HORIZON END USER LICENSE AGREEMENT
This Horizon End User License Agreement (“Agreement”) is a binding agreement between you (“you”) and [Matted Memories & More LLC] (the “Retailer”). This Agreement governs your use of the Horizon software and services (including all related documentation and data, “Horizon”). Horizon is licensed, not sold, to you.
By clicking the “agree” button, you represent that you are a resident of the United States and that you: (a) represent that you are of legal age (typically 18 years of age or older in most jurisdictions) and that you agree to this Agreement, or (b) if you are under the legal age, represent that your parent or legal guardian has reviewed and discussed this Agreement with you and that your parent or legal guardian agrees to this Agreement on your behalf. If you are not a resident of the United States or otherwise do not agree fully to each of the terms of this Agreement, do not access or otherwise use Horizon.
This Agreement contains procedures for mandatory, binding arbitration and a class action waiver.
1. License Grant. Subject to the terms of this Agreement, the Retailer hereby grants you a limited, non-exclusive, and nontransferable license to access and use Horizon for your personal, non-commercial use strictly in accordance with Horizon’s documentation.
2. License Restrictions. You shall not (a) copy Horizon, except as expressly permitted by this license, (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of Horizon, (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of Horizon or any part of Horizon, (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from Horizon, including any copy of Horizon, (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available Horizon, or any features or functionality of Horizon, to any third party for any reason, including by making Horizon available on a network where it is capable of being accessed by more than one device at any time, or (f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting Horizon.
3. Reservation of Rights. You acknowledge and agree that Horizon is provided under license, and not sold, to you. You do not acquire any ownership interest in Horizon under this Agreement, or any other rights thereto other than to use Horizon in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. The Retailer and its licensors and service providers and their affiliates reserve and shall retain their entire right, title, and interest in and to Horizon, including all copyrights, trademarks, and other intellectual property rights in Horizon or relating to Horizon, except as expressly granted to you in this Agreement.
5. Updates. The Retailer or its licensors or service providers or their affiliates may from time to time, in their sole discretion, develop and provide Horizon updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, (“Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that the Retailer and its licensors and service providers and their affiliates have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You further agree that all Updates will be deemed part of Horizon and be subject to all terms and conditions of this Agreement.
6. Third-Party Materials. Horizon may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that the Retailer and its licensors and service providers and their affiliates are not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Retailer and its licensors and service providers and their affiliates do not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
7. Term and Termination.
(a) The term of Agreement commences when you acknowledge your acceptance and will continue in effect until terminated by you or the Retailer as set forth in this Section 7.
(b) The Retailer may terminate this Agreement at any time without notice if (i) it ceases to support Horizon, which the Retailer may do in its sole discretion, or (ii) its license with its licensor with respect to Horizon is terminated. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms of this Agreement.
(c) Upon termination, (i) all rights granted to you under this Agreement will also terminate, and (ii) you must cease all use of Horizon and delete all copies of Horizon from your computer and account. Termination will not limit any of the Retailer’s or its licensors’ or service providers’ or their affiliates’ rights or remedies at law or in equity.
8. Disclaimer of Warranties. HORIZON IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, RETAILER, ON ITS OWN BEHALF AND ON BEHALF OF ITS LICENSORS AND SERVICE PROVIDERS AND THEIR AFFILIATES, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO HORIZON, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE RETAILER AND ITS LICENSORS AND SERVICE PROVIDERS AND THEIR AFFILIATES PROVIDE NO WARRANTY OR UNDERTAKING, AND MAKE NO REPRESENTATION OF ANY KIND THAT HORIZON WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
9. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE RETAILER OR ITS RESPECTIVE LICENSORS OR SERVICE PROVIDERS OR THEIR AFFILIATES, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE HORIZON OR THE CONTENT AND SERVICES FOR (A) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, OR (B) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR HORIZON OR $100, WHICHEVER IS GREATER. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR THE RETAILER OR ITS RESPECTIVE LICENSORS OR SERVICE PROVIDERS OR THEIR AFFILIATES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
10. Indemnification. You agree to indemnify, defend, and hold harmless the Retailer and its licensors and service providers and their officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to your use or misuse of Horizon or your breach of this Agreement, including but not limited to the content you submit or make available through Horizon.
