Terms of Use

Terms of Use

March 2020

1. Acceptance of the Terms of Use.

Welcome to the website of Azibo Inc., a Delaware Corporation ("Azibo", "we" or "us"). The following terms and conditions (these "Terms of Use") govern your access to or other use of www.azibo.com, including any content, functionality or  Services (defined below) available on or through www.azibo.com, including any associated mobile applications (collectively, the "Website"). Under these Terms of Use, we refer to: (a) landlords and property managers of rental units using the Service as "Managers"; (b) tenants or potential tenants who use the Service as "Tenants"; and (c) generally any user of the Service or Website, including Managers and Tenants, as "Users" or “you”.

Please read the Terms of Use carefully before you start to use the Website. By using the Website (other than to read these Terms of Use for the first time) or by clicking to accept or agree to the Terms of Use when this option is made available to you, you accept and agree to be bound and abide by these Terms of Use and our Privacy Policy, incorporated herein by reference. If you do not agree to these Terms of Use or the Privacy Policy, do not access or use the Website.

This Website is offered and available to Users who are 18 years of age or older and reside in the United States or any of its territories or possessions. By using this Website, you represent and warrant that you are of legal age to form a binding contract with Azibo and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, do not access or use the Website.

2. Intellectual Property Rights.

(A)  The Website, our Services and associated content (and any derivative works or enhancements of the same) including, but not limited to, all text, illustrations, files, images, software, scripts, graphics, photos, sounds, music, videos, information, content, materials, products, services, URLs, technology, documentation, and interactive features included with or available through our Website and all intellectual property rights to the same, including, without limitation, all trademarks, service marks, trade names and trade dress that may appear in or on our Website are owned by us, our licensors, our affiliates, or identified third parties (collectively, the “Website Content”) are owned by us, our licensors, or both.  Except for the limited use rights granted to you in these Terms of Use, you shall not acquire any right, title or interest in our Website or any Website Content.  Any rights not expressly granted in these Terms of Use are expressly reserved.

(B)  The Website and associated Services are provided for your personal, non-commercial use only.  When using our Website, you agree to comply with all applicable federal, state, and local laws including, without limitation, copyright law.  Except as expressly permitted in these Terms of Use or as we may otherwise permit, you may not use, reproduce, duplicate, distribute, create derivative works based upon, publicly display, publicly perform, publish, transmit, or otherwise exploit Website Content for any purpose whatsoever without obtaining prior written consent from us or, in the case third-party content, its applicable owner.  In certain instances, we may suggest, ask or otherwise permit you to download, install or print Website Content.  In such a case, you may do so only in the manner authorized and for your non-commercial use only. You acknowledge that you do not acquire any ownership rights by downloading, installing or printing Website Content.

3. Description of Services.

Azibo currently provides an internet-based platform for Managers to connect third party bank accounts to view and categorize transactions and to collect online rent payments via ACH or card from Tenants (the "Services"). More information on the Services is provided below and throughout the Website. The Services include any content, features, or functionality currently available on the Website or that may be introduced in the future. Users may use some or all of the features of the Service. AZIBO RESERVES THE RIGHT TO ADD, SUBTRACT, OR CHANGE THESE SERVICES.

3.1 Connecting Third Party Accounts.

Azibo uses Plaid Inc. (“Plaid”) to gather your data from financial institutions. By using our Service, you grant Azibo and Plaid the right, power, and authority to act on your behalf to access and transmit your personal and financial information from the relevant financial institution. You agree to your personal and financial information being transferred, stored, and processed by Plaid in accordance with the Plaid Privacy Policy.

3.2 Online Tenant Payments.

Paying rent with Azibo via the ACH network is free for Tenants. Payments by credit/debit card involve a processing fee, which will be added to the amount of the Tenant Payment. Azibo is currently free for Managers: there is no charge to connect bank accounts or to receive rent payments via ACH using the Service.

Azibo uses Stripe to execute online payment transactions. By using this feature of the Service, you agree to be bound by the Stripe Connected Account Agreement, available at https://stripe.com/connect/account-terms. This may be updated from time to time. For avoidance of doubt, if any payment you initiate using the Service does not successfully complete, the payee reserves the right to seek payment from you via or outside the Service. Any authorization you provide to make repeating automatic payments using the Service will remain in effect until cancelled.

