BY CLICKING THE “ACCEPT” BUTTON (OR SIMILAR BUTTON OR CHECK BOX) AND BY COMPLETING YOUR PURCHASE OF ANY PRODUCT SOLD ON WWW.CUSTOMWOODHORSES.COM (“WEBSITE”) YOU (“YOU”) AGREE TO THE FOLLOWING TERMS AND CONDITIONS (“AGREEMENT”). BY ACCEPTING THESE TERMS AND COMPLETING YOUR PURCHASE, YOU ACKNOWLEDGE THAT YOU ARE ENTERING INTO A BINDING AGREEMENT BETWEEN YOU AND HORSES BY HERMAN, A/AN ILLINOIS LLC (“US” OR “WE”). YOU ALSO ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT IN ITS ENTIRETY AND THAT YOU UNDERSTAND THIS AGREEMENT.
Sale Authorization And Payment Terms
By providing your credit card, debit card, PayPal, bank account information or any other billing information through our check-out process and submitting payment, You hereby authorize us to deduct the total purchase price stated on our Website at the time of purchase for all goods You purchase, and all other stated shipping costs, taxes or other charges applicable to the sale from such method of payment. You agree that we shall be authorized to charge all such amounts immediately after You have clicked the submit button or otherwise have authorized the payment.
We are not responsible for pricing, typographical, or other errors in any price stated on our Website. We reserve the right to cancel any orders arising from such errors. We also reserve the right to cancel any sale made to You if we determine that there were inaccuracies in any product description or information contained on this Website regarding such product. All pricing is in United States currency (USD) unless otherwise stated. All listed prices do not include shipping and handling charges unless otherwise indicated. You agree to pay all charges that may be incurred by you or on your behalf through this Website, at the actual price(s) in effect when such charges are incurred, including without limitation all shipping and handling charges. If a product’s actual price is lower than the price stated on this Website, we will charge the lower amount and ship the product to You. If a product’s correct price is higher than the price stated on this Website, we will notify You via email and we will cancel your order.
All sales are subject to product availability and we may revise and discontinue any product at any time without notice to You (which may affect any information saved in any saved searches or your shopping cart). We also reserve the right, with or without prior notice to You, to: i) limit the available quantity of or discontinue any product; ii) bar any Website user from making any or all transaction(s); iii) refuse to provide any Website user with any product we sell; and iv) limit quantities on orders placed by the same user (or account), the same credit card, or orders that use the same billing and/or shipping address.
We verify the availability and the price before an item is shipped out. If any product You order is out of stock or otherwise becomes unavailable before shipping, we reserve the right to either cancel the sale or substitute the product with an identical product available in an alternate form that is of equal or greater value (i.e. a greater quantity, the same product packaged with a trial sample or with updated product packaging, etc), at our sole discretion. Any product substitution will occur at no extra cost to You.
Accuracy of Materials
We make every effort to describe and display our products accurately on this Website. However, a small number of the items may be mispriced, described inaccurately or unavailable, and we may experience lags in uploading updates throughout this Website or other delays beyond our control. ACCORDINGLY, WE DO NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF THE INFORMATION PROVIDED ON THIS WEBSITE RELATING TO PRODUCT PRICES, EXACT PRODUCT COLORS, SHAPES OR SIZES AS DEPICTED ON THIS WEBSITE OR REGARDING PRODUCT AVAILABILITY. WE RESERVE THE RIGHT TO CHANGE OR UPDATE INFORMATION AND TO CORRECT ERRORS, INACCURACIES OR OMISSIONS AT ANY TIME WITHOUT PRIOR NOTICE. Product dimensions including weight and/or other size measurements may not be exact and are provided for illustrative purposes only. Please review any important information or disclaimers specific to any given product we sell referenced in the product description. By accepting the terms of this Agreement, You acknowledge and agree that You have read any such specific product disclaimer or other important information relating to your purchase.
Title to Products And Risk of Loss
Title to any products and risk of loss or damage to the products during the shipping process shall pass to You upon delivery by us to the carrier for shipment of any product(s) You purchase.
