Introduction
These are the Terms and Conditions of Use and Service for access to and use of the Cabtera, Inc. ("Cabtera", "we", "us" and "our" throughout) websites (each and collectively the "Site(s)") and services offerings ("Services") ("Terms of Service" and "TOS"). By accessing and using a Site or Service, as a visitor or user ("you" and "your" throughout), you agree to follow and be bound by this TOS, and your access and use is deemed your unconditional acceptance of this TOS. If you do not agree with any of these Terms of Service, you should not use the Site or Services.
Note: Your use of each Site and Service is governed by this TOS and the Cabtera Privacy Policy. A separate agreement between you and Cabtera containing more specific terms and conditions for access and use of any Services may follow, by either signed writing or click acceptance by you ("Agreement"). Once such an Agreement is in place, it shall govern the performance and use of Services in all respects. Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Privacy Policy.
Age
You certify that you are at least 18 years of age. No registration, access or use may be made for or by a User who is not at least 18 years of age upon registration.
Intellectual Property Rights Notice
As between you and us, all content on a Site is the property of Cabtera and is protected under copyright, patent, trademark or other proprietary rights. As between you and us, all content within a Service, other than the content you upload, is the property of Cabtera and is protected under copyright, patent, trademark or other proprietary rights. No logo, graphic, sound or image from a Site or from a Service (other than your own content) may be copied, transmitted, distributed, published (except for its intended purpose) or used by you without Cabtera's prior written permission. Under no circumstances will you acquire any ownership rights or other interest in any content by or through your use of this site. Cabtera Services and other products are protected by common law or are the registered trademarks or service marks of Cabtera in the United States and/or in other countries. The absence on a Site of a designation indicating service or trademark status does not constitute a waiver of any trademark, service mark or other intellectual property right relating to any Service or product name or logo. All other Service, product or company names, marks, logos, and symbols may be the common law or registered marks of their respective owners and should be treated as such.
To the extent the Services include access to or download of proprietary Cabtera software or open source software from the Sites or otherwise ("Software"), such Software is protected by the applicable copyright, patent or other intellectual property rights of either Cabtera or its third party licensors. Any use of the Software is subject to the terms of any applicable end-user or open source license agreement provided on access to or download of such Software.
Restrictions, Disclaimer - Sole Risk/Limited Liability
All Software, whether called evaluation, trial or the like, or provided for licensed production use is provided "AS IS". Except as otherwise expressly permitted in the license agreement provided on access to or download of Software, or otherwise in writing, you may not use Software to provide commercial, development or production services to other individuals or entities. In addition, Software provided for evaluation, trial or other limited purposes may be time-disabled and may cease to operate after a period of time.
Except as otherwise expressly stated in this TOS, Privacy Policy or written agreement, you agree that use of the Site(s) and Services is at your sole risk. Cabtera does not warrant that the Site(s) or Services will be uninterrupted or error free nor does it make any warranty as to results that may be obtained from the use of the Site(s) or Services. Accordingly, you should confirm the accuracy and completeness of all posted information before making any decision related to any Services, products or other matters described in a Site. Cabtera provides no assurances that any reported problems will be resolved by Cabtera, even if Cabtera elects to provide information with the goal of addressing a problem.
ALL INFORMATION, SOFTWARE, PRODUCTS AND SERVICES PROVIDED ON THE CABTERA SITE ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" WITH NO WARRANTIES OR GUARANTEES OF ANY KIND. CABTERA EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTIES, GUARANTEES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE AND NONINFRINGEMENT OF PROPRIETARY AND INTELLECTUAL PROPERTY RIGHTS, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CABTERA MAKES NO WARRANTY THAT THE CABTERA SITES WILL MEET YOUR REQUIREMENTS OR THAT THE CABTERA SITES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE.