By providing Azibo with your banking, credit/debit card, or other payment information, you authorize us to use it and disclose it to Stripe or other payment gateway providers for the purpose of processing the payments you authorize on the Service. Payment gateway providers may also aggregate your information for other purposes, but only in ways that don’t identify you personally or disclose any personal information about you, and may disclose your personal information when necessary to comply with the law.

We never take custody of money transferred using the Service and we’re not responsible for what recipients do with the payments. For example, Azibo is not responsible for a Manager returning a deposit to Tenant. If a payor or payor’s bank or card issuer initiates a reversal, chargeback, or dispute of a payment made to you, you authorize us and our third-party payment providers to reverse or otherwise debit funds from your account in accordance with applicable financial institution and network policies and procedures. In the event we are unable to reverse or otherwise debit funds from your account, you agree promptly to deposit such funds upon our request. We may also initiate a reversal or other debit, or take other actions we determine to be appropriate, if we believe fraud or other abuse of the Service has occurred.

If a Tenant Payment is rejected for NSF, it will be the Tenant's responsibility to initiate a new transaction or to make the Tenant Payment in some other manner and pay Azibo the NSF fee. It will be the Manager's responsibility to assess a late Tenant Payment fee, if any, to Tenant. Tenant will be required to pay the NSF fee, and any late fees assessed by the Manager, on or before the initiation of any new ACH transaction through the Website. During the time that the Tenant makes Tenant Payments to the Manager through the Services, both Parties agree to ensure that all bank account, ACH information, and debit or credit card information be up-to-date and accurate.

Either User may cancel the ACH payment feature at any time by contacting support@azibo.com, as long as a current ACH transaction is not in process. If a current ACH transaction is in process, such transaction will be finalized before Azibo disables this feature of the Service.

AZIBO IS NOT A COLLECTION COMPANY AND IN NO WAY GUARANTEES PAYMENT BY TENANT NOR DOES IT INHERIT THE RISK ASSUMED BY ANY PARTY IN RELATION TO ANY TRANSACTION PERFORMED THROUGH THE SERVICE.

3.3 Mobile Application Terms

Without limiting the foregoing, you acknowledge and agree that the availability of any mobile application (“Application”) we may offer, including related Services, is dependent on the third-party from whom you received the Application license, e.g., the Apple iTunes, Google Play, or other App stores (“App Store"). You acknowledge that these Terms of Use are between you and Azibo and not with the App Store. Azibo, not the App Store, is solely responsible for its Application, including the Services, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use our Applications, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Services, including the applicable Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using our Services, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms of Use and will have the right to enforce them.

4. Registration Obligation and Account Security

4.1 User Registration.

In order to access the Services, Users must provide certain registration details or other information. It is a condition of your use of the Website that all the information you provide on the Website is correct, current and complete. You agree that all information you provide to register with this Website or otherwise, including but not limited to the use of any interactive features on the Website, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

4.2 Validation of Identity.

Users authorize Azibo, directly or through third parties, to make any inquiries we consider necessary to validate your identity. This may include asking you for further information, requiring you to take steps to confirm ownership of your email address or financial instruments, or verifying your information against third party databases or through other sources. Nothing herein shall be construed to require Azibo to verify the identity of any User on the Website nor will Azibo have any liability for failure to verify any User's identity.

4.3 Account Security.

If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Website or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use.

5. Fees and Payments.

Azibo may offer certain portions of our Services at no charge and others for a one-time fee, on a subscription basis or under any other lawful pricing structure.  In all instances, our Services are not being sold to you; rather, you are being granted a limited license to use our Services. In addition, the license to use of any of our paid Services does not necessarily transfer across operating systems and/or different equipment (e.g., mobile devices, computers, etc.).  Azibo reserves the right at any time to change and/or increase the fees for access to portions of the Service or the Service as a whole. All fees shall be payable through the User's account.

5.1 Payment Cancellation; Refund Policy.

For payments you believe were improperly made, Azibo may, in its sole discretion, void, rescind, or issue a credit for your Tenant Payment made through the Service at any time prior to the remittance of such Tenant Payment to your Manager. If a payment dispute arises after payment is forwarded to your Manager, the responsibility to settle the dispute rests with you and the Manager.

5.2 Unauthorized Transactions.

Azibo is not responsible for loss incurred as a result of non-sufficient funds, returned checks, chargebacks, claims, reversals, WSUPP retrieval fee, recall fees, excessive returns fees, early funding fees, account maintenance fees, or any unforeseeable unsuccessful transaction or other fees associated with those transactions Azibo reserves the right to assess fees to Tenant or to the Manager related to non-sufficient funds and returned checks.

