EQUINE NETWORK TERMS OF SERVICE 

These Equine Network Terms of Service (“Terms of Service”) govern customer’s acquisition and use of the services and products set forth in an order form, quote, scope of work, or other ordering document incorporating the Terms of Service (“Ordering Document”). These Terms of Service, together with the Ordering Document, constitute an agreement between Equine Network, LLC (“EN”) and the Customer identified in the Ordering Document (the “Agreement”). Each of EN and Customer may from time to time be referred to individually as a “Party” and collectively as the “Parties.”   

By executing the Ordering Document, Customer expressly agrees to be bound by and subject to these Terms of Service and the Agreement. If any term in an Ordering Document is inconsistent with the Terms of Service, the terms of the Ordering Document will govern. Capitalized terms not defined in these Terms of Service have their defined meanings in the respective Ordering Document.  

1. License 

1. License Grant. The Audience, as defined in the Ordering Document, and data derived from Customer’s use of the Audience is “EN Data.” Subject to Customer’s payment of Fees and compliance with the Agreement, EN hereby grants Customer a revocable, non-exclusive, and non-transferable license (without the right to sublicense) during the Term to use and access the EN Data solely for Customer’s internal business purposes (the “Permitted Use”). EN reserves all rights not expressly granted to Customer in the Agreement.  

1. Use Restrictions. Customer shall not disclose, distribute, or deliver the EN Data, or any part, to any third party without EN’s prior written consent. Any purpose or use not specifically authorized herein is prohibited unless otherwise agreed to in writing by EN. Without limiting the foregoing and except as otherwise expressly set forth in the Agreement, Customer shall not at any time, directly or indirectly: (a) copy, modify, or create derivative works of the EN Data, in whole or in part; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the EN Data; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source of the EN Data or methods used to compile the EN Data, in whole or in part; (d) remove any proprietary notices included within the EN Data; (e) publish, enhance, or display any compilation or directory based upon information derived from the EN Data; or (f) use the EN Data in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. 

1. Deletion or Return of EN Data. Upon EN’s request at any time during the Term of the Agreement and within ninety (90) days of its termination, Customer shall, and shall instruct all Authorized Intermediaries and Authorized Recipients to, either return to EN all requested EN Data or securely dispose of or delete any EN Data, except to the extent Customer is prohibited from doing so under applicable law. Additionally, when the Agreement terminates, Customer shall cease using and disable connections to the EN Data. 

1. Fees and Payment 

1. Invoices. Unless stated otherwise in an Order, all invoices are due upon receipt.  

1. Late Fees. If Customer fails to make any payment when due, in addition to all other remedies that may be available: (a) EN may charge interest on the past due amount at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable law; and (b) EN may prohibit access to the EN Data until all past due amounts and interest have been paid, without incurring any obligation or liability to Customer or any other person by reason of such prohibition of access to the EN Data. Such period of suspension shall have no effect on the Term of the Agreement nor on Customer’s obligation to pay the Fees.  

1. Taxes. All Fees and other amounts payable by Customer under the Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on EN’s income. 

1. Termination. In addition to any other express termination right set forth elsewhere in the Agreement: 

1. EN may terminate the Agreement, effective on Notice to Customer, if Customer: (a) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after EN’s delivery of Notice to EN; or (b) breaches any of its obligations under Section 1, 5, or 6. 

1. Either Party may terminate the Agreement effective upon written Notice to the other Party if the other Party materially breaches the Agreement and such breach is incapable of cure, or with respect to a breach capable of cure, fails to cure such breach within fifteen (15) calendar days’ Notice of such breach.  

1. Effect of Expiration or Termination. Upon expiration or earlier termination of the Agreement, the license granted hereunder will terminate, and, without limiting Customer’s payment obligations, Customer shall (a) cease using, disable connections to, and delete, destroy, or return all copies of the EN Data; and (b) upon request, certify in writing to EN that (a) and (b) have been completed. No expiration or termination will affect Customer’s obligation to pay all Fees that are due before such expiration or termination or entitle Customer to any refund.  

