General Terms and Conditions EquineM

Updated: March 2024

Welcome to EquineM! By signing up for an EquineM Account (as defined in Section 2) or by using any EquineM Services (as defined below), you are agreeing to be bound by the following terms and conditions (the “Terms of Service”).
As used in these Terms of Service, “we”, “us”, “our” and “EquineM” means the applicable EquineM Contracting Party, and “you” means the EquineM User (if registering for or using an EquineM Service as an individual), or the business employing the EquineM User (if registering for or using an EquineM Service as a business) and any of its affiliates.
You must read, agree with and accept all of the terms and conditions contained or expressly referenced in these Terms of Service, including EquineM’s Privacy Policy, the EquineM Data Processing Agreement (“DPA”), and, if applicable, the Terms and Conditions for purchasing from Other Sellers, before you may sign up for a EquineM Account or use any EquineM Service.

1. Our Services

1.1. Our Services. The EquineM cloud based services includes our platforms, products, applications, application programming interface (“API”), tools, and any ancillary or supplementary EquineM products and services (including Upgrades (as defined below)), offered online and via a mobile application (“Services”).
1.2. Modification or Discontinuation of Services. We may add, modify or discontinue any feature, functionality or any other tool within any Services and/or Sites, at our own discretion and without further notice, however, if we make any material adverse change in the core functionality of the Services, then we will notify you by posting an announcement on the Sites, via the Services and/or by sending you an email.

2. Account Registration and Administration

2.1. Account Registration. To register to the Services for the first time, you shall create an account for the Services (“Account”). By creating an Account and registering to use the Services you become, either individually or on behalf of your employer or any entity, on behalf of whom you created the Account, an EquineM customer (“Customer”). The first user of the Account is automatically assigned as an Account administrator (“Admin”). See Section 2.4 for additional details on Admin’s.
2.2. Your Registration Information. When creating an Account or when you are added into an Account and creating your user profile (“User Profile”), you: (i) agree to provide us with accurate, complete, and current registration information about yourself; (ii) acknowledge that it is your responsibility to ensure that your password remains confidential and secure; (iii) agree that you are fully responsible for all activities that occur under your Account, User Profile and password, including any integration or any other use of third party products or services (and associated disclosure of data) in connection with the Services; and (iv) undertake to promptly notify us in writing if you become aware of any unauthorized access or use of your Account or User Profile and/or any breach of these Terms. We may assume that any communications we receive under your User Profile have been made by you. You will be solely responsible and liable for any losses, damages, liability and expenses incurred by us or a third party, due to any unauthorized usage of the Account by either you or any other User or third party on your behalf.
2.3. User Verification. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your Account and/or User Profile.
2.4. Account Admins. The Admin(s) of an Account are, severally and jointly, deemed as the authorized representatives of the Customer, and any decision or action made by any Admin, is deemed as a decision or action of Customer. An Admin may assign or add other members of the Account as Admins, which possess important privileges and controls over the use of the Services and the Account, including, without limitation: (i) control your (and other Users) use of the Account; (ii) purchase, upgrade or downgrade Services; (iii) create, monitor or modify Users’ actions and permissions; (iv) manage the access to, control, remove, or otherwise change, all or part of the Customer Data (as defined below); (v) assign certain privileges to such other Users (as defined below); and (vi) integrate or disable integration with Third Party Services. You also acknowledge that your Account can become managed by a representative of the entity that owns or controls the email address domain with which your Account was created or registered.
2.5. Account Users. Account Admins can invite other persons to create a user account. These Account users whom are designated within the Services are referred to, collectively with the Admin(s) as “Users”. The features, functionalities and privileges available to the Users are determined by the respective user role, Services, offering and Subscription Plan governing such Account.
2.6. Customer Responsible for Users. Customer is solely liable and responsible for understanding the settings, privileges and controls for the Services and for controlling whom Customer permits to become a User and what are the settings and privileges for such User, including without limitation, the right for a User to invite or add other Users, the right to incur charges on the Account, the right to access, modify or share Customer Data. Customer is responsible for the activities of all of its Users, even if those Users are not from Customer’s organization or domain. Further, Customer acknowledges that any action taken by a User of Customer’s Account, is deemed by us as an authorized action by Customer, hence Customer shall have no claim in this regard.

