DEVELOPER
TERMS OF USE

Last Updated: June 26, 2020

Welcome to Zabo. Zabo provides an API-driven platform (as modified, the “API”) that enables users (the “End Users”) to aggregate their End User Data (as defined below) from the data sources where your financial account information and data are stored (as modified from time to time, the “Zabo Services”). The website at https://www.zabo.com (the “Website”), the and the various other related services, and other features, functions, software, applications and websites are provided and operated, and are being made available to you and the other Developers by Modular, Inc. d/b/a Zabo (“Zabo”, “we”, “our” or “us”). “End User Data” means an End User’s financial account information and data, including (a) account name, account type and public wallet or deposit addresses, (b) information related to account balances account transactions, in both amounts and in other currency equivalents (e.g. US Dollars), (c) information about account transactions, including amount, date, time, type, location, price, cost basis, fees, quantity, sender and recipient and (d) information about such End User as the account owner, such as publicly provided name.

These Terms of Use govern the access and use by you (“Developer”, “you” or “your”) of the API, the Zabo Services, the Website, the dashboards, the related tools and other products or services provided by Zabo (collectively the “Developer Services”) that you can use to integrate the API and Zabo Services in into your application or a third-party application (collectively, the “Zabo Enabled Applications”).

  1. Acceptance of Terms. THESE TERMS OF USE (AS MODIFIED FROM TIME TO TIME, “TERMS”) GOVERN YOUR ACCESS AND USE OF THE DEVELOPER SERVICES. BY CLICKING “I AGREE”, DOWNLOADING, USING, OR ACCESSING ANY OF THE DEVELOPER SERVICES OR OTHERWISE SIGNIFYING YOUR ACCEPTANCE OF THESE TERMS, YOU REPRESENT AND WARRANT THAT (A) YOU ARE AUTHORIZED TO ENTER THESE TERMS FOR AND ON BEHALF OF YOURSELF (AND YOUR ORGANIZATION), AND ARE DOING SO, (B) YOU (AND YOUR ORGANIZATION) CAN LEGALLY ENTER INTO THESE TERMS AND (C) YOU HAVE READ AND UNDERSTAND AND AGREE THAT YOU (AND YOUR ORGANIZATION) AND EACH USER SHALL BE BOUND BY THESE TERMS AND ZABO’S PRIVACY POLICY (HTTPS://ZABO.COM/PRIVACY-POLICY)(THE “PRIVACY POLICY”) AND ALL MODIFICATIONS AND ADDITIONS PROVIDED FOR. If you do not have the legal authority to bind your organization, please do not access or use the Developer Services. From time to time, These Terms shall also apply to any upgrades or updates subsequently provided by Zabo for the Developer Services. If you do not accept and agree to be bound by these Terms and/or the Privacy Policy, you are not authorized to access or otherwise use the Developer Services.

    Please note that these Terms do not apply to the use of the API or the Zabo Services by the End Users of our customers. That use is covered by our End User Terms of Service and other terms.

    These Terms contain an Arbitration provision which will, with limited exception, require you to submit disputes you have against Zabo to binding and final arbitration. You will only be permitted to pursue claims against Zabo on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.

  2. To access and use the Developer Services, you must be at least 18 years of age. BY CLICKING THE “I AGREE” BUTTON, BY DOWNLOADING, INSTALLING OR OTHERWISE ACCESSING OR USING THE DEVELOPER SERVICES, YOU REPRESENT THAT:

  3. Privacy. Your privacy is important to Zabo. Our goal is to make the Developer Services as good, useful and rewarding for you as possible. In order to do that, Zabo may collect and process certain data and information from you when you use the Developer Services. By accessing or using the Website, the Developer Services, you agree that Zabo may collect, use and disclose, as set forth in the Privacy Policy, the information you provide when you access and use the Developer Services, and in some cases, information that is provided by or through the Developer Services.

