TERMS OF SERVICE
Effective Date: January 22, 2019
These Terms of Service constitute a legally binding agreement (“Agreement”) between you and Experiential Squared, Inc. dba MyRacehorse (“MyRacehorse,” “we,” “us” or “our”) governing your use of the website located at URL http://www.MyRacehorse.com and services therein (collectively, the “Website”) and/or our mobile application, “myracehorse App” (“App” and collectively with Website, the “Service”).
PLEASE READ THIS DOCUMENT CAREFULLY BEFORE CONTINUING TO USE THE WEBSITE. YOUR USE OF THE WEBSITE CONSTITUTES YOUR AGREEMENT TO BE BOUND BY, AND ARE BECOMING A PARTY TO, THIS AGREEMENT. IN ADDITION, WHEN YOU CHECK THE “AGREE WITH THE ABOVE TERMS” WHEN REGISTERING AN ACCOUNT ON THE WEBSITE OR CLICK THE “AGREE” BUTTON WHEN YOU INSTALL THE APP, AS THE CASE MAY BE, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THIS WEBSITE OR INSTALL THE APP AND DISCONTINUE YOUR REGISTRATION TO CREATE AN ACCOUNT ON THE WEBSITE.
We reserve the right, at our sole discretion, to change or modify portions of this Agreement at any time without further notice. Your continued use of the Website after any such changes constitutes your acceptance of the new Terms of Service. If you do not agree to abide by these or any future Terms of Service, do not use or access (or continue to use or access) the Website.
ONLY PERSONS OF LEGAL AGE CAN ACCEPT THIS AGREEMENT AND CREATE AND/OR AUTHORIZE AN ACCOUNT TO USE THE WEBSITE AND THE APP. IF YOU ARE NOT AN ADULT YOU MAY NOT CREATE AND/OR AUTHORIZE AN ACCOUNT TO USE THE WEBSITE OR THE APP.
1. Access and Use of the Website
The Website provides general information regarding companies that each own a percentage of a race horse, a listing of hospitality events offered to shareholders, and customized newsfeeds regarding horses of interest to each user. The Website additionally provides registered account holders, meeting all requirements, with the ability to purchase shares in the listed horse shared ownership companies, to register for and purchase tickets to shareholder-only hospitality events, and to purchase related products, such as apparel and accessories. Users browsing the Website do not need to register to access general information about our services and products, but must register and create an account in order to purchase shares in horse shared ownership companies and otherwise access and use our online event scheduler and merchandise store. If you choose to register for the Website, you agree to provide true, accurate, and complete information about yourself as prompted by the registration form.
2. Download and Use of the App
The App generally provides similar information as the Website regarding companies that each own a percentage of a race horse, a listing of hospitality events offered to shareholders, and customized newsfeeds regarding horses of interest to each user. The App additionally provides users that meet all requirements with the ability to purchase shares in the listed horse shared ownership companies, to register for and purchase tickets to shareholder-only hospitality events, and to purchase related products, such as apparel and accessories. The App is not capable of use without logging in with Website credentials or the creation of a new account. Once logged into a valid account through the App, you will be able to purchase shares in horse shared ownership companies and otherwise access and use our online event scheduler and merchandise store. If you choose to create an account to use the App, you agree to provide true, accurate, and complete information about yourself as prompted by the registration form.
4. User Account, Password and Security
You are responsible for maintaining the confidentiality of your Service login credentials (user name and password) and are fully responsible for any and all activities that occur under your login credentials, as applicable. You agree to (a) immediately notify MyRacehorse of any unauthorized use of your Service login credentials, or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Website. You may be held liable for losses incurred by MyRacehorse or any of its licensors or affiliates due to someone else using your account as a result of your failing to keep your account information secure and confidential.
You may not use anyone else’s Service login credentials or account at any time without the express permission and consent of the holder of that account. MyRacehorse cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.