3. Your Customer Data.

3.1. Customer Data. Customer Data is any data, file attachments, text, images, reports, personal data, or any other content, that is uploaded or submitted, transmitted or otherwise made available, to or through the Services by you or any User and is processed by us on Customer’s behalf (“Customer Data”).

4. Intellectual Property Rights; License.

4.1. Our Intellectual Property. The Services and Sites, inclusive of materials, such as software, API, apps framework, design, design system, text, editorial materials, informational text, documentation, photographs, illustrations, audio clips, video clips, artwork and other graphic materials, and names, logos, trademarks and services marks (excluding Customer Data), any and all related or underlying know-how, technology or intellectual property, and any modifications, enhancements or derivative works of the foregoing (collectively, “EquineM Materials”), are the property of EquineM and its licensors, and may be protected by applicable copyright or other intellectual property laws and treaties. As between you and EquineM, EquineM retains all right, title and interest, including all intellectual property rights, in and to the EquineM Materials.
4.2. Customer Reference. Customer acknowledges and accepts that EquineM has the right to use Customer’s name and logo to identify Customer as a customer of EquineM or as a User of the Services, on EquineM’s Sites, marketing materials or otherwise by public announcements, including, but not limited to, earning statements and calls, shareholder materials and similar announcements. Customer may revoke such right, at any time, by contacting support@equinem.com.
4.3. Your Access and Use Rights. Subject to the terms and conditions of these Terms, and your compliance thereof, we grant you a limited, worldwide, non-exclusive, non-transferable right to access and use the Services and Sites, during the applicable Subscription Term.
4.4. Use Restrictions. Except as expressly permitted in these Terms, you may not, and shall not allow a User or any third party to: (i) give, sell, sublicense, transfer or distribute any portion of the Services to any third party; (ii) circumvent, disable or otherwise interfere with security-related features of Services or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Services; (iii) copy, modify, translate, patch, improve, alter, change or create any derivative works of the Services or Sites, or any part thereof; (iv) take any action that imposes or may impose (at EquineM’s sole discretion) an unreasonable or disproportionately large load on the EquineM infrastructure or infrastructure which supports the Sites or Services (v) interfere or attempt to interfere with the integrity or proper working of the Services or Sites, or any related activities; (vi) use the Services for competitive purposes, including to develop or enhance a competing service or product; or (vii) encourage or assist any third party (including other Users) to do any of the foregoing.
4.5. API Use. We may offer an API that provides additional ways to access and use the Services. Such API is considered a part of the Services, and its use is subject to all these Terms. You may only access and use our API for Customer’s internal business purposes, in order to create interoperability and integration between the Services and other products, services or systems you and/or Customer use internally. We reserve the right at any time to modify or discontinue, temporarily or permanently, your and/or Customer’s access to the API (or any part of it) with or without notice. The API is subject to changes and modifications, and you are solely responsible to ensure that your use of the API is compatible with the current version.

5. Privacy and Data Protection.

5.1. Privacy Policy. EquineM is firmly committed to protecting the privacy of your personal information and the personal information of your customers. By using the Service, you acknowledge and agree that EquineM’s collection, usage and disclosure of this personal information is governed by our Privacy Policy.
5.2. Data Processing Addendum. To the extent that EquineM processes personal information of your customers as a “data processor” or “service provider” under certain the EU or UK General Data Protection Regulation, EquineM’s collection and use of personal information is also subject to our Data Processing Agreement.
5.3. Anonymous Information. Notwithstanding any other provision of these Terms, we may collect, use and publish Anonymous Information (defined below) relating to, or generated by your use of the Services and/or Sites, and disclose it for the purpose of providing, operating, improving and publicizing our products and services, including the Sites and Services, and for other business purposes. “Anonymous Information” means information which does not enable identification of an individual, such as de-identified, aggregated and/or analytics information. EquineM owns all Anonymous Information collected or obtained by EquineM.