1. Audit. Customer shall maintain complete and accurate books and records concerning the use and distribution of the EN Data during the Term and for a period of three years after termination and permit EN, or its authorized representative, to audit and examine those books and records and any equipment, systems, and software used by Customer in connection with the EN Data to ensure that the fees calculated or stated as payable to EN are complete and accurate. All such audits shall take place upon reasonable prior notice, during normal business hours and shall be conducted at EN’s sole expense, unless Customer has underreported the license fees due EN under the Agreement by more than five percent (5%), in which case, Customer shall reimburse EN for the reasonable costs of such audit and pay EN the amounts to rectify such underpayment, together with interest. 

1. Confidential Information and Data Security. 

1. Confidential Information. From time to time during the Term, either Party (as the “Disclosing Party“) may disclose or make available to the other Party (as the “Receiving Party“), information and materials about its business, services, pricing, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information (collectively, “Confidential Information”). The EN Data will be deemed Confidential Information of EN. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the Receiving Party at the time of disclosure; (c) rightfully obtained by the Receiving Party on a non-confidential basis from a third party; or (d) independently developed by the Receiving Party without using any Confidential Information of Disclosing Party.  

1. Receiving Party (a) shall treat as confidential and not disclose Confidential Information to any third party without the prior written consent of Disclosing Party, except to its employees and subcontractors who “need to know” such information and who are bound by obligations of confidentiality at least as restrictive as those set forth in this Section 5; (b) shall not use Confidential Information except to fulfill the purpose of the Agreement; (c) shall protect Confidential Information by using the same standard of care which it uses to protect its own confidential information of a like nature, but no less than a reasonable degree of care; (c) shall promptly notify Disclosing Party of any actual or suspected misuse or unauthorized disclosure of its Confidential Information; and (d) shall, upon request, promptly return all copies, in any form, of Confidential Information, to Disclosing Party or, in Disclosing Party’s sole discretion, destroy all copies and certify in writing to compliance with this subsection. Notwithstanding the foregoing, Receiving Party may disclose Confidential Information to the limited extent required (y) to comply with a court order, other governmental body, or with applicable law; provided that Receiving Party promptly notifies Disclosing Party so that it may seek to obtain a protective order; or (z) to establish a Party’s rights under the Agreement, including to make required court filings. Each Party’s obligations under this Section 5 survive termination of the Agreement for 5 years. 

1. Customer shall use all reasonable legal, organizational, physical, administrative, and technical measures and security procedures to safeguard and ensure the security of the Equine Data and to protect the Equine Data from unauthorized access, disclosure, duplication, use, modification, or loss. Customer maintains a comprehensive written information security program which includes physical, technical, and administrative safeguards designed to ensure the security and confidentiality of Confidential Information, including EN Data, and to protect it against any anticipated security threats or hazards or unauthorized access, disclosure, use, modification, or loss. Customer acknowledges that EN will operate in accordance with its published Privacy Policy. Customer agrees that it will not take any action that would violate the Privacy Policy or cause EN to violate the Privacy Policy.  

1. Intellectual Property Ownership. Customer acknowledges that, as between Customer and EN, EN owns all right, title, and interest, including all intellectual property rights, in and to the EN Data and any data derived therefrom. Customer further acknowledges that: (a) the EN Data is an original compilation protected by United States copyright laws; (b) EN has dedicated substantial resources to collect, manage, and compile the EN Data; and (c) the EN Data constitutes trade secrets of EN. 

1. Disclaimer of Warranties. THE DATA IS PROVIDED “AS IS” AND “AS AVAILABLE” AND EQUINE DOES NOT ASSUME ANY RESPONSIBILITY FOR USE OF OR ACCESS TO THE DATA. EQUINE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EQUINE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND THAT THE DATA, RESULTS, OR ITS USE WILL MEET CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, BE ACCURATE, COMPLETE, USEFUL, OR TIMELY OR THAT THE DATA OR ACCESS TO IT WILL BE UNINTERRUPTED, COMPATIBLE WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, FREE OF HARMFUL CODE, OR ERROR FREE OR THAT ERRORS WILL BE CORRECTED.  

1. Customer Indemnification. Customer shall indemnify, hold harmless, and, at EN’s option, defend EN from and against any and all losses, damages, liabilities, or costs (including reasonable attorneys’ fees) (”Losses”) resulting from any third-party claim, suit, action, or proceeding (”Third-Party Claim”) based on Customer’s: (a) negligence or willful misconduct; or (b) use of the EN Data in a manner not authorized by the Agreement, provided that Customer may not settle any Third-Party Claim against EN without EN’s consent, and further provided that EN shall have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice. All rights and remedies of EN hereunder shall be cumulative and in addition to any other rights and remedies to which it may be entitled. 