We will ship any items you purchase within 30 days from the date ordered. All costs of Shipping, handling and any sales or value added tax required to be collected by us will be additional costs to You unless otherwise expressly indicated at the time of sale. All shipping times listed on this Website are only estimates of the expected number of business days it will take for in-stock merchandise to be shipped from our facilities and delivered to You (“Business days” means Monday-Friday, excluding holidays). In some cases, merchandise may actually ship earlier than expected. An initial confirmation email may be sent to You after successfully placing an order. However, any confirmation you receive from us does NOT mean your order request has been received or that your order has been accepted or shipped as this is an automated email confirmation. Once your order request has been successfully received and your item has been shipped, You will receive an email confirmation of the shipment. Please note: Any oversized items may be marked as requiring a special delivery charge in addition to the stated shipping fees. Any special delivery charge varies depending on the size and weight of the item. These charges will be included in the Shipping and Handling subtotal on the checkout page.
Taxes And Other Charges
Unless otherwise indicated, You are responsible to pay any applicable sales (use) taxes or any other similar tax required to be paid by the state in which You reside or any custom duties or VAT taxes required to be paid by You due to your purchase of any product(s) from this Website. If we are required to collect any taxes at the point of sale, then all applicable taxes will be added to the purchase price and You agree to pay the same, unless You provide us with a valid and correct tax exemption certificate applicable to your purchase.
No exchanges or returns will be accepted by us unless any item you purchase is damaged, defective, incorrect or contains missing components due to our error. Otherwise all sales are final. Please also see our policy on risk of loss regarding any damaged items delivered to You.
You must notify us within days of the delivery date if any items (or components or accessories of any items) You have purchased are missing, incorrect or are damaged. Upon notification by You, we will send you an email with return instructions and You must follow those instructions, or we reserve the right to refuse to accept any return shipment by You. Upon reciept of any notification by You, we will send You a postage pre-paid box for you to return any incorrect or damaged item(s). Upon our receipt and inspection of the same, we will then promptly send You any missing or replacement item(s) or component(s). You agree that our correction of the same shall be your sole remedy in the event You receive any missing, damaged or incorrect items from us.
You may modify or cancel any existing order by sending us an email no later than 3 business days after the date of your purchase, or before the shipping date, whichever occurs sooner. Cancellations will not be honored by us if made after any item(s) You have purchased has been shipped. All requests to cancel or change any existing orders must be made by sending an email to us using our website contact form, which must contain your request to cancel your order, or must contain the details of the change and should include the order number or date of sale if no order number was provided.
Changes To Existing Orders
No modifications to any existing orders will be permitted other than additions to any existing order. In the case of any requests for product additions, such additions shall be subject to product availability and may not be able to be shipped within the same time-frame as your original order in some cases. Any product additions will be shipped within the time-frame stated on this Website applicable to all shipments, measured from the date You make any modification request.
We may provide products and/or certain services through this Website under the terms of a separate agreement with You, such as license agreements or support services agreements, etc. (each hereinafter referred to as an “Other Agreement”). The terms and conditions governing your purchase and use of specific products not related to this transaction are contained exclusively in such Other Agreements. This Agreement shall not be deemed or construed to alter the terms of any such Other Agreements.
You may only use any products You purchase from us for your own internal use and not for resale or sub-licensing. Any resale or licensing or other distribution by You of any product(s) You purchase from us is strictly prohibited. You are solely responsible for compliance with any laws applicable to your purchase and use of any products made available through this Website. You agree to comply with all applicable laws and regulations of the United States and the various states. We make no representations or warranties to You that use of any product You purchase will be legal in your jurisdiction. Access and use of this Website from any jurisdictions where the products or services being provided are illegal is strictly prohibited and we shall have no liability to You whatsoever in such case.
Our Intellectual Property
All logos or any other trademarks, trade names or service marks and/or any other marks or logos posted on this Website, whether marked or unmarked, is either owned by us, an affiliate or subsidiary, or by some third party. This includes any product names appearing on this Website whether marked or unmarked by us. No trademarks, trade names, service marks, etc. posted on this Website may be used without the prior written consent of the owner. We retain all rights, ownership, title and interest in all trademarks, trade names or service marks contained on the Website owned by us, whether or not we have registered for or have been granted any such protections under State and/or Federal law.
Intellectual Property Disclaimer
Any references made on this Website to any established trade names, trademarks, service marks, product names or any other third party intellectual property is strictly used for reference and identification purposes only. No ownership, affiliation or sponsorship exists between us and the owner of any referenced trademark, trade name, service mark, or with any specific good or service referenced on this Website. We do not endorse or recommend any services or products referenced on this Website unless otherwise expressly stated, however they may be referenced or identified.