6. Third Party Services; Links.

6.1. Third Party Services. The Services enables you to engage and procure certain third party services, products, apps and tools in connection with the Services, including, without limitation, third party applications and widgets offered via our integrations offering, or which you decide to connect through our API, as part of the Services (collectively, “Third Party Services”).
6.2. Independent Relationship. You acknowledge and agree that regardless of the manner in which such Third Party Services may be offered to you, we merely act as an intermediary platform between you and such Third Party Services, and we do not, in any way, endorse any such Third Party Services, or shall be in any way responsible or liable with respect to any such Third Party Services. Your relationship with such Third Party Services and any terms governing your payment for, and use of, such Third Party Services, including without limitation, the collection, processing and use of your data by such Third Party Services, are subject to a separate contractual arrangement between you and the provider of the Third Party Services (“Third Party Agreement”). We are not a party to, or responsible, in any manner, for the compliance by you or by the provider of the Third Party Services with the Third Party Agreement.
6.3. Integration with a Third Party Service and your Customer Data. Through the Services you may enable integrations with your Account, including, financial administration, address book details or Services within your Account (or a portion thereof), with Third Party Services, which will allow an exchange, transmission, modification or removal of data between us and the Third Party Services, the scope of which is determined by the applicable actions set by such integration. You hereby acknowledge that any access, collection, transmission, processing, storage or any other use of data, including the Customer Data, by a Third Party Services, is governed by the Third Party Agreement, including any applicable privacy policy, and EquineM is not responsible for any access, collection, transmission, processing, storage or any other use of data, including the Customer Data, by the Third Party Services or for such Third Party Services privacy and security actions, inactions or general practices. By integrating and/or using the Third Party Services, you acknowledge and agree that: (i) you are solely responsible for your compliance with applicable privacy restrictions, laws and regulations, including your use of the Third Party Services and other data activities you may conduct or may permit third parties, including the Third Party Services, to conduct; (ii) the activities and use of the data by you and any other Users within the Account, may result in a modification and/or removal of data, either in the Account (i.e. Customer Data) and in the integrated Third Party Services. We shall have no obligation of any kind, for any such modification and/or removal of data, either in the Account with us and/or the integrated Third Party Services.
6.4. Use Conditions and Limitations. Both EquineM and Third Party Services may impose, each at its sole discretion, additional conditions or limitations on your access and use of certain Third Party Services, including without limitation, imposing a limited quota on the number of actions or other uses (as the case may be). Such additional conditions or limitations shall be indicated wherever relevant within the Services or the Third Party Services or otherwise notified to you or to any other relevant User of the Account.
6.5. EquineM Marketplace. EquineM may make available Third Party Services through the EquineM Shop or Services. Your use of the EquineM Shop is subject to the EquineM’sTerms and Conditions for purchasing from Other Sellers.
6.6. Payment for Third Party Services. Third Party Services may be offered free of charge or for a certain fee, either charged directly by the Third Party Services or by EquineM. Wherever Third Party Services require payment, it shall be indicated to you, unless such fee is included within the Fees for the Services. Wherever EquineM charges Customer on behalf of the Third Party Services, then Customer acknowledges that EquineM serves only as an intermediary role in facilitating or collecting the applicable fees and taxes from Customer, for the Third Party Services, thus all payment related issues, including the payment of fees, renewal and refund policy, are governed by the Third Party Agreement. Wherever EquineM charges Customer, on behalf of itself and not on behalf of the Third Party Services, the payment terms, including the payment of fees, renewal and refund policy, are governed by Sections ‎ 7 and ‎ 8 herein.
6.7. Change of Fees. Customer acknowledges that EquineM and any Third Party Services, may change the fees for the Third Party Services from time to time, including imposing a new charge on a Third Party Services that was provided for free.
6.8. Discontinuation of Third Party Services. Each EquineM and the Third Party Services reserves the right to discontinue the use or suspend the availability of any Third Party Services, for any reason and with no obligation to provide any explanation or notice. Such discontinuation may result in the inability to utilize certain features and actions of the Third Party Services along with our Services.
6.9. Links. The Sites, Services and/or any Third Party Services may contain links to third party websites that are not owned or controlled by us (“Links”). You acknowledge that we have no control over, and assume no responsibility for the content, privacy policies, or practices of, any third party websites. You: (i) are solely responsible and liable for your use of and linking to third party websites and any content that you may send or post to a third-party website; and (ii) expressly release us from any and all liability arising from your, and in case of a Customer, all Users’, use of any third party website. Accordingly, we encourage you to read the terms and conditions and privacy policy of each third party website that you may choose to visit.
6.10. Limitations of Liability. EquineM bears no responsibility and/or liability for any links or third party services, including without limitation, such third party services’ operability or interoperability with our services, security, accuracy, reliability, data protection and processing practices and the quality of its offerings, as well as any acts or omissions by third parties. by accessing and/or using the third party services, you acknowledge that your access and use of the third party services are at your sole discretion and risk, and you are solely responsible for ensuring such third party services’ operation and practices and its respective third party agreement meet your needs.