5.3 Reimbursements; Investigations. 

Azibo reserves the right to seek reimbursement from Manager, and Manager will reimburse Azibo, if Azibo discovers a fraudulent transaction, erroneous or duplicate transaction, or if Azibo receives a chargeback or reversal from any Tenant credit card company or bank for any reason. You agree to and acknowledge our right to investigate any and all transactions for fraud. Further, you agree to cooperate with any reasonable requests made by Azibo in an effort to investigate fraud. Manager agrees that Azibo has the right to obtain such reimbursement by charging Manager's account, deducting amounts from future transfers, charging Manager's credit card or any bank account associated with your account, or obtaining reimbursement from Manager by any other lawful means, including using a third party collection agency. Failure to pay for reimbursements of a charge back or a reversal of payment is cause for termination of Manager's account.

AZIBO IS NOT A COLLECTION COMPANY AND IN NO WAY GUARANTEES PAYMENT BY TENANT NOR DOES IT INHERIT THE RISK ASSUMED BY ANY PARTY IN RELATION TO ANY TRANSACTION PERFORMED THROUGH THE SERVICE.

6. Termination.

(A)  Users may cancel the use of the Service at any time effective immediately by contacting us at support@azibo.com. You will remain liable for all outstanding payments and fees due at the time of cancellation. If you request, Azibo will delete your User account, but this request will only delete your personal account and not information that relates to you that is on another User's account (for instance, a signed lease to which you are a party).

(B) We reserve the right in our sole discretion and at any time to terminate or suspend your User account and/or block your use of our Website or Services for any reason including, without limitation if you have failed to comply with the letter and spirit of these Terms of Use.  You agree that Azibo is not liable to you or any third party for any termination or suspension of your User account or for blocking your use of our Website.

(C)  Suspension or termination shall not affect your obligations to us under these Terms of Use.   The provisions of these Terms of Use which by their nature should survive the suspension or termination of your User account or these Terms of Use shall survive including, but not limited to the rights and licenses that you have granted hereunder, indemnities, releases, disclaimers, limitations on liability, provisions related to choice of law, and all of the provisions under “Miscellaneous.”

7. Prohibited Uses.

In connection with the Services or your use of the Website, you will not:

  • Breach this agreement;
  • Violate any applicable federal, state, local or international law or regulation;
  • Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use and our Privacy Policy;
  • Disclose or distribute another User's information to a third party, or use the information for marketing purposes unless you receive the User's express consent to do so;
  • Infringe our or any third party's copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
  • Act in a manner that is defamatory, trade libelous, threatening or harassing;
  • Provide false, inaccurate or misleading information;
  • Send or receive what we reasonably believe to be potentially fraudulent funds;
  • Impersonate any person, or misrepresent your identity or affiliation with any person or organization or in any way that is likely to deceive any person;
  • Provide yourself a cash advance from your credit card or participate in any actions constituting credit card fraud, check fraud, or money laundering (or help others to do so);
  • Refuse to cooperate in an investigation or provide confirmation of your identity or any information you provide to us;
  • Use an anonymizing proxy;
  • Conduct your business or use the Services in a manner that results in or may result in complaints, disputes, claims, reversals, chargebacks, fees, fines, penalties and other liability to Azibo, other Users, third parties or you;
  • Send unsolicited email to a User or use the Services to collect payments for sending, or assisting in sending, unsolicited email to third parties;
  • Take any action that imposes an unreasonable or disproportionately large load on our infrastructure;
  • Facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information;
  • Use any robot, spider, other automatic device, or manual process to monitor or copy our Website without our prior written permission
  • Use any device, software or routine to bypass our robot exclusion headers, or interfere or attempt to interfere with our Website or the Services;
  • Take any action that may cause us to lose any of our services from our internet service providers, payment processors, or other suppliers;

Azibo will not be held liable for the violation of the above terms or any other illegal activity not foreseen at the time.

8.  User Content 

We may now or in the future permit users to post, upload, transmit through, or otherwise make available through our Services (collectively, “submit”) messages, text, illustrations, data, files, images, graphics, photos, comments, sounds, music, videos, information, content, and/or other materials (“User Content”).  Subject to the rights and license you grant herein, you retain all right, title and interest in your User Content.  We do not guarantee any confidentiality with respect to User Content even if it is not published through our Services.  It is solely your responsibility to monitor and protect any intellectual property rights that you may have in your User Content, and we do not accept any responsibility for the same.  We have the right, but not the obligation, to monitor User Content.  We have the right in our sole discretion and for any reason whatsoever to edit, refuse to post, remove, or disable access to any User Content.  

