Terms of Service
Last updated: 06/25/2021
Welcome to ABAKadabra! We are excited to work with you but ask that you take some time to review these Terms of Service (the "Terms") carefully.
In reading these Terms, we want to clarify that words or phrases such as "ABAKadabra," "us," "we," "our," or "it" refer to ABAKadabra, LLC, a Virginia limited liability company, including its members, affiliates, representatives, successors, assigns, employees, staff, contractors and volunteers. "You," "your," "user," "client," and similar words and phrases mean you, the individual accessing this website or participating in ABAKadabra's different services either for yourself or on behalf of someone else.
1. Accepting these Terms - Legal Contract
These Terms are a legally binding contract between you and ABAKadabra, LLC. That means these Terms govern the following:
- Your relationship with ABAKadabra;
- Your use of abakadabra.com and any of its subdomains (the "Website"), mobile applications, and any other interactive properties through which the services are delivered (collectively, the "Sites"), including your browsing and viewing content or use of other activities provided through the Sites; and
- Your use of the services provided by ABAKadabra through the Sites, as described below in Section 5 (the "Services").
BY ACCESSING THE SITES OR PARTICIPATING IN THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS LEGAL CONTRACT AND ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY ALL OF THE TERMS, CONDITIONS, AND NOTICES CONTAINED IN THESE TERMS JUST AS IF YOU SIGNED A PHYSICAL CONTRACT. THIS APPLIES TO YOU AND ANY INDIVIDUAL UNDER THE AGE OF 18 USING OUR SITES OR SERVICES FOR WHOM YOU ARE THE PARENT OR GUARDIAN.
ABAKADABRA'S SERVICES ARE PROVIDED FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY AND ARE NOT INTENDED AS MEDICAL ADVICE OR AS A SUBSTITUTE FOR THE PROFESSIONAL SERVICES OF A LICENSED PHYSICIAN OR OTHER HEALTH CARE PROVIDER OR PRACTITIONER. ABAKADABRA DOES NOT PROVIDE MEDICAL ADVICE AND IS NOT A LICENSED HEALTH CARE PROVIDER.
Please review Sections 26 and 27 carefully, as they limit ABAKadabra's liability to you and require that you agree to resolve all disputes with ABAKadabra through binding arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and that you waive your right to participate in class actions, class arbitrations, or representative actions. By accepting these Terms, you formally acknowledge that you have read and understand these Terms and have taken the time to consider the consequences of this important decision.
If you do not agree to these Terms, you may not use the Sites or participate in the Services. But if you do agree, please read on!
2. Privacy and Data Retention
ABAKadabra retains seven (7) days of automated data backups. Backups do not include uploaded images or student drawings. If you request that ABAKadabra retrieve data from ABAKadabra’s backup, it will be at your cost and expense. ABAKadabra will not charge you for the retrieval of any of your data whereby the loss, deletion, or distortion of such data arises or results from any negligent act(s) or omission(s) of ABAKadabra.
3. Changes to the Terms
4. Third-party Relationships
5. Description of Services
The ABAKadabra Service is a cloud-based, real-time, data-driven ABA clinical platform where clinicians, counselors, or other types of educational instructors ("Subscribers") can create their own Applied Behavior Analysis (ABA) plans, exercises, or other content for their student(s) or purchase existing Content Packs and Add-on Modules (defined below), collectively referred to as "Enhancements", from other organizations or individuals ("Content Authors").
"Content Packs" are pre-built treatment program content that can be purchased within the ABAKadabra platform in the ABAKadabra marketplace. "Add-on Modules" are additional functionality that can be activated on top of the base functionality of the ABAKadabra platform.
We reserve the right to refuse to provide the Services to any person for any reason and/or to discontinue the Service in whole or in part at any time, with or without prior notice.
6. Access and Use of Services
(b) Accounts and Security. You may never use another's account, and you may not provide another person with the username and password to access your account. You are fully responsible for any and all activities that occur under your password or account, including compliance with applicable federal, state, or local laws, including but not limited to Privacy Laws (defined below), and it is your responsibility to ensure that your password remains confidential and secure. You agree to (a) immediately notify ABAKadabra of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. ABAKadabra will not be liable for any loss or damage arising from your failure to comply with this Section.
(c) Mobile Services. The Service may include certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service and the Sites from a mobile device and (iii) the ability to access and participate in Services through an application downloaded and installed on a mobile device (collectively, the "Mobile Services"). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
(d) Cancellation. You may cancel your subscription to any fee-based Service at any time by contacting customer support at email@example.com. However, unless determined by ABAKadabra in its sole discretion, all payments are final and there are no refunds offered for the early termination of any period for which you have paid a subscription fee (including renewal periods). Local law may vary this policy, in which case your rights under these Terms may differ from those stated herein. You are responsible for management of your information including but not limited to back-up and restoration of data and, in the event that you cancel Services, exporting data before Services are terminated. ABAKadabra is not responsible for the loss of your data or for the back-up or restoration of your data regardless of whether the data is maintained on our servers or yours. However, ABAKadabra may retain customer data for a up to sixty (60) days, from which data may be restored in the event that your Services are terminated involuntarily due to your default under these Terms and the default has been cured to the satisfaction of ABAKadabra under these Terms.