7. Subscription, Fees, Upgrades and Renewals.

7.1. Order Form. The Services may be purchased via an order form, e.g. a sales order, purchase document or any other instrument as determined by us, which shall be completed and placed either online, in-product, offline, or in any other form designated by us (“Order Form”). Such Order Form will list, at a minimum, the Services ordered, the associated fees, the subscription plan and term, as applicable. If Customer provides EquineM a purchase order related to an Order Form, such is deemed to incorporate these Terms and if such contains alternative terms in regards to the Services then such shall have no force or effect.
7.2. Subscription. Unless stated otherwise in an Order Form, the Services are provided on a subscription basis for the subscription term specified in the Order Form, in accordance with the respective subscription plan, as applicable, purchased under such Order Form “Subscription Term” and “Subscription Plan”, respectively, and collectively the “Subscription”).
7.3. Fees. In consideration for the provision of the Services (except for Trial Services), Customer shall pay us the applicable fees, as set forth in the applicable Order Form (“Fees”). Unless indicated otherwise, Fees are stated in Euros. Customer hereby authorizes us, either directly or through our payment processing service or our affiliates, to charge such Fees via Customer’s selected payment method, upon due date or shall otherwise remit payment to EquineM upon the due date. Unless expressly set forth herein, the Fees are non-cancelable and non-refundable. We reserve the right to change the Fees at any time, upon notice to Customer if such change may affect Customer’s existing subscriptions upon renewal. In the event of failure to collect the Fees owed by Customer, we may, at our sole discretion (but shall not be obligated to) retry to collect at a later time, and/or suspend or cancel the Account, without notice.
7.4. Taxes. The Fees are exclusive of any and all taxes (including without limitation, value added tax, sales tax, use tax, excise, goods and services tax, etc.), levies, or duties, which may be imposed in respect of these Terms and the purchase or sale, of the Services hereunder (“Taxes”). If Customer is located in a jurisdiction which requires Customer to deduct or withhold Taxes or other amounts from any amounts due to us, Customer should notify us, in writing, promptly and we shall join efforts to avoid and/or reduce any such Tax withholding, provided, however, that in any case, Customer shall bear the sole responsibility and liability to pay such Tax and such Tax should be deemed as being added on top of the Fees payable by Customer.
7.5. Upgrades. Customer may upgrade and/or enhance its Services by either: (i) adding Users or Horses; (ii) upgrading to a higher type of Subscription Plan; and/or (iii) adding additional services, products, Add-Ons, features or functionalities (collectively, “Upgrades”). Some Upgrades or other changes may be considered as a new purchase, hence will restart the Subscription Term for all or some of the Services and some will not, as indicated within the Services and/or the Order Form. Upon an Upgrade, Customer will be billed for the applicable additional Fees, at our then-current rates (unless indicated otherwise in an Order Form), either: (a) prorated for the remainder of the then-current Subscription Term, or (b) whenever the Subscription Term is being restarted, then the Fees already paid by Customer will be reduced from the new upgraded Fees, and the difference shall be due and payable by Customer upon the date on which the Upgrade was made. “Add-Ons” means additional enhancements and/or additional functionalities for the applicable Services for the respective Subscription Plan purchased by Customer that are made available for purchase, which may be subject to additional Fees.
7.6. Billing. As part of registering, or submitting billing information, to the Services, Customer agrees to provide us with updated, accurate and complete billing information, and Customer authorizes us to charge, request and collect payment (or otherwise charge, refund or take any other billing actions) from Customer’s payment method or designated banking account.
7.7. Subscription Auto-Renewal. In order to ensure that Customer will not experience any interruption or loss of services, Customer’s Subscription includes an automatic renewal option by default. Accordingly, unless Customer cancels its Subscription prior to its expiration, the Subscription to the underlying Services will automatically renew upon the end of the then applicable Subscription Term, for a renewal period equal in time to the original Subscription Term and, unless otherwise notified to Customer, at the same price (subject to applicable Tax changes and excluding any discount or other promotional offer provided for the first Subscription Term). Accordingly, unless either Customer or us cancel the Subscription prior to its expiration, we will attempt to automatically charge Customer the applicable Fees upon or immediately prior to the expiration of the then applicable Subscription Term. If Customer wishes to avoid such auto-renewal, Customer shall cancel its Subscription, prior to its expiration, at any time through the Account settings or by contacting our support team. Except as expressly set forth in these Terms, in case a Customer cancels its Subscription, during a Subscription Term, the Subscription will not renew for an additional period, but Customer will not be refunded or credited for any unused period within the Subscription Term.
7.8. Discounts and Promotions. Unless expressly stated otherwise in a separate legally binding agreement, if Customer received a special discount or other promotional offer, Customer acknowledges that upon renewal of the Subscription to the Services, EquineM will renew such Subscription to the Services, at the full applicable Fee at the time of renewal.