8.1 Restrictions

You shall not submit any User Content protected by copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right without the express permission of the owner of the respective right. You are solely liable for any damage resulting from your failure to obtain such permission or from any other harm resulting from User Content that you submit.

You represent, warrant, and covenant that you will not submit any User Content that:

  • violates or infringes in any way upon the rights of others, including, but not limited to, any copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right of any person or entity;
  • impersonates another or is unlawful, threatening, abusive, libelous, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, pornographic, or otherwise objectionable, or otherwise violates any applicable law;
  • encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law;
  • is an advertisement for goods or services or a solicitation of funds;
  • includes personal information such as messages which identify phone numbers, social security numbers, account numbers, addresses, or employer references;
  • contains a formula, instruction, or advice that could cause harm or injury; or
  • is a chain letter of any kind.

Moreover, any conduct by a user that in our sole discretion restricts or inhibits any other user from using or enjoying our Services will not be permitted.  

8.2 License to User Content

  • By submitting User Content to us, simultaneously with such posting you automatically grant, or represent or warrant that the owner has expressly granted, to us a worldwide, royalty-free, perpetual, irrevocable, non-exclusive, fully sublicensable, and transferable right and license to use, reproduce, distribute, create derivative works based upon (including, without limitation, translations), publicly display, publicly perform, transmit, and publish the User Content (in whole or in part) as we, in our sole discretion, deem appropriate including, without limitation, (1) in connection with our business; and (2) in connection with the businesses of our affiliates, licensees, assignees, successors, parents, subsidiaries, and their related companies.  We may exercise this grant in any format, media or technology now known or later developed for the full term of any copyright that may exist in such User Content. Furthermore, you also grant other users permission to access your User Content and to use, reproduce, distribute, create derivative works based upon, publicly display, publicly perform, transmit, and publish your User Content for personal, non-commercial use as permitted by the functionality of our Services and these Terms of Use.  Notwithstanding the foregoing, you waive any and all claims you (or any copyright holder) may now or later have in any jurisdiction to so-called “moral rights” or rights of “droit moral” with respect to the User Content.
  • By submitting User Content, you also grant us the worldwide, perpetual, irrevocable, fully sublicensable, and transferable right, but not the obligation, to use any and all names, identities, titles, likenesses, distinctive appearances, physical likenesses, images, portraits, pictures, photographs (whether still or moving), screen personas, voices, vocal styles, statements, gestures, mannerisms, personalities, performance characteristics, biographical data, signatures, and any other indicia or imitations of identity or likeness listed, provided, referenced, or otherwise contained in the User Content (all attributes, collectively, per person, a “Persona”), including, without limitation, your name and geographical location (e.g., “Sally T. – Finneytown, OH”), for purposes of advertising and trade, in any format, medium, or technology now known or later developed without further notice, approval, or compensation, unless prohibited by law.  Our uses of your Persona will be consistent with the terms of our Privacy Policy, where it is applicable.
  • Notwithstanding the generality of the foregoing, we reserve the right to display advertisements in connection with your User Content and to use your User Content for advertising, marketing, promotional, and other commercial purposes.  You acknowledge and agree that your User Content may be included on the websites and advertising networks of our distribution partners, marketing partners, accounts, and third-party service providers (including their downstream users).

9. Reliance on Information Posted.

(A)  Users acknowledge that Azibo does not verify the identity or accuracy of any User or any information User Content on the Services or Website. Any Website Content or other information presented on or through the Website, including, but not limited to material presented on our blog, information in Rent Roll Reports, or information in Cash Flow Reports is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of the User Content or any other information. In all instances, it is your responsibility to evaluate the accuracy, timeliness, completeness, or usefulness of any Website Content.  Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.

(B)  In some instances, Website Content will include content posted by a third-party or will represent the opinions and judgments of a third-party.  We do not endorse, warrant and are not responsible for the accuracy, timeliness, completeness, or reliability of any opinion, advice, or statement offered through our Website by anyone other than our authorized employees or spokespersons while acting in their official capacities. Our Website may also link or contain links to other websites maintained by third parties.  We do not operate or control, in any respect, or necessarily endorse the content found on these third-party websites.  You assume sole responsibility for your use of third-party links.  We are not responsible for any content posted on third-party websites or liable to you for any loss or damage of any sort incurred as a result of your dealings with any third-party or their website.