  4. Modification of Terms of Use. These Terms of Use may be changed, modified, supplemented or updated by Zabo from time to time. If Zabo updates these Terms, it will update the “last updated” date at the top of these Terms. Please check these Terms periodically for changes. Your continued use of any of the Developer Services after the posting of changes constitutes your binding acceptance of such changes. If Zabo makes a material change to these Terms or Service that will affect an existing Service, Zabo will use commercially reasonable efforts to notify you by posting a notice on your account administration page. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE DEVELOPER SERVICES.

    To the extent that any modifications to the Terms are not allowed under applicable laws, the prior most recent version of the Terms shall continue to apply.

  5. Developer Services.

    1. Accessing and Using the Developer Services.

      1. To access and use the Developer Services, you must register and create an account (the “Developer Account”).

      2. In registering and creating an account, you agree to (i) provide true, accurate, current, and complete information about yourself as prompted during the registration and account creation process (“Registration Data”), and (ii) maintain and promptly update the Registration Data, including credit card information, to keep it true, accurate, current and complete. You are responsible for all activities that occur under your account. If you provide any information that is untrue, inaccurate, not current, or incomplete, or Zabo has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Zabo has the right to suspend or terminate your account and prohibit you from accessing and using the Developer Services. You agree not to create an account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one account. You agree not to create an account or to access and use the Developer Services if you have been previously removed by Zabo or if you have been previously banned from accessing and using the Developer Services.

      3. Limited Right to Access and Use. Subject to these Terms, Zabo grants to you, and you accept, a limited, non-assignable, nontransferable, non-sublicensable, and nonexclusive right to access and use the Developer Services to build a Zabo Enabled Application to provide the API and Zabo Services to the End Users in accordance with these Terms. You may terminate your use of the Developer Services at any time.

      4. Security Breach. You are solely responsible for maintaining the confidentiality of any username, password or other access credential necessary to access the Developer Services. You should take steps to protect the confidentiality of your access credentials. Please notify Zabo immediately if you become aware of any unauthorized activity, disclosures, loss, theft or other unauthorized use of your access credentials or any other breach of security (collectively, a “Security Breach”). You agree to cooperate with Zabo in any investigation in connection with a Security Breach.

    2. Starting Out and Sandbox. After you sign up and create a Developer Account, you will have immediate access to the Zabo sandbox (the “Sandbox”). In the Sandbox, you will have access to a development version of the API. The Sandbox connections are fake, dummy connections that simply mimic real connections and real data. The purpose of the Sandbox is to enable you and your potential Zabo Enabled Application to test the functionality of the API and Zabo Services before connecting to live accounts with real End User Data. You acknowledge that (i) the Sandbox functionality and data may differ from the Zabo Services using Live Connections (as defined below) and (ii) the Sandbox is for testing, non-commercial purposes only and Zabo does not guarantee the accuracy or functionality of the Sandbox. You accept the Sandbox on an “as is” basis without warranties of any kind.

    3. Subscriptions and Live Connections. After you sign up and create a Developer Account, you will be automatically put into the Sandbox subscription plan. When you are ready to start working with real End User Data through the API and the Zabo Services (the “Live Connections”), you will go through an activation process to enable Live Connections for your Developer Account. The number of Live Connections that you will be able to access will depend on the subscription plan that you select (as modified from time to time, the “Subscriptions”). The different Subscriptions also provide different services and features, including different levels of support. The current standard Subscriptions and fees can be found at https://zabo.com/pricing (as modified from time to time, the “Fees”).

    4. Custom Relationship. As the number of your Live Connections grow, or you need more custom services, you may be required to enter into Zabo’s subscription agreement. If you have questions, please contact us at support@zabo.com.

    5. Use Restrictions. Developer shall not, and agrees not to assist or otherwise enable any third party to:

      • copy, modify, adapt, translate, create derivative works or improvements or merge copies of any of the Developer Services, including the documentation

      • translate, reverse engineer, de-compile or disassemble any of the Developer Services, except to the extent that applicable law explicitly prohibits this contractual restriction

      • use, disclose, or otherwise process any “personal data” (as used in the Privacy Policy) other than in strict compliance with its terms, privacy policy and applicable law or use this personal information except in connection with its business that employs the Zabo Services, the Developer Services or the other Services; provided that under no circumstances shall Developer sell any such “personal data” or use any such “personal data” for marketing unless it has received the specific consent of each relevant End User or such “personal data” has been fully aggregated or anonymized and does not include any personal data