8. Refund Policy; Chargeback.

8.1. Refund Policy. If Customer is not satisfied with its first purchase of the Services and solely with respect thereto (“Initial Purchase”), then Customer may terminate such Initial Purchase of the Services by providing us a written notice, within 14 days of such Initial Purchase (“Refund Period”). In the event that Customer terminates such Initial Purchase, within the Refund Period, we will refund Customer the prorata portion of any unused and unexpired Fees pre-paid by Customer in respect of such terminated Services, unless such other sum is required by applicable law, in the same currency we were originally paid (“Refund”). The Refund is applicable only to the Initial Purchase and does not apply to any additional or subsequent purchases, upgrades, modification or renewals of the Services (even if such were performed during the Refund Period). Please note that we shall not be responsible to Refund any differences caused by change of currency exchange rates or fees that Customer was charged by third parties, such as wire transfer fees. After the Refund Period, the Fees are non-refundable and non-cancellable.
8.2. Non-Refundable Services. Certain Services may be non-refundable. In such event we will identify such Services as non-refundable, and Customer shall not be entitled, and we shall not be under any obligation, to terminate the Services and give a Refund.
8.3. Chargeback. If, at any time, we record a decline, chargeback or other rejection of a charge of any due and payable Fees (“Chargeback”), this will be considered as a breach of Customer’s payment obligations hereunder, and Customer’s use of the Services may be suspended, disabled or terminated at EquineM’s discretion. Customer may not have any further access to the Services in the event of such suspension, disablement or termination, unless EquineM otherwise enables Customer to resume its access to the Services, at its sole discretion, subject to Customer’s payment of any applicable Fees in full, including any fees and expenses incurred by us and/or any Third Party Services for each Chargeback received (including handling and processing charges and fees incurred by the payment processor), without derogating from any other remedy that may be applicable to us under these Terms or applicable law.