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL CABTERA, ITS OFFICERS, AGENTS OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SITE(S), SOFTWARE, INCLUDING EVALUATION SOFTWARE, PRODUCTS OR SERVICES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES THAT MAY OR ALLEGEDLY RESULT FROM THE USE OF OR INABILITY TO USE THE SITE(S) OR SERVICES; OR THAT MAY OR ALLEGEDLY RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE SITE(S) OR SERVICES. YOU HEREBY ACKNOWLEDGE THIS PARAGRAPH APPLIES TO ALL CONTENT ON THE SITE(S) AND SERVICES. NOTWITHSTANDING THE ABOVE, YOUR EXCLUSIVE REMEDIES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTIONS WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE OR OTHERWISE, SHALL NOT EXCEED THE US $100.00.
Exclusions and Limitations
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. Accordingly, some of the above disclaimers and limitations of liability may not apply to you. To the extent Cabtera may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Cabtera's liability shall be the minimum permitted under such applicable law.
Indemnification
You agree to indemnify, defend and hold harmless Cabtera, its parents, subsidiaries and other affiliated companies (and the respective officers, directors, employees or agents of any such entities) from and against any and all claims, liabilities, damages, losses, costs, expenses and fees (including reasonable attorneys' fees) that such parties may incur as a result of or arising from your (or anyone using your account, computer or software's) use of the Cabtera Services or Sites or violation of This TOS. Cabtera reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with Cabtera's defense of such claim, and in no event may you agree to any settlement affecting Cabtera without Cabtera's written consent.
Electronic Communications
When you visit the Cabtera Sites or send e-mails to Cabtera, you are communicating with Cabtera electronically. We may respond to you by e-mail or by posting notices on the Cabtera Sites. You agree that all such notices, disclosures and other communications that Cabtera provides to you electronically satisfy any legal requirement that such communications be in writing.
United States Government Rights
All Cabtera Services and publications are commercial in nature. The Services and software documentation available on the Cabtera Sites are "Commercial Items," as that term is defined in 48 C.F.R.§2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are defined in 48 C.F.R. §252.227-7014(a)(1) and 48 C.F.R. §252.227-7014(a)(5), and used in 48 C.F.R. §12.211, 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as applicable. Pursuant to 48 C.F.R. §12.211, 48 C.F.R. §12.212, 48 C.F.R.§252.227-7015, 48 C.F.R. §227.7202 through 227.7202-4, 48 C.F.R. §52.227-19 and other relevant sections of the Code of Federal Regulations, as applicable, Cabtera's publications, commercial computer software and commercial computer software documentation are distributed and licensed to United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in the license agreements that accompany the products and software documentation and the terms and conditions herein.
Entire Agreement/Modifications on Subsequent Visits Agreed
This TOS provisions constitute the entire agreement, contract and understanding of the parties. Any changes or modifications to this TOS are agreed by the parties on subsequent visits showing a "Last Updated" date subsequent to the initial or prior visit(s).
Law
This TOS and the relationship between you and Cabtera are governed by the laws of the State of California, United States of America, exclusive of choice of law. Any disputes concerning them, and any interpretation thereof, shall be subject to the personal jurisdiction of the state and/or federal courts of San Mateo County and/or the Northern District of California, as applicable and you hereby irrevocably submit to the exclusive jurisdiction of such courts. The failure of Cabtera to exercise or enforce any right or provision of this TOS shall not constitute a waiver of such right or provision. If any provision of this TOS is found by a court of competent jurisdiction to be invalid, you nevertheless agree that the court should endeavor to give effect to the intentions of Cabtera and you as reflected in the provision, and that the other provisions of this TOS remain in full force and effect. This TOS shall remain in full force and effect notwithstanding any termination of your use of the Cabtera Sites. This TOS will be interpreted without application of any strict construction in favor of or against you or Cabtera. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Cabtera without restriction.
Contact us:
If you have any questions about this TOS, or the privacy practices of Cabtera, email support@cabtera.com or write to us at Cabtera, Inc., 111 Deerwood Road, Ste. 200 San Ramon, California 94583; phone: 1.925.364.5490 x 2 for support (Attn: Data Usage).
Publication/Effective Date
Publication/Effective Date: May 23, 2018
This TOS is published and effective as of the date noted above, and is effective as between you and us on first visit. This TOS will be updated from time to time and a Last Updated date will be noted. Continued use of the Site(s) and Services constitutes acceptance of and agreement to such changes.