5. Use of Service
Subject to your performance of all of the provisions of this Agreement MyRacehorse hereby grants you, a limited, terminable, personal, non-exclusive license to access and use the Service solely as provided herein. Notwithstanding anything to the contrary herein, all rights not specifically granted in the license set forth above shall be reserved and remain always with MyRacehorse. Your right to use the Service is not transferable. You will use the Service in accordance with all applicable laws. MyRacehorse may, without notice, terminate your access to the Service or take other actions as are reasonably necessary to comply with legal requirements and as necessary to protect MyRacehorse’s networks, information and the security and integrity of the Website and/or our servers and networks or if we determine that you are misusing the Service or otherwise violating the terms of this Agreement.
6. Conditions of Use
You agree to not use the Service to: (a) interfere with or disrupt the App, Website or servers or networks connected to the App and/or Website, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; (b) violate any applicable local, state, national or international law, or any regulations having the force of law; (c) provide false information about yourself or impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; (d) harvest or collect email addresses or other contact information from the Service by electronic or other means for any purpose, including, but not limited to, the purposes of sending unsolicited emails or other unsolicited communications; (e) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; (f) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service; or (g) cause any third party to engage in the restricted activities above.
If you are using the Service to purchase shares in horse shared ownership companies, tickets to shareholder-only hospitality events or related apparel, and accessories, you agree to pay the amounts charged for such purchases (“Charges”). You are responsible for all Charges incurred under your account regardless of your awareness of such Charges or the amounts thereof. Charges may be facilitated through a third-party payment processing service (“Processor”) which MyRacehorse may replace without notice to you. Currently, credit card transactions on the Service are processed by Chase Paymentech and ACH transactions on the Service are processed by Payliance, and are subject to their applicable terms of service and privacy policies.
8. Obligation to Pay Charges.
When you use the Service to purchase shares in horse shared ownership companies, tickets to shareholder-only hospitality events or related apparel, and accessories you will be directed to our Processor for fulfillment of the applicable Charges. You hereby represent and warrant that (i) the credit card and banking information supplied to the Processor is true, correct and complete, (ii) payments for Charges made by you will be honored by your credit card company or depositary financial institution, as the case may be, and (iii) you shall pay for all Charges made under your account credentials using the Service.
9. Intellectual Property Rights
You acknowledge and agree that the Service contains content, tools and features (“Content”) that are protected by intellectual property rights, including, as applicable, copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by MyRacehorse, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Content, in whole or in part. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Service or the Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith are the property of MyRacehorse, our licensors and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by MyRacehorse and/or its licensors. You further agree that the functionality and features of the Service represent valuable proprietary materials owned by MyRacehorse.
The MyRacehorse name and logos are trademarks and service marks of Experiential Squared, Inc. dba MyRacehorse (collectively the “MyRacehorse Trademarks”). Nothing in this Agreement or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of MyRacehorse Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of MyRacehorse Trademarks will inure to our exclusive benefit.
10. Links to other Sites
The Service may contain links to other independent third-party websites (“Linked Sites”). These Linked Sites are provided solely as a convenience to users of the Service. Such Linked Sites are not under MyRacehorse’s control, and MyRacehorse is not responsible for and does not endorse the content of such Linked Sites, including any information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites.
11. Horse Information
MyRacehorse allows different types of Horse Owners (defined below) to list a share of their race horses through the Service and provides you tools to locate a race horse meeting your criteria. MyRacehorse does not make any recommendations for any particular race horse (or related shared ownership company), nor endorse one race horse over another. Race horses are not under MyRacehorse’s control, and MyRacehorse is not responsible for and does not endorse any race horse, including any information provided regarding any race horse by the applicable Horse Owner. You will need to make your own independent judgment regarding your review of such information and selection of a race horse. The only requirement to list a horse on MyRacehorse is the Horse Owner must agree to have a 3rd party “vet check” and third party “appraisal of value”. These are available to all users when helping select their racehorse.