9. Trial Services; Pre-Released Services.

9.1. Trial Services and Free Versions. We may offer, from time to time, part or all of our Services on a free, no-obligation trial and/or in connection with a free Subscription Plan to the Services for a limited duration and with limited functionality (“Trial Services”). The term of the Trial Services shall be as communicated to you within the Services, in an Order Form or separately in writing by EquineM, unless terminated earlier by either Customer or us, for any reason or for no reason. We reserve the right to modify, cancel and/or limit the Trial Services at any time, with or without notice, and without liability or explanation to you. In respect of the Trial Services, upon termination, we may change the Account web address at any time without any prior written notice.
9.2. Pre-Released Services. Note that we may offer, from time to time, certain Services or parts thereof as Alpha or Beta versions (“Pre-Released Services”) and we use best endeavors to identify such Pre-Released Services as such. Pre-Released Services are Services that are still under development, and as such they may be inoperable or incomplete, and may contain bugs, suffer disruptions and/or not operate as intended and designated, more than usual.

10. Term and Termination; Suspension.

10.1. Term. These Terms are in full force and effect, commencing upon the Effective Date, until the end of all Subscriptions to the Services underlying the Account, either paid or unpaid, unless terminated otherwise in accordance with these Terms.
10.2. Termination for Cause. Either Customer or us may terminate the respective Services and these Terms, as applicable, upon written notice, in case that the other party (a) is in material breach of these Terms and to the extent, curable, fails to cure such breach, within a reasonable cure period, which shall not be less than 10 days following a written notice from by the non-breaching party; provided, however, that termination by Customer shall apply only with respect to those components of the Services with respect to which the breach has occurred; or (b) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 45 days.
10.3. Termination by Customer. Customer may terminate its Subscription to the Services by canceling the Services and/or deleting the Account, whereby such termination shall not derogate from Customer’s obligation to pay applicable Fees except where such termination is made within the Refund Period. In accordance with Section ‎ 8 above, unless mutually agreed otherwise by Customer and us in a written instrument, the effective date of such termination will take effect at the end of the then-current Subscription Term, and Customer’s obligation to pay the Fees throughout the end of such Subscription Term shall remain in full force and effect, and Customer shall not be entitled to a refund for any pre-paid Fees.
10.4. Effect of Termination of Services. Upon termination or expiration of these Terms, Customer’s Subscription and all rights granted to you hereunder shall terminate. It is Customer’s sole liability to export the Customer Data prior to such termination or expiration. In the event that Customer did not delete the Customer Data from the Account, we may continue to store and host it until either Customer or we, at our sole discretion, delete such Customer Data, and during such period, Customer may still be able to make a limited use of the Services in order to export the Customer Data ( “Read-Only Mode”), but note that we are not under any obligation to maintain the Read-Only Mode period, hence such period may be terminated by us, at any time, with or without notice to Customer, and subsequently, the Customer Data will be deleted. Customer acknowledges the foregoing and its sole responsibility to export and/or delete the Customer Data prior to the termination or expiration of these Terms, and therefore we shall not have any liability either to Customer, nor to any User or third party, in connection thereto. Unless expressly indicated herein otherwise, the termination or expiration of these Terms shall not relieve Customer from its obligation to pay due Fees.
10.5. Survival. Section ‎ 2.6 (Customer Responsibility for Users), ‎ 3 (Customer Data), 5 (Privacy and Security), ‎ 6 (Third Party Services; Links), 7 (Subscription, Fees, Upgrades and Renewal) in respect of unpaid Subscription Fees, 9 (Governing Terms of Trial Services and Pre-Released Services), 10 (Term and Termination; Suspension), 11 (Confidentiality), 12 (Limitations of Liability), 15 (General Provisions), and such other sections of these Terms which by their nature are intended to survive, shall survive the termination or expiration of these Terms, and continue to be in force and effect in accordance with their applicable terms.
10.6. Suspension. Without derogating from our termination rights above, we may decide to temporarily suspend the Account and/or a User Profile (including any access thereto) and/or our Services, in the following events: (i) we believe, at our sole discretion, that you or any third party, are using the Services in a manner that may impose a security risk, may cause harm to us or any third party, and/or may raise any liability for us or any third party; (ii) we believe, at our sole discretion, that you or any third party, are using the Services in breach of these Terms or applicable Law; or (iii) Customer’s payment obligations, in accordance with these Terms, are or are likely to become, overdue. The afore-mentioned suspension rights are in addition to any remedies that may be available to us in accordance with these Terms and/or applicable Law.

