SINGLE END USER LICENSE AGREEMENT
These Terms of Service (“Terms of Service”) and the Single Use End User License Agreement (“License” and together with the Terms of Service are referred to as the “Terms”) describe the terms and conditions under which Protequus LLC (or “Protequus®”) offers you certain services and a limited license to use our product, NIGHTWATCH® Equine Distress & Wellness Monitor or NIGHTWATCH® Smart Halter™ (the “Product and Service” or “NIGHTWATCH®”), as further provided below.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY FOREVER RELEASE PROTEQUUS®, ITS OFFICERS, MEMBERS, EMPLOYEES, AUTHORIZED AGENTS AND ANY OF ITS SUBSIDIARIES AND AFFILIATES, FROM ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THE USE OF THE PRODUCTS AND SERVICES, OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY, INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE AND FOR ANY OTHER PECUNIARY OR OTHER LOSS, INCLUDING CLAIMS THAT IMPLY NIGHTWATCH® IS FOR THE PRIMARY PREVENTION OF COLIC OR OTHER FORMS OF EQUINE DISTRESS, CLAIMS OF SURVIVAL OR QUALITY-OF-LIFE BENEFITS OR ANY OTHER CLAIMS WHATSOEVER (“DAMAGES”).
You will indemnify and hold Protequus® and any of its subsidiaries and affiliates, officers, managers, members, employees, authorized agents and their successors harmless (including, without limitation, from all Damages, liabilities, settlements, costs and attorneys’ fees) from any claim or demand by any third party due to or arising out of your use of the Products and Services, including but not limited to accidents or other damages caused by use of the Products and Services or your violation of this Agreement, or the infringement by you or any third party of Protequus®’ intellectual property.
NIGHTWATCH® is designed to offer peace of mind and is not to be used to diagnose, treat, mitigate, cure, or prevent any disease or condition. The Products and Services are intended solely for use on horses, ponies, mules, donkeys, and burros. This device should not be:
- Utilized on people, other animals, or objects;
- Operated onboard an aircraft, a ship, or a satellite; and
- Integrated, assembled, attached, or associated in whole or part with any other halter, collar, coupler, or related headstall apparatus.
You acknowledge that any information provided by use of the Products and Services offered and sold by Protequus® is for informational purposes only and is not intended to replace the relationship between you and your horse’s veterinarian or any other medical provider. Protequus® is not a licensed medical care provider and has no experience in diagnosing, examining, or treating a horse’s medical condition of any kind, or in determining the effect of any activity on a horse’s medical condition. The Products and Services are not medical devices or telemetry services. Never disregard professional medical advice or delay in seeking such medical attention because of any information you obtain in connection with your use of the Products and Services.
Veterinarians and other equine healthcare professionals who use the Products and Services should exercise independent medical and clinical judgment regarding the information they obtain, and not rely on the Products and Services or information derived from use of the Products and Services as a conclusive source for any medical diagnosis. Customers who use the Products and Services offered by Protequus® do so at their own risk. If your horse experiences any type of medical condition, you should seek immediate professional medical attention for your horse.
For additional disclaimers and disclosures, please refer to the document entitled “Disclaimers and Disclosures” or contact us via telephone at 800-757-3856. To the extent that the provisions of this Agreement are inconsistent with or conflict with the Disclaimers and Disclosures provisions, the provisions of the Disclaimers and Disclosures document shall control. By this reference, the Disclaimers and Disclosures provisions are incorporated in this Agreement for all purposes.
NIGHTWATCH® is intended for use within the United States of America and Canada and may not be exported or used outside of the Unites States of America or Canada, without prior written consent of Protequus®, which may be delayed or denied at Protequus®’ sole discretion.
NIGHTWATCH® is an early warning system that alerts you via text, voice, and email to the early signs of possible distress events in your horse such as colic, being cast, and foaling. To function properly, the Product must be fully charged, must be worn by your horse, must have access to WiFi or cellular-3G networks, and must have an active end-user account set-up. Due to the possibility of false-positive, and false-negative results, intermittent data acquisition, intermittent wireless connectivity, and other environmental variables, NIGHTWATCH® should not be relied upon exclusively for alerting you to all possible distress events.
Payment and Billing
You acknowledge that the prices and features offered by Protequus® are subject to change as needed at the discretion of Protequus®. By your purchase of NIGHTWATCH® you acknowledge and agree you are entering into an annual monitoring contract/license agreement ("Annual Plan") with twelve (12) monthly payments of $99 ("Initial Term"), to be adjusted by any coupons offered by Protequus® applicable to NIGHTWATCH® that are available for the Annual Plan ("Monthly Amount"). After the Initial Term, your credit card will continue to be billed the Monthly Amount until your monitoring contract/license agreement is cancelled. To cancel your monitoring contract/license agreement, you must contact customer care in writing no less than 30 days prior to your renewal date. If you cancel your monitoring contract/license agreement during the Initial Term, you acknowledge and agree to have your credit card charged a termination fee as outlined below.
- $699 if 6 or more months remain on the Initial Term of the Annual Plan;
- $399 if less than 5 months remain on the Initial Term of the Annual Plan.