YOU ASSUME THE ENTIRE RISK ASSOCIATED WITH YOUR USE OF ANY PRODUCT(S) PURCHASED BY YOU. WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING YOUR USE OR THE PERFORMANCE OF ANY PRODUCT(S) YOU PURCHASE THE SUBJECT OF THESE TERMS INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE HEREBY EXPRESSLY DISCLAIM ALL LIABILITY FOR PRODUCT DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NON-COMPLIANCE WITH ANY CODES, OR MISAPPROPRIATION. WE MAKE NO WARRANTIES TO THOSE DEFINED AS “CONSUMERS” IN THE MAGNUSON-MOSS WARRANTY-FEDERAL TRADE COMMISSION IMPROVEMENTS ACT. ANY WARRANTY PROVIDED BY ANY MANUFACTURER, DISTRIBUTOR OR SUPPLIER OF ANY PRODUCT NOT MADE BY US WILL BE INCLUDED WITH THE PRODUCT.
LIMITATION OF LIABILITY
YOU AGREE THAT WE OR ANY OF OUR OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, MEMBERS, EMPLOYEES, AFFILIATES, AGENTS, ATTORNEYS ITS SUCCESSOR’S AND/OR ASSIGNS, IF APPLICABLE, SHALL NOT BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR ANY OTHER INDIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR PURCHASE OF ANY PRODUCT OR SERVICE FROM THIS WEBSITE INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS OR REVENUES, LOST DATA OR LOST GOODWILL OR ANY OTHER DAMAGES. YOU AGREE THAT OUR LIABILITY SHALL IN ALL CASES BE LIMITED TO THE PURCHASE PRICE OF THE PRODUCT IN QUESTION PAID BY YOU. WE SHALL NOT BE LIABLE TO YOU AS STATED HEREIN REGARDLESS OF THE CAUSE OF ANY SUCH DAMAGE OR THE NATURE OF ANY CLAIM, WHETHER FOR BREACH OF CONTRACT, BY STATUTE, FOR ANY TORTIOUS CONDUCT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY) OR BY ANY OTHER LEGAL THEORY, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE SAME. ACCORDINGLY, YOU AGREE TO WAIVE YOUR RIGHTS UNDER ANY LAWS THAT OTHERWISE MIGHT LIMIT YOUR WAIVER OF SUCH CLAIMS INCLUDING, CALIFORNIA CIVIL CODE SECTION 1542 IF YOU ARE A CALIFORNIA RESIDENT, OR ANY OTHER APPLICABLE STATE LAWS.
Exceptions to Disclaimers And Limitations
Some jurisdictions do not allow the waiver of certain warranties or the limitation of liability for certain damages. Accordingly, some of the above warranty disclaimers and limitations of liability may not apply to You. To the extent that we may not disclaim any implied warranty or limit its damages, the scope and duration of any required warranties under law and the extent of our liability shall be as limited as is allowed under any applicable laws.
By entering into this Agreement, you agree to our collection, use, and disclosure of your personal information in accordance with the Privacy and Communications Policy contained on this Website. This includes certain personal identifying information and billing/shipping information you provide during the registration and/or check-out process.
Information Security Policy
We use reasonable, industry standard security measures to protect your personally identifiable and billing information during transmission to this Website. For instance, when you provide any credit card or other billing or shipping information through our checkout process, we encrypt that information using secure sockets layer (SSL) encryption technology. We make no guarantee, warranty or representation that your name or email address, or any other Identity Information you provide through this Website, will remain secure at all times from any illegal or unauthorized access of the information by third parties. We shall not, under any circumstances, be held responsible or liable for information or transmissions that are accessed by third parties illegally or without authorization through this Website and/or network. We will report any unauthorized access of your information promptly upon discovery, and we will use our best efforts to remedy any security vulnerability that contributed to the unauthorized access.
B. Authority. If You are accepting these terms on behalf of another person or a company or other legal entity, You represent and warrant that You have full authority to bind that person, company, or legal entity to these terms of sale and otherwise have authority to enter into this Agreement.