11. Confidentiality.

11.1. Confidential Information. In connection with these Terms and the Services (including the evaluation thereof), each party (“Disclosing Party”) may disclose to the other party (“Receiving Party”), non-public business, product, technology and marketing information, including without limitation, customers lists and information, know-how, software and any other non-public information that is either identified as such or should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure, whether disclosed prior to or after the Effective Date (“Confidential Information”). For the avoidance of doubt, (i) Customer Data is regarded as Customer’s Confidential Information, and (ii) our Site, Services, Trial Services and/or Pre-Released Services, inclusive of their underlying technology, and their respective performance information, as well as any data, reports and materials we provided to you in connection with your evaluation or use of the Services, are regarded as our Confidential Information. Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without any use or reference to the Confidential Information.
11.2. Confidentiality Undertakings by the Receiving Party. The Receiving Party will (i) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates, service providers and agents, on a need to know basis and who are bound by confidentiality obligations at least as restrictive as those contained herein; and (ii) not use or disclose any Confidential Information to any third party, except as part of its performance under these Terms and as required to be disclosed to legal or financial advisors to the Receiving Party or in connection with a due diligence process that the Receiving Party is undergoing, provided that any such disclosure shall be governed by confidentiality obligations at least as restrictive as those contained herein.
11.3. Compelled Disclosure. Notwithstanding the above, Confidential Information may be disclosed pursuant to the order or requirement of a court, administrative agency or other governmental body; provided, however, that to the extent legally permissible, the Receiving Party shall make best efforts to provide prompt written notice of such court order or requirement to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.

12. Limitation of Liability

Except as expressly set forth in these terms, we make no representations and/or warranties and to the fullest extent permitted by applicable law:
12.1. Your use of the Services is at your sole risk. The sites and the services are provided on an “as is”, “with all faults” and “as available” basis, and without warranties of any kind. We do not warrant, and expressly disclaim any representations and/or warranties that the services and sites, including the access thereto and use thereof, will be uninterrupted, timely, secured, error free, that data will not be lost, that defects will be corrected, or that the sites and/or services are free from viruses or other harmful code.
12.2. We disclaim any and all liability or responsibility for any delays, failures, interception, alteration, loss, or other damages that you and/or your data (including customer data) may suffer, arising out of or relating to the use of or inability to use the Service or these Terms of Service (however arising, including negligence).
12.3. In no event shall either party hereto and its affiliates, subcontractors, agents and vendors (including, the third party service providers), be liable under, or otherwise in connection with these terms for (i) any indirect, exemplary, special, consequential, incidental or punitive damages; (ii) any loss of profits, costs, anticipated savings; (iii) any loss of, or damage to data, use, business, reputation, revenue or goodwill; and/or (iv) the failure of security measures and protections.
12.4. In no event shall the total aggregate liability of either party, its affiliates, subcontractors, agents and vendors (including, its third party service providers), under, or otherwise in connection with, these terms (including the sites and the services), exceed the total amount of fees actually paid by you (if any), during the 12 consecutive months preceding the event giving rise to such liability. this limitation of liability is cumulative and not per incident.
12.5. EquineM is not responsible for any of your tax obligations or liabilities related to the use of EquineM’s Services.