      • access or use, or permit the access or use of, any of the Developer Service, or access, transmit, process, or store End User Data, in violation of any international, Federal, state or local laws, statutes, rules, regulations or ordinances or in any manner that would be a breach of contract or agreement with the applicable End User

      • defeat, circumvent or disable any copy protection mechanism or mechanism in any of the Developer Services used to limit use duration or access to excluded functionality or capacity

      • not embed any open source, copyleft or community source code in any Zabo Enabled Application or the information technology infrastructure through which you provide your services and products to End Users (collectively, the “Developer Systems”), including, but not limited to, any libraries or code licensed under any General Public License, Lesser General Public License or similar license arrangement in any manner that would require disclosure or license of the API in source code form, or for the purpose of making derivative works, or otherwise limit or restrict the consideration to be charged for the distribution of such software

      • interfere with or disrupt the integrity or performance of any of the Developer Services or any data contained therein

      • install, use, access, display and run any of the Developer Services except in accordance with the terms of this Agreement and the applicable Order

      • except as specifically permitted under the terms of these Terms or to the extent that you have received the specific consent of each relevant End User rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any of the Developer Services or End User Data to any third party, other than End Users as permitted under these Terms, including for purposes of marketing or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service

      • except as specifically provided under the terms of these Terms, delete or in any manner alter the copyright, trademark, and other proprietary rights notices of Zabo appearing on any of the Developer Services or any other Zabo software or products

      • access or use any of the Developer Services or End User Data in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property rights or other rights of any third party, or that violates any applicable law

      • use any of the Developer Services or the End User Data for purposes of: (i) benchmarking or competitive analysis of the Developer Services; (ii) developing, using or providing a competing API or service; or (iii) any other purpose that is to Zabo’s detriment or commercial disadvantage

      • use any of the Developer Services or the End User Data in any manner or for any purpose or application not expressly permitted by these Terms

      • collect and store an End User’s credentials and/or End User Data other than as required to access or use the API or the Zabo Services, as authorized by the End User, as permitted by Zabo, and as permitted under applicable law

      • overload, flood, or spam any part of the Developer Services

      • create a Developer Account for any of the Developer Services by any means other than our publicly-supported interfaces (e.g., creating developer accounts in an automated fashion or otherwise in bulk)

      • access or use any of the Developer Services or End User Data in a manner that violates any agreement between you and the End User or Zabo.

  6. Payments and Refunds.

    1. Payments. Unless otherwise agreed by Zabo, all Fees shall be paid in accordance with the Subscription that you selected by credit or debit card. You authorize Zabo (i) to keep your credit or debit card number on file for future Fees and (ii) to charge your credit or debit card for any such Fees.

    2. Payment Processing. Unless otherwise agreed by Zabo, all Fees and other payments made in connection with the Developer Services or the provision of the API and the Zabo Services to End Users through a Zabo Enabled Application shall be made through a third-party payment processor directed by Zabo (e.g., Stripe, etc.) (any such third-party payment processor, the “Payment Processor”). By agreeing to these Terms or continuing to use the Developer Services, you agree to be bound by the applicable agreements and privacy policy of the Payment Processor. As a condition of Zabo’s enabling payment processing services through a Payment Processor, you agree to provide Zabo accurate and complete information about you, your business, your credit or debit card or bank account and such other information required by the Payment Processor, and you authorize Zabo to share it and any relevant transaction information related to your use of the payment processing services provided by the Payment Processor.

    3. Future Services. In paying any of the Fees, you acknowledge and agree that you are not relying on future availability of any of the Developer Services.

    4. Changes in Fees and Payment Methods. Zabo reserves the right at any time to change the Fees (including to begin charging for services that it is currently providing free of charge) and billing methods, either immediately upon posting on any of the Developer Services or by notifying you by email.

    5. Refunds. ALL FEES ARE NON-REFUNDABLE, NON-CANCELLABLE AND NON-CREDITABLE UNLESS OTHERWISE REQUIRED BY LAW OR AGREED TO BY ZABO IN ITS SOLE DISCRETION.