12. Horse Management and Feedback
MyRacehorse does not own any of the horses that are listed on the Service. Each horse is owned by a stable, syndicate or individual owner (“Horse Owner”). The information provided by Horse Owners may include representations about their respective horse’s prospects and conditions. You may have access to Horse Owner reputation through the review and forum system made available on the Service, where shareholders can comment on experiences with these ownership entities.
In some cases, an independent blood stock agent or appraiser may be engaged to provide an opinion on a horse’s value or health. Shareholders will also be able to submit reviews of these independent blood stock agent or appraisers. Additional information about the Service is found in our FAQs.
13. Risks of Horse Racing
MyRacehorse does not have or express any opinion on the value of the horses being offered. We are an exchange, providing tools to assist you in searching for horse information and locating an investment in a horse shared ownership company meeting your personal criteria. Horse racing ownership is risky. Horses are living, breathing, fragile animals and no guarantees could ever be made about the outcomes of a certain investment in a racehorse. Most investments lose money. Some break even, and a few are profitable, and a very few, are extremely profitable.
YOUR USE OF THE SERVICE AND ANY SHARES IN HORSE SHARED OWNERSHIP COMPANIES PURCHASED ON THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS A MARKETPLACE FOR SHARES IN HORSE SHARED OWNERSHIP COMPANIES ONLY AND IS NOT A HORSE OR INVESTMENT RECOMMENDATION SERVICE, HORSE OR INVESTMENT LOCATING SERVICE, INVESTMENT ADVISORY OR ANY OTHER SERVICE AND IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. MYRACEHORSE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY REGARDING THE SERVICE, SHARES IN HORSE SHARED OWNERSHIP COMPANIES AND RELATED PRODUCTS WHICH MAY BE PURCHASED ON THE SERVICE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, SUITABILITY OF INVESTMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, OR THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE AND DO NOT PROMISE ANY SPECIFIC FINANCIAL PERFORMANCE OR RESULTS FROM USE OF THE SERVICE AND/OR THE PURCHASE OR ANY SHARES IN HORSE SHARED OWNERSHIP COMPANIES AND RELATED PRODUCTS WHICH MAY BE PURCHASED ON THE SERVICE.
15. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT MYRACEHORSE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MYRACEHORSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) ANY SHARES IN HORSE SHARED OWNERSHIP COMPANIES OR OTHER PRODUCTS PURCHASED ON THE SERVICE; OR (iii) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL MYRACEHORSE’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID MYRACEHORSE IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
You will defend, indemnify, and hold MyRacehorse including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of the Service or purchases of shares in horse shared ownership companies or related products, including: (1) your breach of this Agreement; and/or (2) any other activities in connection with the Service. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
At MyRacehorse’s or your election, all disputes, claims, or controversies arising out of or relating to this Agreement or the Service that are not resolved by mutual agreement shall be exclusively resolved by binding arbitration to be conducted before JAMS, or its successor. Unless otherwise agreed by the parties, arbitration will be held in San Bernardino County, California before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by JAMS, and will be conducted in accordance with the rules and regulations promulgated by JAMS. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator’s decision and award will be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award you any damages in excess of the limitation on actual compensatory, direct damages set forth in above and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under this Agreement, and you hereby irrevocably waive any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.
You agree that MyRacehorse, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service for any reason, including, without limitation, for lack of use or if MyRacehorse believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Service, may be referred to appropriate law enforcement authorities. MyRacehorse may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice.
19. General Terms
These Terms of Service constitute the entire agreement between you and MyRacehorse and govern your use of the Service, superseding any prior agreements between you and MyRacehorse with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. This Agreement will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and MyRacehorse agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within San Bernardino County, California. In the event a dispute arises regarding this Agreement or the use of the Service, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs incurred, in addition to damages and any other relief to which it is entitled. The failure of MyRacehorse to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Agreement without the prior written consent of MyRacehorse, but MyRacehorse may assign or transfer this Agreement, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
20. Questions? Concerns? Suggestions?
Please contact us at firstname.lastname@example.org to report any violations of this Agreement or to pose any questions regarding this Agreement or the Service.