13. Purchase and delivery of EquiBoards

13.1. Purchase of EquiBoard. EquineM sells EquiBoards according to the nature and quantity as agreed in writing, as the customer purchases them from EquineM. EquineM’s sales obligation does not include assembly and installation materials, software, consumables, batteries, cables and accessories. EquineM does not guarantee that the assembly, installation and use instructions associated with the EquiBoard(s) are error-free and that the EquiBoard(s) have the properties stated in these instructions.
13.2. Delivery of EquiBoard. The EquiBoard sold by EquineM to the customer will be delivered to the customer ex-warehouse. Only if this has been agreed in writing will EquineM deliver the goods sold to the customer or have them delivered to a location to be designated by the customer. In that case, EquineM will inform the customer, if possible in good time before delivery, of the time at which he or the carrier involved intends to deliver the EquiBoard.
13.3. Purchase price. The purchase price of the EquiBoard does not include taxes, the costs of transport, insurance, etc. These costs will be charged to the customer where appropriate.
13.4. Warranty on EquiBoards. EquineM will make every effort to repair material and manufacturing defects in the EquiBoard(s) sold within a reasonable period free of charge if these defects have been reported in detail to EquineM within a period of three months after delivery. If, in EquineM’s reasonable opinion, repair is not possible, repair will take too long or if repair involves disproportionately high costs, EquineM is entitled to replace the EquiBoard free of charge with another, similar, but not necessarily identical EquiBoard.
13.5. Expiration of warranty. The warranty obligation lapses if errors in the EquiBoard are wholly or partly the result of incorrect, careless or unskilled use, external causes such as fire or water damage, or if the customer makes changes to the equipment or parts without the permission of EquineM. EquineM will not withhold such permission on unreasonable grounds. Costs of work and repairs outside the scope of this warranty will be charged by EquineM in accordance with its usual rates. EquineM has no obligation under the purchase agreement with regard to errors and/or other defects reported after the warranty period referred to in Article 13.4.

14. Modifications.

14.1. Modification of terms. We reserve the right, in our sole and absolute discretion, to update or change any portion of the Terms of Service at any time. We will provide you with reasonable advance notice of changes to the Terms of Service that materially adversely affect your use of the Services or your rights under the Terms of Service, e.g. by displaying a prominent notice within the Services or by sending Customer an email. Unless we indicate otherwise in our notice (if applicable), any changes to the Terms of Service will be effective immediately upon posting of such updated terms at this location. Your continued access to or use of the Services after we provide such notice, if applicable, or after we post such updated terms, constitutes your acceptance of the changes and consent to be bound by the Terms of Service as amended. If you do not agree to the amended Terms of Service, you must stop accessing and using the Services.
14.2. Modification of fees. EquineM may change the Fees for the Services from time-to-time. We will provide you with 15 days advanced notice prior to any changes in Fees, e.g. by displaying a prominent notice within the Services or by sending Customer an email.. EquineM will not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Services (or any part thereof).

15. General Provisions.

15.1. Governing Law; Jurisdiction. These Terms and any action related thereto will be governed and interpreted by and under the laws of The Netherlands without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Courts of competent jurisdiction located in The Netherlands, shall have the sole and exclusive jurisdiction and venue over all controversies and claims arising out of, or relating to, these Terms. You and us mutually agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. Notwithstanding the foregoing, EquineM reserves the right to seek injunctive relief in any court in any jurisdiction.
15.2. Interpretations. Any heading, caption or section title contained herein, and/or any explanation, is provided only for convenience, and in no way alters and/or amend the provisions within the Terms nor shall it legally bind us in any way. These Terms are written in Dutch, and translated into other languages for your convenience. If a translated (non-Dutch) version of these Terms conflicts in any way with their Dutch version, the provisions of the Dutch version shall prevail.
15.3. Force Majeure. Neither we nor you will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, interruption or failure of the internet or any utility service, failures in third-party hosting services, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
15.4. Severability. These Terms shall be enforced to the fullest extent permitted under applicable Law. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms will remain in effect.
15.5. No Waiver. No failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right. No waiver under these Terms will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.