  7. Zabo Enabled Applications.

    If you provide access to the API and the Zabo Services through a Zabo Enabled Application, you shall comply with the following terms:

    1. Developer Control and Responsibility. Developer has and will retain sole responsibility for: (i) all End User Data, including its use; (ii) the operation, maintenance and management of the Zabo Enabled Applications and or the Developer Systems and (iii) all access to and use of the API and the Zabo Services , directly or indirectly by or through the Zabo Enabled Application or the Developer Systems.

    2. Right to Access and Use. Subject to and conditioned on Developer’s and its authorized users’ compliance with the terms and conditions of these Terms, Zabo grants to Developer and its authorized users a limited, non-exclusive, non-sublicensable, non-transferable right to access and use the API and the Zabo Services during the term as a component of a Zabo Enabled Application or the Developer Systems to provide the API and the Zabo Services to End Users.

    3. Compliance with Laws. Developer shall comply with all applicable international, Federal, state and local laws related to the API and the Zabo Services and the End User Data, including all privacy and financial laws.

    4. Consent; Terms of Use. Developer shall be solely responsible for obtaining express written consent from each End User authorizing Zabo to obtain their End User Data from their currency accounts and provide it to Developer for use in connection with the Zabo Services. Access and use of the API and the Zabo Services by the End Users are subject to Zabo’s End User Terms of Service and Developer shall ensure that each of its End Users agrees to these Terms of Service.

    5. Applications and Developer Systems. Developer acknowledges that Developer is solely responsible, and that Zabo has no responsibility or liability of any kind, for the content, development, operation, support or maintenance of any Zabo Enabled Application or the Developer Systems. Without limiting the foregoing, Developer will be solely responsible for creating and displaying information and content on, through or within its Zabo Enabled Application and/or the Developer Systems.

    6. Data Breaches. Developer shall notify Zabo immediately in writing in the event that Developer becomes aware of any material breach of its security safeguards or has reason to believe that any End User Data may have been subject to unauthorized disclosure, access, or use, which notification shall include the following information: (i) the nature of the unauthorized disclosure or use; (ii) confidential information that was disclosed or used; (iii) the identity of the persons or entities who received the unauthorized disclosure or made the unauthorized use; (iv) what corrective action Developer took or will take to prevent further unauthorized disclosures or uses; (v) what Developer did or will do to mitigate any adverse effect of such unauthorized disclosure or use; and (vi) such other information as Zabo may reasonably request.

    7. End User Data. You must follow best industry practices with respect to the access and use of End User Data including:

      • maintaining administrative, technical, and physical safeguards that are designed to ensure the security, privacy, and confidentiality of End User Data

      • using best industry practice encryption when storing or transmitting any End User Data

      • maintaining reasonable access controls to ensure that only authorized individuals that have a business need have access to any End User Data

      • monitoring the Developer Systems for any unauthorized access and patching vulnerabilities in a timely fashion.

      • planning for and respond to security incidents.

      • storing all End User Data securely and in accordance with all applicable laws.

      • taking all reasonable and appropriate steps (at your expense) to protect all End User Data in the event of a failure of Developer’s security safeguards or unauthorized access to any End User Data from or through Developer, including the provision of the appropriate or legally required notices to affected persons and government or regulatory agencies (as applicable).

  8. Service Termination and Suspension.

    1. Termination. You agree that Zabo in its sole discretion, for any or no reason, and without penalty, may terminate your access and use of the Developer Services or your Developer Account (or any part thereof) that you may have with Zabo and remove and discard all or any part of your account, user profile, at any time. Zabo may also in its sole discretion and at any time prohibit you from accessing and using the Developer Services or discontinue providing access to the Developer Services, or any part thereof, with or without notice. You agree that any termination of your ability to access or use the Developer Services or any account you may have or portion thereof may be effected without prior notice, and you agree that Zabo will not be liable to you or any third party for any such termination. Zabo reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing Zabo to disclose the identity of anyone posting any e-mail messages, or publishing or otherwise making available any materials that are believed to violate these Terms. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies that Zabo may have at law or in equity. As provided herein, Zabo does not permit copyright infringing activities on the Developer Services, and Zabo shall be permitted to terminate access to the Developer Services. BY ACCEPTING THESE TERMS, YOU WAIVE AND SHALL HOLD ZABO HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ZABO DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER ZABO OR LAW ENFORCEMENT AUTHORITIES.

