse Trails’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT ALLOWED BY LAW. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE PRODUCTS OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE PRODUCTS. The limitations set forth herein will survive termination or expiration of these Terms and apply even if any limited remedy specified in these Terms is found to have failed its essential purpose.
You agree to indemnify and hold harmless Top Horse Trails and its directors, officers, members, investors, managers, employees and agents (the “Top Horse Trails Parties”) from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees, arising in any way from your use of the Products, your placement or transmission of any message, content, information, software, or other submissions through the Products, or your breach or violation of the law or of these Terms. Top Horse Trails reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you, and in such case, you agree to cooperate fully with Top Horse Trails’ defense of such claim. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
DIGITAL MILLENNIUM COPYRIGHT ACT
13.1 We are committed to complying with copyright and related laws, and we require all users of the Products to comply with these laws. Accordingly, you may not store any material or content on, or disseminate any material or content over, the Products in any manner that constitutes an infringement of third party intellectual property rights, including rights granted by copyright law. Owners of copyrighted works in the United States who believe that their rights under copyright law have been infringed may take advantage of certain provisions of the US Digital Millennium Copyright Act of 1998 (the “DMCA”) to report alleged infringements. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is our policy to terminate privileges of any user who repeatedly infringes the copyright rights of others upon receipt of proper notification to us by the copyright owner or the copyright owner’s legal agent.
13.2 If you feel that any Materials are infringing your copyright rights, we encourage you to contact us immediately. Upon our receipt of a proper notice of claimed infringement under the DMCA, we will respond expeditiously to remove, or disable access to, the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content in issue. Our designated agent (i.e., the proper party) to whom you should address such notice is listed below.
13.3 If you believe that your work has been copied and posted on the Products in a way that constitutes copyright infringement, please provide our designated agent with the following information:
GENERAL TERMS AND CONDITIONS
14.1 TERM AND TERMINATION
14.2 NO WAIVER If we delay exercising or fail to exercise or enforce any right available to us under these Terms, such delay or failure does not constitute a waiver of that right or any other rights under these Terms.
14.3 FORCE MAJEURE Top Horse Trails shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
14.4 INTERPRETATION In these Terms, unless the context requires otherwise: i) any phrase introduced by the words “including,” “include,” “in particular,” “for example,” or any similar expression shall be construed as illustrative only and shall not be construed as limiting the generality of any preceding words; and ii) references to the singular include the plural and vice versa.
14.5 ELECTRONIC COMMUNICATIONS The communications between you and Top Horse Trails use electronic means, whether you use the Products or send us emails, or whether Top Horse Trails posts notices on the Products or communicates with you via email. For contractual purposes, you: (a) consent to receive communications from Top Horse Trails in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Top Horse Trails provides to you electronically satisfy any legal requirement that such communications would satisfy if it were provided in a hardcopy writing. The foregoing does not affect your non-waivable rights.
14.6 NOTICES Unless otherwise specifically indicated, all notices given by you to us must be given to Top Horse Trails at email@example.com. We may give notice to you at the e-mail address you provide to us when you register, or in any of the ways specified in Section 14.5 above. Notice to you will be deemed received and properly served immediately when posted on the Products or when an e-mail or other electronic communication is sent to the e-mail address you have given to us. In proving the service of any notice via email, it will be sufficient to prove that such e-mail was sent to the specified e-mail address of the addressee.
14.7 INTERNATIONAL USERS The Products can be accessed from countries around the world and may contain references to services and content that are not available in your country. These references do not imply that Top Horse Trails intends to announce such services or content in your country. The Products are controlled and offered by Top Horse Trails from its facilities in the United States of America. Top Horse Trails makes no representations that the Products are appropriate or available for use in other locations. Those who access or use the Products from other countries do so at their own volition and are responsible for compliance with local law.
14.8 ARBITRATION PLEASE READ THE FOLLOWING PARAGRAPHS (THE “ARBITRATION AGREEMENT”) CAREFULLY, AS THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH Top Horse Trails, AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM Top Horse Trails.
14.9 EXCLUSIVE VENUE To the extent the parties are permitted under these Terms to initiate litigation in a court, both you and Top Horse Trails agree that all claims and disputes arising out of or relating to the Terms or the use of the Products will be litigated exclusively in the United States District Court for New Mexico, Mora County. If, however, that court would lack original jurisdiction over the litigation, then all claims and disputes arising out of or relating to the Terms or the use of the Products will be litigated exclusively in the Superior Court of New Mexico, County of Mora. You and Top Horse Trails consent to the personal jurisdiction of both courts.
14.10 CHOICE OF LAW Except to the extent they are preempted by U.S. federal law, the laws of New Mexico, other than its conflict-of-laws principles, govern these Terms and any disputes arising out of or relating to these Terms or their subject matter, including tort claims.
14.11 CONSUMER COMPLAINTS You may report complaints to the Consumer & Environmental Protection Divisions of the Office of the Attorney General or visiting https://www.nmag.gov/
14.12 GOVERNMENT RIGHTS Top Horse Trails provides the Products, including any related software, data, and technology, for ultimate government end use solely in accordance with the following: The Products shall constitute “commercial” computer software. Government technical data and software rights related to the Products include only those rights customarily provided to the public as defined in these Terms. If a government agency has a need for rights not granted under these Terms, it must negotiate with Top Horse Trails to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement. If any law, rule or regulation requires these Terms to include a specific provision or clause in order to render these Terms enforceable against any ultimate government end user, such provision or clause will be deemed to be a part of these Terms.
14.13 ENTIRE AGREEMENT These Terms constitute the whole agreement between us and supersede all previous discussions, correspondence, negotiations, previous arrangement, understanding or agreement between us relating to their subject matter. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Neither of you or Top Horse Trails is an agent, employee, or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Top Horse Trails’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Top Horse Trails may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
14.14 CONTACT Top Horse Trails, LLC PO Box 639, Mora, NM 87732.
15.1 APP TERMS
15.2 GIFTING You may be able to purchase certain pre-paid Subscriptions for other users or potential users (“Gift Subscriptions”). A user who purchases a Gift Subscription (a “Giftor”) must designate a specific recipient at the time of purchase, who will receive and has the option to redeem a Gift Subscription (“Recipient”) for a Subscription to certain Products. The Initial Term of such Subscription commences on the date that the Gift Subscription is redeemed for a Subscription. All fees and charges related to Gift Subscriptions are incurred and charged as a one-time payment at the time of the Giftor’s Order of such Gift Subscription. A Giftor may specify the date on which a Gift Subscription will be delivered to the Recipient. The Giftor will receive an Order confirmation and receipt. The Gift Subscription will be sent to the Recipient on the date specified by the Giftor, and is valid to be redeemed for a Subscription during the term specified at point of purchase (the “Expiration Period”). If there was no Expiration Period specified at point of purchase or the Gift Subscription was purchased before October 16, 2021, such Gift Subscription will not expire. A Gift Subscription can only be redeemed once, is not transferable, and may only be used in the country for which it was purchased. A Gift Subscription cannot be redeemed for cash, resold, or combined with any other offers. Our Payment Processor will charge the Payment Method provided by the Giftor at the time of purchase, and not delivery, for any Gift Subscriptions. Neither Giftor nor Recipient is eligible for any refund or other credits arising out of or related to a Gift Subscription that is not redeemed in accordance with these Terms. Top Horse Trails will make commercially reasonable efforts to notify the Recipient prior to the expiration of the Gift Subscription. Please ensure that you enter the Recipient’s information accurately when purchasing a Gift Subscription. Top Horse Trails is not responsible if a Gift Subscription is lost, stolen or used without permission.