1. Limitations of Liability. TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, EQUINE WILL NOT BE LIABLE TO CUSTOMER  OR ANY THIRD PARTY UNDER OR IN CONNECTION WITH THE AGREEMENT FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR FOR ANY LOSS OF PROFIT, REVENUE, DATA, BUSINESS OR USE REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH LIABILITY IS BASED OR WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED TO EN OR IS REASONABLY FORESEEABLE. IN NO EVENT WILL EQUINE’S LIABILITY IN THE AGGREGATE ARISING OUT OF OR RELATING TO THE AGREEMENT EXCEED THE TOTAL FEE PAID BY CUSTOMER TO EQUINE IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY TO EQUINE’S GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT. 

1. Independent Contractors.  The relationship between the Parties created by the Agreement shall be that of independent contractors. Nothing contained herein shall be construed to place either Party in the relationship of legal representatives, partners, joint ventures, or agency, and neither Party shall have the power to obligate or bind the other Party in any manner whatsoever. 

1. Equitable Relief. Each Party acknowledges that any breach of its covenants or obligations set forth in Section 5 (Confidentiality) or, in the case of Customer, Section 2.4 (Use Restrictions) would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party is entitled to seek equitable relief in addition to all other legal remedies to which such Party may otherwise be entitled. 

1. Notices.  Any notices, consents, demands, and waivers (“Notice”) under the Agreement must be in writing and delivered by (a) first class mail, certified or registered, postage prepaid, return receipt requested; (b) personally served; or (c) emailed, and will be deemed duly given or sent when delivered to such Party at the address set forth in the Ordering Document. Either Party may change its Notice Address in writing to the other Party. 

1. Force Majeure. Neither Party shall be considered in default in the performance of its obligations hereunder, except for payment obligations, if and to the extent that such performance is prevented or delayed by a cause which is beyond the reasonable control of such Party including, without limitation, earthquakes, governmental regulation, fire, flood, labor difficulties, civil disorder and all acts of God.  

1. Assignment. Customer may not assign, delegate, or otherwise transfer the Agreement nor any obligations, rights, or interests arising out of the Agreement whether by operation of law, change of control or merger, or otherwise, without the prior written consent of EN. Any purported assignment or delegation in violation of this Section is void. No assignment, delegation or transfer relieves Customer of any of its obligations under the Agreement. Subject to the this Section, the Agreement binds and benefits the Parties and their respective successors and permitted assigns.  

1. Export Regulation. Customer shall not, directly or indirectly, export, re-export, or release the EN Data to, or make the EN Data accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the EN Data available outside the US. 

1. Survival.  Each provision which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Agreement including, but not limited to, Sections 4-10. 

1. Severability.  If any provision of the Agreement is held to be illegal or unenforceable, that provision will be modified, but only to the minimum extent necessary to cure the defect, and the remainder of the Agreement will remain in full force and effect.   

1. Third Party Liability.  A person who is not a Party to the Agreement shall have no right to enforce any of its terms.   

1. Governing Law.  The laws of the State of Delaware govern all matters arising under and relating to the Agreement, without giving effect to its conflicts of law principles. EN and Customer hereby irrevocably consent to the exclusive jurisdiction of the courts in New Castle, Delaware with respect to any matter arising under the Agreement. 

1. Waiver.  No provision of the Agreement may be waived except by a writing executed by the party against whom the waiver is to be effective.  The failure of a Party to enforce the provisions of the Agreement will not be a waiver of any provision or the right of such Party thereafter to enforce each and every provision of the Agreement. 

1. Changes to Terms of Service. EN may amend the Terms of Service from time to time by posting an amended version at its website and sending Customer Notice. The amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives EN written notice of rejection of the amendment. In the event of such rejection, the Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next Renewal Term following the Proposed Amendment Date (unless Customer first terminates the Agreement pursuant to Section 3 above). Customer’s continued use of the EN Data following the effective date of an amendment will confirm Customer’s consent to the amendment. The Agreement may not be amended in any other way except through a written agreement executed by authorized representatives of each Party.