10. Intellectual Property Rights.

(A) The Website, our Services and associated content (and any derivative works or enhancements of the same) including, but not limited to, all text, illustrations, files, images, software, scripts, graphics, photos, sounds, music, videos, information, content, materials, products, services, URLs, technology, documentation, and interactive features included with or available through our Website and all intellectual property rights to the same, including, without limitation, all trademarks, service marks, trade names and trade dress that may appear in or on our Website are owned by us, our licensors, our affiliates, or identified third parties (collectively, the “Website Content”) are owned by us, our licensors, or both.  Except for the limited use rights granted to you in these Terms of Use, you shall not acquire any right, title or interest in our Website or any Website Content.  Any rights not expressly granted in these Terms of Use are expressly reserved.

(B)  The Website and associated Services are provided for your personal, non-commercial use only.  When using our Website, you agree to comply with all applicable federal, state, and local laws including, without limitation, copyright law.  Except as expressly permitted in these Terms of Use or as we may otherwise permit, you may not use, reproduce, duplicate, distribute, create derivative works based upon, publicly display, publicly perform, publish, transmit, or otherwise exploit Website Content for any purpose whatsoever without obtaining prior written consent from us or, in the case third-party content, its applicable owner.  In certain instances, we may suggest, ask or otherwise permit you to download, install or print Website Content.  In such a case, you may do so only in the manner authorized and for your non-commercial use only. You acknowledge that you do not acquire any ownership rights by downloading, installing or printing Website Content.

11. Copyright Infringement.

We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Services infringe your copyright, you may request removal of those materials (or access thereto) from the Services by submitting written notification to our Copyright Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) ("DMCA"), the written notice (the "DMCA Notice") must include substantially the following:

  • Your physical or electronic signature.
  • Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Services, a representative list of such works.
  • Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
  • Adequate information by which we can contact you (including your name, postal address, telephone number and, if available, email address).
  • A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law.
  • A statement that the information in the written notice is accurate.
  • A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

Our designated Copyright Agent to receive DMCA Notices is:

Copyright Agent

Zibo Inc.

1601 Lewis St

Reno, NV 89502

support@azibo.com

We will investigate notices of copyright infringement and take appropriate actions under the DMCA. Inquiries that do not follow this procedure may not receive a response.

12. Geographic Restrictions.

The owner of the Website is based in the state of California in the United States. We provide this Website for use only by persons located in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

13. Disclaimer of Warranties.

YOU EXPRESSLY AGREE THAT USE OF OUR WEBSITE, INCLUDING ANY SERVICES AND/OR WEBSITE CONTENT, IS AT YOUR SOLE RISK AND THAT WE PROVIDE THE SAME (INCLUDING ANY SOFTWARE) ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.  WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE ACH PARTIES DISCLAIM ANY AND ALL WARRANTIES INCLUDING ANY:  (1) WARRANTIES THAT OUR WEBSITE OR SERVICES WILL MEET YOUR REQUIREMENTS; (2) WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF OUR WEBSITE, SERVICES OR WEBSITE CONTENT; (3) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE; (4) WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED OR ACCESSED THROUGH OUR WEBSITE; (5) WARRANTIES CONCERNING THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF OUR WEBSITE; (6) WARRANTIES THAT YOUR USE OF OUR WEBSITE OR SERVICES WILL BE SECURE OR UNINTERRUPTED; AND (7) WARRANTIES THAT ERRORS IN OUR WEBSITE, SERVICES OR WEBSITE CONTENT (INCLUDING SOFTWARE) WILL BE CORRECTED.

14. Limitation on Liability.

IN NO EVENT WILL ANY OF THE AZIBO PARTIES (AS DEFINED BELOW) BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF ALL OF THE AZIBO PARTIES EXCEED THE LESSER OF THE TOTAL PAYMENTS RECEIVED FROM YOU BY ACH DURING THE PRECEDING TWELVE (12) MONTH PERIOD OR $100.  FURTHERMORE, YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH ANY OF OUR SERVICES OR THESE TERMS OF USE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

15. Indemnification.

You agree to defend, indemnify and hold harmless Azibo, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns (collectively, the “Azibo Parties”) from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Terms of Use or your use of the Website, including, but not limited to, any User Content you provide on the Website or Services, any use of the Website Content, Services and products other than as expressly authorized in these Terms of Use or your use of any information obtained from the Website.