C. Severability. If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction, in whole or in part, to be invalid, illegal, or unenforceable in any respect, for any reason, the validity, legality and enforceability of the remainder of that provision, any other remaining provisions, and of the entire Agreement shall not in any way be affected or impaired thereby, and shall be interpreted, to the extent possible, to achieve the purposes as originally expressed with the provision found to be invalid, illegal or unenforceable. Each provision hereof is intended to be severable, and the validity, legality, or enforceability of any provision of this Agreement shall not affect the validity, legality, or enforceability of the remainder of the Agreement.
D. Arbitration. YOU AGREE TO GIVE UP YOUR RIGHTS TO BRING ANY CLAIMS RELATING TO THIS AGREEMENT OTHER THAN TO PROTECT YOUR INTELLECTUAL PROPERTY AND/OR YOUR USE OF THIS WEBSITE BEFORE A COURT OF LAW OR OTHER LEGAL TRIBUNAL AND TO RESOLVE ALL DISPUTES OR CLAIMS EXCLUSIVELY BY ARBITRATION. Except for actions to protect intellectual property rights and to enforce an arbitrator’s decision hereunder, any and all claims, disputes or controversies of whatever kind and nature, whether preexisting, present or future between You and us, our agents, employees, principals, directors, officers, shareholders, members, managers, successors and assigns, to the extent applicable, arising from or relating to this Agreement, its interpretation or validity, shall be resolved exclusively by binding arbitration pursuant to the then-current rules of the American Arbitration Association (“AAA”) and shall be administered by the AAA. Notwithstanding the foregoing, to the extent You have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in state or federal court under the terms of this Agreement.
Any arbitration proceeding shall be brought and heard in the County of Winnebago County, State of Illinois. The arbitrator shall be authorized to grant any relief available under law or in equity and any award rendered shall be final and conclusive upon the parties, except that the arbitrator shall not be authorized to award punitive damages to either You or us. Any judgment may be entered in any court having jurisdiction and the arbitrator may award reasonable costs and fees, including reasonable attorney’s fees and all arbitration fees, to the prevailing party, notwithstanding the then current rules of the AAA. YOU AGREE THAT A WRITTEN NOTICE REQUESTING ARBITRATION MUST BE PROVIDED TO US WITHIN ONE (1) YEAR AFTER THE ACTS OR OCCURRENCES SUPPORTING SUCH A CLAIM, WITHOUT TOLLING FOR A FAILURE TO DISCOVER SUCH ACT OR OCCURRENCE. If You do not send a written notice to us within the requisite one (1) year period, You agree that any such claim (or claims) shall be waived and are hereby released by You and You shall be forever barred from asserting such claim (or claims) at any time after the expiration of such period.
E. Venue/Choice of Law. Any and all claims, demands, controversies or legal proceedings arising out of or related to this Agreement and/or your use of this Website may only be brought exclusively in any state or federal court situated in Winnebago County County, State of Illinois, and You hereby expressly agree to submit to the personal jurisdiction of such court and consent to extra-territorial service of process. Further, You waive any right to challenge the selection and choice of jurisdiction and You acknowledge that the right of selection of jurisdiction being waived by You is a valid part of the consideration of the sale the subject of these terms. This Agreement shall be construed and enforced in accordance with the laws of the State of Illinois, without regard to conflict of laws principles and without regard to any applicable International laws, treaties or regulations including, but not limited to, the United Nations Convention on Contracts for the International Sale of Goods or any other uniform International trade laws.
F. Waiver. The waiver by us of a breach of any provision of this Agreement by You shall not operate or be construed as a waiver of any other or subsequent breach by You.
G. Force Majeure. Except for your payment of the purchase price or fees, neither party shall be liable for any delay or failure to perform to the extent caused by fire, flood, explosion, war, riot, embargo, labor disputes, compliance with any laws, regulations, orders, acts or requirements from the government, civil or military authorities, terrorist attacks, acts of God or the public enemy, or any act or event of any nature reasonably beyond such party’s control.
H. Prior Dealings. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of or interpretation of any provision contained in this Agreement.
I. Assignment. You may not assign, delegate or otherwise transfer all or any part of your rights or obligations under this Agreement without prior written consent by us. Any such attempted assignment, delegation, or transfer will be null and void.
J. Survival. Any provisions in these Terms which by their nature extend beyond the termination or expiration of any sale will remain in effect until fulfilled and will apply to both parties respective successors and permitted assigns.
K. No Joint Venture or Partnership. Nothing in this Agreement will be construed as creating a joint venture, partnership, agency or employment relationship between the parties, nor will either party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other.