    2. Suspension. Zabo reserves the right to suspend your access and use of the Developer Services as it may deem appropriate in response to actual or suspected violations of these Terms if Zabo reasonably concludes that any of the Developer Services are being used to engage in illegal activity, used outside the scope of the license or causing immediate, material and ongoing harm to Zabo or others. You agree that Zabo shall not be liable to you nor to any third party for any suspension of the Service under such circumstances as described in this Section 8(b).

    3. Survival. Upon termination of these Terms, your use of the Developer Services, the API, the Website or your relationship with Zabo, any provision which, by its nature or express terms should survive, will survive such termination, including, but not limited to, Sections 1, 6, 7, 9, 11 – 13, 15, 16, 18 -23 and this Section 8(c).

  9. Ownership. Zabo (or its licensors) retains all right, title, and interest in the Developer Services, including the API and the Zabo Services, including any and all intellectual property rights. Zabo (or its licensors) reserve all rights not expressly granted. The Developer Services are protected by United States copyright and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Unless expressly authorized in a separate written agreement between you and Zabo, the grant to access and use any of the Developer Services, whether accessed for a fee or free, does not include any right to resell the Developer Services, manage the Developer Services on behalf of third parties, make other commercial use or distribution of the Developer Services or to make any derivative use of the Developer Services, integrate the Developer Services into another service, reproduce, duplicate, copy, or otherwise exploit for any commercial purpose the Developer Services.

    You hereby grant to Zabo a non-exclusive, worldwide, fully paid-up, royalty-fee, non-terminable, perpetual, irrevocable right and license to use, disclose, modify, reproduce, license, distribute, commercialize and otherwise freely exploit any feedback, comments, or suggestions that you provide with respect to any of the Developer Services and all related intellectual property, without restriction of any kind and without any right of accounting.

  10. Prohibited Use. You will not: (i) use the Developer Services for any unlawful, unauthorized, fraudulent or malicious purpose, (ii) modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any portion of the Developer Services (except to the limited extent applicable laws specifically prohibit such restriction); (iii) bypass any measures Zabo may use to prevent or restrict access to the Developer Services or otherwise interfere with any other party’s use and enjoyment of the Developer Services; (iv) use your account, the Developer Services to infringe any intellectual property or other right of any other third party, (v) use bots or other automated methods to: access the Developer Services, download any information, send or redirect messages or perform any other activities through the Developer Services, (vi) upload invalid data, viruses, worms or other software agents through any of the Developer Services , (vii) use the Developer Services for any unlawful or inappropriate activities, such as gambling, obscenity, pornography, violence, transmission of deceptive messages, or harassment, (vii) use the Developer Services for any commercial solicitation purposes or (viii) use any of the Developer Services in breach of these Terms.

  11. Warranty Disclaimer. Content and other information contained within the Developer Services have been prepared or are being provided by Zabo as a convenience to its End Users and is not intended to constitute advice or recommendations upon which a user may rely. Zabo makes no warranty or guarantee about the accuracy, completeness, or adequacy of any such content or other information, including any content, contained in any of the Developer Services. YOUR USE OF THE DEVELOPER SERVICES IS AT YOUR SOLE RISK. ALL DEVELOPER SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ZABO EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND SATISFACTORY QUALITY AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. ZABO, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUPPLIERS MAKE NO WARRANTY THAT THE DEVELOPER SERVICES ARE ACCURATE, TIMELY, UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, OR THAT ANY PROBLEMS ENCOUNTERED WILL BE CORRECTED.

