<Terms of Service>
Last Updated: August 2, 2018
Thank you for visiting www.abaltatech.com (“this Site” or “our Site”), the website of Abalta Technologies, Inc. (“Abalta” or “we”). By accessing and using this Site, whether directly, indirectly, intentionally, unintentionally, or through use of a “bookmark,” or by using our applications or other online products and services (collectively and together with the Site, the “Services”) you acknowledge that you have read, understand and agree to be bound by all of the terms and conditions set forth below (“Terms”). If you do not agree to these Terms, including the mandatory arbitration provision and class action waiver, do not access or use our Services.
We reserve the right to amend these Terms from time to time without prior notice by posting the amended terms on this Site and updating the “Last Updated” date above. If you do not agree to the amended Terms, you must stop accessing and using our Services.
ALWAYS DRIVE VIGILANTLY ACCORDING TO ROAD CONDITIONS AND IN ACCORDANCE WITH TRAFFIC LAWS. YOU SHOULD LIMIT YOUR INTERACTIONS WITH THE SERVICES AND THE THIRD PARTY SERVICES WHILE DRIVING UNTIL YOU HAVE STOPPED YOUR VEHICLE IN A SAFE PLACE. A PASSENGER OTHER THAN THE DRIVER MAY INTERACT WITH THE SERVICES AND THE THIRD PARTY SERVICES, PROVIDED IT DOES NOT INTERFERE WITH DRIVING AND DOES NOT DISTRACT THE DRIVER.
Use of our Services
This Site and the Services may be used only for lawful purposes. You must be at least 16 years of age to access or use our Services. If you are under 18 years of age (or the age of legal majority where you live), you may access or use our Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. You may use this Site to review general information about Abalta, our products and services and you may use the Services as directed in any applicable documentation.
Intellectual Property Rights
Our Services and the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein and all other intellectual property and other proprietary rights embodied therein and appurtenant thereto (collectively, the “Abalta Content”) are owned by or licensed to Abalta and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, Abalta and our licensors reserve all rights in and to our Services and the Abalta Content. You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services and Abalta Content for your own personal use; however, such license is subject to these Terms and does not include any right to (a) sell, resell or commercially use our Services or Abalta Content; (b) copy, reproduce, distribute, publicly perform or publicly display Abalta Content, except as expressly permitted by us or our licensors; (c) modify the Abalta Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services or Abalta Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Services or Abalta Content other than for their intended purposes. Any use of our Services or Abalta Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.
You agree that you will have no rights in or to any of the foregoing, express or implied, other than the rights expressly granted in these Terms.
Any questions, comments, suggestions, ideas, original or creative materials or other information you submit about Abalta or our products or Services (collectively, “Feedback”), is non-confidential and will become the sole property of Abalta. We will own exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
In connection with the use of our Services, you will not violate any law, contract, intellectual property or other third-party right, commit a tort or violate or attempt to violate the security of our Services, including but not limited to:
· accessing data not intended for you or logging onto a server which you are not authorized to access;
· attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization;
· interfering or disrupting, negatively affecting or inhibiting other users from fully enjoying our Services or engaging in any activity that could damage, disable, overburden or impair the functioning of our Services in any manner including but not limited to submitting a virus to the Services, “spamming,” “crashing,” or otherwise overloading the Site or Services;
· sending unsolicited email or communications;
· engaging in any harassing, threatening, intimidating, predatory or stalking conduct
· forging any information from the Services in any email or newsgroup posting;
· reverse engineering any aspect of our Services or doing anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
· attempting to circumvent any content-filtering techniques we employ or attempting to access any feature or area of our Services that you are not authorized to access;
· developing or using any third-party applications that interact with our Services without our prior written consent, including any scripts designed to scrape or extract data from our Services;
· bypassing or ignoring instructions contained in our robots.txt file that controls automated access to portions of our Services; or
· using our Services for any illegal or unauthorized purpose, or engaging in, encouraging or promoting any activity that violates these Terms.
Our Services enable you to access third party services (each a “Third Party Service”) either by installing a third party application or by using our Services to access such Third Party Service. The restrictions above will apply to your access and use of any Third Party Service. In addition, you will not use the Services to:
· modify or remove a hyperlink provided by the Third Party Service;
· cache, record, pre-fetch, or otherwise store any data transmitted by a Third Party Service (“Third Party Content”) except as specifically permitted by the applicable third party;
· modify the Third Party Content, or use it to update or create your own database;
· display or use any Third Party Content in any way other than as permitted by such third party, including to disparage the Third Party Service or for the benefit of a third party company not affiliated with the Third Party Service;
· create or disclose metrics about, or perform any analysis of, the Third Party Content for any commercial purpose; or
· use Third Party Content in any manner or for any purpose that may violate any law or regulation, or any right of any person including, but not limited to, intellectual property rights, rights of privacy and/or rights of personality.
Engaging in any of the prohibited conduct listed above may result in civil or criminal liability. Abalta will cooperate with law enforcement and may prosecute to the fullest extent of the law any violations of the restrictions contained in this section.