11. California Residents. This section applies to our collection and use of personal information, as defined under California law, if you are a resident of California. In accordance with California law, we collected the following categories of personal information within the preceding 12 months:
- Identifiers such as your name, alias, email address, mailing address, IP address, and online identifiers;
- Certain categories of personal information described in subdivision (e) of California Civil Code Section 1798.80;
- Internet or other electronic network activity information, including information on your usage of our Website (“Usage Information”);
- Information used to create a profile about a consumer reflecting the consumer’s preferences or behavior;
- Electronic, audio, visual, thermal, olfactory, or similar information;
- Commercial information, including records of products or services purchased or other purchasing histories; and
- Professional or employment-related information.
We share each of these categories of personal information with our service providers to the extent necessary for them to facilitate our business purposes (including any purpose specified above). Additionally, within the past 12 months, some of our online advertisers may have used and disclosed Usage Information collected automatically from the Service. This may be a “sale” as broadly defined under the CCPA. Therefore, we provide you the right to opt out of this “sale” of personal information as described, below.
Your California Privacy Rights. If you are a resident of California, you have the following rights:
Right to Know. You may have the right to request information on the categories of personal information that we collected in the previous twelve (12) months, the categories of sources from which the personal information was collected, the specific pieces of personal information we have collected about you, and the business purposes for which such personal information is collected and shared. You also have the right to request information on the categories of personal information which were disclosed for business purposes, and the categories of third parties in the twelve (12) months preceding your request for your personal information.
Right to Delete. You may have a right to request us to delete personal information that we collected from you.
Right to Opt-Out. You have a right to opt-out of certain disclosures of personal information to third parties, if such disclosures constitute a “sale” under California law. As noted above, in the past twelve (12) months we enabled advertisers to collect certain information from the Site, which the advertisers may use to improve their interest-based advertising networks. Regardless of whether this is a “sale,” you may opt-out of interest-based advertising as described above. If you would like to exercise your rights listed above, please contact (or have your authorized agent contact) us at our email address or phone number listed in our contact information. When doing so, please tell us which right you are exercising and provide us with contact information to direct our response. We must verify your identity before fulfilling your requests. If we cannot initially verify your identity, we may request additional information to complete the verification process. Any personal information you disclose to us for purposes of verifying your identity will solely be used for the purpose of verification. You have a right not to receive discriminatory treatment by any business when you exercise your California privacy rights.
12. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
13. Governing Law. This Agreement is governed by and construed in accordance with the laws of the state of where the Retailer is located.
(a) All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement or Horizon that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Section. Unless otherwise agreed, all arbitration proceedings shall be held in English.
(b) Arbitration will be conducted before the American Arbitration Association (the “AAA”). The AAA rules will govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the terms of this Agreement. The arbitration will be conducted by a single, neutral arbitrator. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless otherwise mutually agreed upon. If you reside outside of the United States, the arbitrator will give reasonable notice of the date, time and place of any oral hearing. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(c) The arbitration shall be conducted by telephone, online and/or based solely on written submissions (the specific manner to be chosen by the party initiating the arbitration) and the arbitration will not involve any personal appearance unless otherwise mutually agreed-upon.
(d) All arbitration actions must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA rules for the pertinent claim.
(e) If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA rules, and the terms of this Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding.
(f) All constitutional and statutory rights to go to court and have a trial in front of a judge or a jury are hereby waived, instead electing that all claims and disputes shall be resolved by arbitration under this Section. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise in connection with this Agreement or Horizon in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, all rights to a jury trial are hereby waived, instead electing that the dispute be resolved by a judge.
(g) All claims and disputes arising out of this Agreement or Horizon must be arbitrated or litigated on an individual basis and not on a class basis, and claims of more than one person or user cannot be arbitrated or litigated jointly or consolidated with those of any other person or user.
(h) All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. This paragraph shall not prevent submissions to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(i) If any part of this Section is found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(j) This Section will survive the termination or expiration of this Agreement. Notwithstanding the foregoing, an individual action in small claims court is permitted.
(k) Notwithstanding the foregoing, seeking emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration is permitted. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Section.
(l) Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of patent, copyright, trademark or trade secrets shall not be subject to this Section.
(m) In any circumstances where this Section permits litigation in court, the litigation will occur in the courts located in the city where the Retailer is located, for such purpose.
15. Entire Agreement. This Agreement and the policies referenced in it constitute the entire agreement with respect to your rights, remedies and obligations relating to Horizon and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to Horizon.
16. Miscellaneous. No failure to exercise, and no delay in exercising, any right or any power hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. The Retailer’s licensors and service providers and their affiliates are hereby designated as third-party beneficiaries with respect to the applicable provision and protections under this Agreement.