  12. Limitation of Liability. IN NO EVENT SHALL ZABO, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY WITH RESPECT TO THE DEVELOPER SERVICES OR THE PROVISION OF THE API AND ZABO SERVICES TO END USERS THROUGH A ZABO ENABLED APPLICATION (I) FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), OR (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION). IN NO EVENT SHALL ZABO’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THESE TERMS THE AND THE DEVELOPER SERVICES AND THE PROVISION OF THE API AND ZABO SERVICES TO END USERS THROUGH A ZABO ENABLED APPLICATION EXCEED THE GREATER OF (A) THE AMOUNT PAID BY YOU TO ZABO IN THE PRECEDING TWELVE (12) MONTHS OR (B) $50.00. Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you might have additional rights.

  13. Indemnification. You agree to defend, indemnify and hold harmless Zabo, its members, affiliates and/or partners, and its and their officers, directors, partners, shareholders agents, licensees and employees from and against all claims, actions, liabilities, losses, expenses, damages and costs, including but not limited to attorney’s fees that may, at any time, arise out of or relate to (i) your unauthorized or unlawful use of the Developer Services , (ii) your breach of these Terms or violation of any applicable law, (iii) the provision of the API and Zabo Services to End Users through a Zabo Enabled Application or (iv) the infringement by you or any third party using your account, of any intellectual property or other right of any third party. Zabo reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Developer, in which event Developer will assist and cooperate with Zabo in asserting any available defenses.

  14. Force Majeure. Zabo shall not be liable for any failure or delay in performance (other than a payment obligation) due in whole or in part to any cause beyond its reasonable control or its contractors, agents, licensors or suppliers, including but not limited to utility or transmission failures, power failure, strikes or other labor disturbances, acts of God, acts of war or terror, floods, sabotage, fire, natural or other disasters.

  15. Notices. Any notices to you from Zabo regarding the Developer Services or these Terms will be posted on the Website or made by e-mail or regular mail. As part of providing you the Developer Services, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the Developer Services and your Developer Account, which you may not be able to opt-out from receiving them unless you terminate your account. Any notice or communication that you desire or are required to send Zabo under these Terms should be sent to Zabo through one of the means listed in the Contacting Us section below.

  16. Entire Agreement. These Terms of Use, together with the Privacy Policy, constitute the entire agreement between Zabo and you in connection with your use of the Developer Services and except as provided herein, the provision of the API and Zabo Services to End Users through a Zabo Enabled Application and supersedes any prior agreements between Zabo and you regarding use of the Developer Services and the provision of the API and Zabo Services to End Users through a Zabo Enabled Application, including prior versions of these Terms of Use. Any different or additional terms of any related quote, purchase order, confirmation, or similar order form provided to Zabo is hereby rejected and shall have no force or effect. If you have entered into a separate Subscription Agreement or other written agreement with Zabo in connection with the Developer Services, or right to provide access to the API and the Zabo Services through a Zabo Enable Application, the terms of such Subscription Agreement will control your use of the Developer Services and/or the right to provide access to API and the Zabo Services through a Zabo Enabled Application.

  17. Export Controls. You shall not import, export, re-export, or transfer, directly or indirectly, any part of the Developer Services or any underlying intellectual property, information or technology except with Zabo’s prior written approval and in full compliance with all United States, foreign and other applicable export control laws and regulations.

  18. Governing Law and Dispute Resolution. If a dispute arises between you and Zabo, the goal is to provide you with a neutral and cost-effective method of resolving the dispute quickly. Accordingly, you and Zabo agree that any dispute, claim or controversy at law or equity that arises out of these Terms, the Developer Services or the provision of the API and Zabo Services to End Users through a Zabo Enabled Application (a “Dispute”) will be resolved in accordance with this Section 18 or as Zabo and you otherwise agree in writing. Before resorting to these dispute methods, Zabo strongly encourages you to first contact Zabo directly to seek a resolution.

    1. Choice of Law. These Terms shall be governed in all respects by the laws of the State of Texas, without regard to its conflict of law provisions. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY DISPUTE OR OTHERWISE IN CONNECTION WITH THESE TERMS THE DEVELOPER SERVICES OR THE PROVISION OF THE API AND ZABO SERVICES TO END USERS THROUGH A ZABO ENABLED APPLICATION.

    2. Arbitration and Class Action Waiver.

      PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS.