Termination of Access and Use
We reserve the right, without notice and in our sole discretion, to terminate your right to access and use our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services
Your use of our services is at your sole risk. You are responsible for the security, confidentiality, and use of any user name, password or other personal identifier you use in connection with your use of our Services.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ABALTA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES OR ANY PRODUCTS OR INFORMATION MADE AVAILABLE ON OR THROUGH THE SERVICES. ABALTA DOES NOT REPRESENT OR WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY INFORMATION OR MATERIALS AVAILABLE ON OR THROUGH THE SERVICES WILL BE ACCURATE, TIMELY, COMPLETE, UP-TO-DATE, CURRENT, OR FREE FROM TYPOGRAPHICAL ERRORS OR ALTERATIONS BY THIRD PARTIES. WITHOUT LIMITING THE FOREGOING, ABALTA HEREBY DISCLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUIET ENJOYMENT. WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR SERVICES OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES.
To the fullest extent permitted by applicable law, you will indemnify and hold harmless Abalta and our officers, directors, agents, partners and employees (individually and collectively, the “Abalta Parties”) from and against any loss, liability, claim, demand, damages, expenses or costs ("Claims") arising out of or related to (a) your access to or use of our Services; (b) your Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct while using or in connection with our Services. You agree to promptly notify Abalta Parties of any third party Claims, cooperate with Abalta Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). You also agree that the Abalta Parties will have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Abalta or the other Abalta Parties.
Limitations of Liability
In no event will Abalta or its directors, officers, employees, agents or affiliates be liable to you or anyone else under any theory of liability- whether based in contract, tort, negligence, strict liability, warranty, or otherwise- for any indirect, consequential, special, incidental, exemplary, punitive or special damages (including loss of use, loss of profits, loss of data or loss of life) arising out of or related to the Services or for any decision made or action taken by you while using the Services or in reliance on the information or materials provided on or available through the Services, even if advised of the possibility of such damages.
The total liability of Abalta and the other Abalta Parties, for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to one-thousand dollars USD ($1,000).
The limitations set forth in this section will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Abalta or the other Abalta Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
To the fullest extent permitted by applicable law, you release Abalta and the other Abalta Parties from any and all responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between you and any third party and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
Transfer and Processing of Data
By accessing or using our Services, you consent to: (a) the sharing of your information with any application you attach to our platform; and (b) the processing, transfer and storage of information about you in and to the United States and other countries, where you may not have the same rights and protections as you do under local law.
Dispute Resolution; Binding Arbitration
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Abalta and limits the manner in which you can seek relief from us.
Except for small claims disputes in which you or Abalta seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Abalta seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Abalta waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, all disputes arising out of or relating to these Terms or our Services will be resolved through confidential binding arbitration held in [Los Angeles, California] in accordance with the Streamlined Arbitration Rules and Procedures ("Rules") of the Judicial Arbitration and Mediation Services ("JAMS"), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
You and Abalta agree that any dispute arising out of or related to these Terms or our Services is personal to you and Abalta and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.
You and Abalta agree that these Terms affect interstate commerce and that the enforceability of this section will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA"), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and Company agree that for any arbitration you initiate, you will pay the filing fee and Company will pay the remaining JAMS fees and costs. For any arbitration initiated by Company, Company will pay all JAMS fees and costs. You and Abalta agree that the state or federal courts of the State of [California] and the United States sitting in [Los Angeles, California] have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
ANY CLAIM ARISING OUT OF OR RELATED TO THESE TERMS OR OUR SERVICES MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, THE CLAIM IS PERMANENTLY BARRED, WHICH MEANS THAT YOU AND ABALTA WILL NOT HAVE THE RIGHT TO ASSERT THE CLAIM.
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this section. In order to be effective, the opt out notice must be delivered in writing to 9444 Waples Street, Suite 470, San Diego, CA 92121 and include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with the governing law and jurisdiction below.
Governing Law; Jurisdiction
These Terms and your use of the Services shall be governed by and interpreted in accordance with the laws of the State of California, without regard to any conflict of laws principles that would require the application of the laws of a different jurisdiction. You agree to submit to the personal jurisdiction of the state and federal courts located in Los Angeles, California and to submit any dispute, claim or action arising out of or related to your use of the Services or these Terms exclusively in such courts, and hereby waive any objections to the jurisdiction and venue of such courts.
You may not assign or delegate any right or duty under these Terms or related to the Services without the prior written consent of Abalta. Any attempted assignment or delegation without such consent will be null and. We may assign any right or duty under these Terms or related to the Services without notice to you. Subject to the foregoing, these Terms will be binding on and will inure to the benefit of each of our respective representatives, heirs, administrators, successors and permitted assigns.
No duty or breach of these Terms may be waived by our acts or omissions, except by an instrument in writing expressly waiving the duty or breach and signed by an authorized representative of Abalta. Any waiver (express or implied) by us of any duty or breach will not constitute a waiver of any other or subsequent duty or breach.
Any questions about these Terms, or any other questions concerning the Services, or notices should be directed to:
Abalta Technologies, Inc.
Entire Agreement; Miscellaneous
These Terms constitute the entire agreement between you and us with regard to your access to and use of this Site, and supersede all prior and contemporaneous negotiations, statements and agreements, whether written or oral, relating to the subject matter hereof. In the event any provision of these Terms is held to be invalid or unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent permitted under applicable law, and the remaining provisions will continue in full force and effect. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.