16. Governing Law and Jurisdiction.

These Terms of Use shall be construed in accordance with the laws of the State of Delaware without regard to its conflict of laws rules.  Any legal proceedings against ACH that may arise out of, relate to, or be in any way connected with our Services or these Terms of Use shall be brought exclusively in the state or federal courts of Delaware and you waive any jurisdictional, venue, or inconvenient forum objections to such courts.

17.  Dispute Resolution & Mandatory Arbitration

(A)  We each agree to first contact each other with any disputes and provide a written description of the problem, all relevant documents/information and the proposed resolution. You agree to contact us with disputes by contacting us at support@azibo.com. We will contact you based on the contact information you have provided us.

(B)  If after 30 days the parties are unable to resolve any dispute raised under the previous provision, the dispute may only be submitted to arbitration consistent with this Section. The parties understand that they would have had a right or opportunity to litigate disputes through a court and to have a judge or jury decide their case, but they choose to have any disputes resolved through arbitration.

(C)  Each of us agree that any claim or dispute between us, and any claim by either of us against any agent, employee, successor, or assign of the other, including, to the full extent permitted by applicable law, third parties who are not signatories to this agreement, whether related to this agreement or otherwise, including past, present, and future claims and disputes, and including any dispute as to the validity or applicability of this arbitration clause, shall be resolved by binding arbitration administered by the JAMS under its rules and procedures in effect when the claim is filed. The rules and procedures and other information, including information on fees, may be obtained from JAMS’ website (www.jamsadr.com) or by calling JAMS at 949-224-1810.

(D)  We are entering into this arbitration agreement in connection with a transaction involving interstate commerce.  Accordingly, this arbitration agreement and any proceedings thereunder shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16. Any award by the arbitrator(s) may be entered as a judgment in any court having jurisdiction.

(E)  Exception to Arbitrate. Either of us may bring qualifying claims in small claims court. Further, as set forth below, we each agree that any arbitration will be solely between you and Azibo, not as part of a classwide claim (i.e., not brought on behalf of or together with another individual's claim). If for any reason any court or arbitrator holds that this restriction is unconscionable or unenforceable, then our agreement to arbitrate doesn't apply and the classwide dispute must be brought in court.

18.  NO CLASS ACTIONS

TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.

19.  NO TRIAL BY JURY

TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.

20. Amendment; Additional Terms

(A) We reserve the right in our sole discretion and at any time and for any reason, to modify or discontinue any aspect or feature of our Website or to modify these Terms of Use.  In addition, we reserve the right to provide you with operating rules or additional terms that may govern your use of our Website generally, or any of our specific Services, or both (“Additional Terms”).  To the extent any Additional Terms conflict with these Terms of Use, the Additional Terms will control.  

(B) Modifications to these Terms of Use or Additional Terms will be effective immediately upon notice, either by posting on the Website or notification by email.  It is your responsibility to review the Terms of Use from time to time for any changes or Additional Terms.  Your access and use of our Website or any of our Services following any modification of these Terms of Use or the provision of Additional Terms will signify your assent to and acceptance of the same.  If you object to any subsequent revision to the Terms of Use or to any Additional Terms, immediately discontinue use.

21.  Miscellaneous

(A)  No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.

(B)  Except where specifically stated otherwise, if any part of these Terms of Use is unlawful or unenforceable for any reason, we both agree that only that part of the Terms of Use shall be stricken and that the remaining terms in the Terms of Use shall not be affected. So, for example, if a provision in these terms is found to be unenforceable, we agree an arbitrator (or, if permitted, a court) shall only strike that provision and that the remaining terms of these Terms of Use shall remain in force. 

(C)  Where we have provided you with a translation of the English language version of these Terms of Use, our Privacy Policy or Additional Terms, you agree that the translation is provided for your convenience only and that the English version governs your relationship with us. The English language version takes precedence if there is any contradiction between the English and translated versions.

(D) These Terms of Use (including the Privacy Policy and any Additional Terms incorporated by reference) constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between us with respect to such subject matter.

(E)  You may not assign these Terms of Use or assign any rights or delegate any obligations hereunder, in whole or in part, without our prior written consent.  Any such purported assignment or delegation by you without the appropriate prior written consent will be null and void and of no force and effect.  We may assign these Terms of Use or any rights hereunder without your consent and without notice.

22. Your Comments and Concerns.

All other feedback, comments, requests for technical support and other communications relating to the Website should be directed to support@azibo.com.

Thank you for visiting the Website.

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