      1. ARBITRATION. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND ZABO (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) IN CONNECTION WITH THESE TERMS THE DEVELOPER SERVICES, OR THE PROVISION OF THE API AND ZABO SERVICES TO END USERS THROUGH A ZABO ENABLED APPLICATION, INCLUDING WITHOUT LIMITATION YOUR RIGHTS OF PRIVACY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S RULES FOR ARBITRATION AND YOU AND ZABO HEREBY EXPRESSLY WAIVE TRIAL BY JURY. ANY ARBITRATION SHALL BE IN ENGLISH AND THE PLACE OF ARBITRATION SHALL BE TARRANT COUNTY, TEXAS. YOUR ARBITRATION FEES AND YOUR SHARE OF ARBITRATOR COMPENSATION SHALL BE GOVERNED BY SUCH RULES. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND ZABO WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. YOU MAY BRING DISPUTES ONLY ON YOUR OWN BEHALF.

        Neither you nor Zabo will participate in a class action or class-wide arbitration for any disputes covered by these Terms to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST ZABO INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Zabo is a party to the proceeding.

        This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.

      2. Judicial Forum for Disputes. In the event that the agreement to arbitrate under Section 18(b) is found not to apply to you or your claim, you and Zabo agree that any judicial proceeding (other than small claims actions) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the federal or state courts covering Austin, Texas. Both you and Zabo irrevocably consent to venue and personal jurisdiction there. Notwithstanding the foregoing, Zabo may bring a claim for equitable relief in any court with proper jurisdiction.

      3. Survival. This arbitration agreement will survive the termination of your use of the Developer Services or your relationship with Zabo.

    3. 30 Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration provisions set forth in Section 18(b) above by sending written notice of your decision to opt-out to support@zabo.com. The notice must be sent to Zabo within thirty (30) days of your use of any of the Developer Services or agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.

    4. Improperly Filed Claims. All claims you bring against Zabo must be resolved in accordance with this Section 18. All claims filed or brought contrary to this Section 18 shall be considered improperly filed. Should you file a claim contrary to this Section 18, Zabo may recover attorneys’ fees and costs up to $10,000, provided that Zabo has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.

    5. Prevailing Party. In the event that either party institutes any arbitration, legal suit, action or proceeding against the other party arising out of or relating to these Terms, the Developer Services, the API or the Website, the prevailing party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs.

    6. Limitation on Time to File Claims. ANY CAUSE OF ACTION OR DISPUTE YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS, THE DEVELOPER SERVICES, THE PROVISION OF THE API AND ZABO SERVICES TO END USERS THROUGH A ZABO ENABLED APPLICATION OR YOUR RELATIONSHIP WITH ZABO MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR DISPUTE IS PERMANENTLY BARRED.

  19. No Agency. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.

  20. Geographic Restrictions. Zabo is based in the state of Texas in the United States. Zabo makes no claims that accessing or using or that any of the Developer Services, the provision of the API and Zabo Services to End Users through a Zabo Enabled Application or any of the content, including any User Content, is accessible or appropriate outside of the United States. Accessing or using the Developer Services may not be legal by certain persons or in certain countries. If you access the Developer Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Zabo with respect thereto.

  21. Electronic Communications. The communications between you and Zabo use electronic means, whether you visit the Website or the Developer Services or send Zabo e-mails, or whether Zabo posts notices on the Website or the Developer Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Zabo in an electronic form; and (b) agree that all terms, conditions, agreements, notices, disclosures, and other communications that Zabo provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. The foregoing does not affect any statutory rights that you might have.

  22. Disclosures. If you are a California resident, you may have this same information emailed to you by sending a letter to Modular, Inc. d/b/a Zabo, 251 SW Wilshire Blvd Ste 124 Burleson, TX 76028-4779 with your email address and a request for this information.

    California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

  23. Contacting Us. If you have any questions or concerns about these Terms of Use, please contact us at support@zabo.com or at Modular, Inc. d/b/a Zabo, 251 SW Wilshire Blvd Ste 124 Burleson, TX 76028-4779. We will use commercially reasonable efforts to respond to your questions or concerns as promptly as possible after we receive them.