In using NIGHTWATCH®, you agree you will not do any of the following:
- Use NIGHTWATCH® to violate any applicable local, state, national or international laws;
Interfere with or disrupt NIGHTWATCH® servers or networks connected to NIGHTWATCH®, or violate any requirements, procedures, policies, or regulations of networks connected to NIGHTWATCH®;
Circumvent, disable, or otherwise interfere with security related to features of NIGHTWATCH®, or features that prevent or restrict use or copying of any part of the Product;
- Delete, in any manner, or alter the copyright, trademark, or other proprietary rights markings or notices appearing on any part of the Product; and
- Obtain any information or materials relating to NIGHTWATCH® or through any means not intentionally made available by Protequus® to you or attempt to gain unauthorized access to NIGHTWATCH®, or any technology, computer systems, or networks associated with NIGHTWATCH®, or attempt to index, search, or crawl NIGHTWATCH® with any automated process or other similar mechanism.
Protequus® warrants to the original purchaser of the Product that, so long as the Product is used in accordance with Protequus®’ written specifications, the Product will be free from defective material and faulty workmanship for a period of one (1) year from the date of purchase of the Product. If, during this one-year period, the Product does not work properly because of a defect in materials or workmanship, Protequus® will replace it with a new Product or equivalent Product free of charge. The warranty of the replacement Product will expire on the date of the original warranty expiration or one year after the shipment of a replacement Product, whichever period is longer. Your exclusive remedy with respect to the Product shall be replacement.
The foregoing Limited Warranty does not apply: (a) if the defect arises from altering, tampering, or mishandling; (b) if the defect arises from damage caused by power surges, accidents, misuse, excessive force, or other irregularities not due to defects in materials or workmanship; (c) if the Product is submerged or immersed in water; (d) if any repair or modifications or attempted repair or modifications of the Product is made other than by Protequus® or Freedman Harness & Saddlery Company (“Freedman”); (e) or if the Product is integrated, assembled, attached, or associated in whole or part with any halter, collar, coupler, or related headstall apparatus not sold by Protequus® or Freedman.
For original purchasers of the Product only, if, for any reason, you are not 100% satisfied with your purchased Product, you may send it back and request a full refund (less a $20.00 USD restocking fee) within 30 calendar days of your original date of purchase and the Product must be free from defects, disproportionate wear and tear, and structural damage from excessive force due to an accident or misuse. Product returned directly to Protequus® must have been originally purchased from nightwatch24.com or smarthalter.com. Any Product purchased from a 3rd-party and/or other website must be returned to their original purchase location and are subject to that 3rd-party’s and/or website’s return policy. Purchasers are solely responsible for all shipping costs (both ways) associated with returning their Product, and assume all risk of loss or damages when shipping their return Product. Processing of refunds will take 5-7 business days, depending upon your financial institution. All refunds will be issued in the original form of payment at the time of order. Handling and processing charges are non-refundable.
Protequus® will not accept returns or process a refund without prior authorization by our customer care department. To obtain authorization, please contact customer care. Returned Product must have our claim # clearly labeled on the exterior of the shipping box. PROTEQUUS® RESERVES THE RIGHT TO CHANGE THIS RETURN POLICY AT ANY TIME WITHOUT PRIOR NOTICE.
Ownership and License Grant
You acknowledge and agree that Protequus® owns all data (i.e., biometric, behavior, etc.) collected on each horse through use of NIGHTWATCH® and you agree that Protequus® may use such data as it sees fit, including analyzing the data for research or commercial purposes. You agree that Protequus® is not limited in any manner to using the data gathered through use of NIGHTWATCH®.
Protequus® hereby grants to you a non-exclusive, restricted license to use the software owned by Protequus® for the monitoring services through a monitoring service contract (“Software”), but only in conjunction with the Product, properly registered, and only in accordance with the accompanying documentation (“Documentation”). The Software may be downloaded and installed free of charge, but your use of the Software and receipt of the services provided by Protequus® through NIGHTWATCH® is subject to your timely payment for those services.
The license to use the data collected through use of your Product must be solely related to the care of your horse. You agree that this restricted license does not permit you to use the data for any other purposes. This restricted license grant may be terminated by Protequus® at its sole discretion. In addition, the license grant shall be terminated immediately if you attempt, either directly or indirectly, by yourself or through others, to reverse engineer the Products or any components thereof. This restricted license shall terminate upon termination of the monitoring service contract.
Except to the extent otherwise expressly and unambiguously authorized by Protequus® or, with respect to any restriction which is explicitly prohibited by applicable law, you shall not otherwise: (a) modify, translate, reverse engineer, decompile, disassemble or create any derivative works based on NIGHTWATCH®, the Software, the Documentation or any of Protequus®’ data; (b) make any copies of the Software or Documentation; (c) rent, lease, transfer, sublicense or otherwise transfer any rights to the Software or Documentation; (d) remove any proprietary notices or labels on NIGHTWATCH® or the Documentation; or (e) add, integrate or combine any other software with the Software. Any violation of this section shall result in immediate termination of your restricted license to the Software and use of NIGHTWATCH®.
Protequus® may terminate these Terms and the use of NIGHTWATCH® at any time by providing you with thirty (30) days prior written notice, and Protequus® shall return any fees paid by you for use of NIGHTWATCH® in advance less any termination fee where applicable, for the period following such termination, if any as finally determined by Protequus®. Protequus® reserves right, in its sole discretion, to waive any termination fees following termination.