(e) Customer Support. ABAKadabra endeavors to provide you with reasonable customer support and maintenance during standard business hours for any fee-based Services via e-mail to firstname.lastname@example.org. ABAKadabra does not guarantee that the support will be available at a certain time or that ABAKadabra will respond within a certain time or that it will have the ability to resolve all problems in connection therewith.
6. Fees and Payment Terms
ABAKadabra charges monthly subscription fees based on: (1) the number of active students (with a minimum of one (1) student), prorated to the day based on usage; (2) the amount of current storage, prorated to the hour; and (3) active Add-on Modules per student, prorated to the day based on usage. All subscriptions are automatically renewed monthly and charged on the first day of the month. Content Packs are one-time purchases made per organization or per student, depending on the specific Content Pack, and fees for Content Packs are charged on the monthly bill following the month during which the purchase was made. ABAKadabra reserves the right to change its prices and to institute new charges at any time, upon posting such new pricing on the Sites, which may also be sent by email. Use of the Service by you following such notification constitutes your acceptance of any new or increased charges.
Monthly subscriptions are auto-renewing, meaning that once you sign up for a monthly subscription, your credit card will be charged the renewal fee at the beginning of the period for which you have registered for a subsequent renewal period. The renewal fee charged to your account will be the fee then in effect for the period for which you are renewing. Renewal notices will not be sent to you if you elect a monthly subscription. If you fail to cancel your account prior to your monthly renewal date, then your credit card will be charged the full amount for the renewal period. ABAKadabra may change subscription fees at any time and from time to time. You will be notified of any price changes either via email or through a pop-up window on the Sites. Continued use of the Service following a price change constitutes your acceptance of the applicable price change. If you object to any price changes adopted by ABAKadabra, then your sole remedy is to discontinue use of the Service and cancel your account prior to your credit card being charged a recurring subscription fee at the changed rate. The provisions of this paragraph are subject to all applicable local laws.
You agree to pay all applicable fees related to your use of the Services. All fees are based on Services purchased, regardless of actual usage. We may suspend or terminate your paid account and/or access to our paid Services if your payment is late and/or your offered payment method cannot be processed. All fees are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes, tariffs or other amounts attributable to your use of the Services (collectively, “Taxes”). You are solely responsible for the payment of any such Taxes. In the event we are required to pay Taxes on your behalf, you shall promptly reimburse us for all amounts paid. Taxes or any additional charges, if applicable, will be itemized in your order confirmation email.
Terms of payment are within our sole discretion and unless otherwise agreed to by ABAKadabra, in writing, we must receive payment before our acceptance of an order. Payments for items through our Sites or for our Services are done through third party platforms, which allow you to use a credit or debit card for purchases. Therefore, when making purchases you are subject to that third-party's terms of service and privacy policies.
By purchasing Services, you represent and warrant that (i) the payment information you supply for purchases is true, correct, and complete, (ii) you are duly authorized to use that payment for the purchase, (iii) charges incurred by you will be honored by your bank or credit card company, and (iv) you will pay all fees associated with your purchase, including all applicable taxes, if any. In the event your payment is returned for any reason, you will automatically be charged any bank fee or third-party payment processor fee imposed on ABAKadabra, in addition to our own processing fee, as determined by ABAKadabra. If this occurs, we retain the right to collect any current and past due balances at any time after the returned payment.
ABAKadabra reserves the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel any purchases. You agree to update your Account and other information, including your email address and credit card information, promptly so that we can complete your transactions and contact you as needed.
Any payments made through the Sites and/or for Services are final and non-refundable.
9. Your Content
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials (collectively the "Content") in using the Services, whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated. This means that you, and not ABAKadabra, is entirely responsible for all Content that you upload, download, post, email, transmit, or otherwise make available or use via the Services and that such Content must comply with all applicable laws and regulations and these Terms of Service.
In addition, if you provide to us any feedback, ideas, proposals, suggestions or other materials ("Feedback"), whether related to the Services or otherwise, such Feedback will be deemed Content, and you hereby acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place ABAKadabra under any fiduciary or other obligation.
With respect to Content you submit or make available for inclusion on publicly accessible areas of the Sites or Services, if any, you grant ABAKadabra and all users of the Service a worldwide, royalty-free and non-exclusive, perpetual, irrevocable and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other works in any format or medium now known or later developed.
For Content made publicly available through the Services, you represent and warrant that:
- You have the right to grant such license and make such Content available to ABAKadabra and our licensees, including any users of the Services, and your provision thereof through and in connection with the Services, are complete and accurate, and are not fraudulent, tortious or otherwise in violation of any applicable law or any right of any third party;
- None of the Content you provide contains any data or information that is confidential, non-public, owned by or otherwise proprietary to a third party, not in the public domain or otherwise restricted or protected from use by any individual, entity or other party for any use by a third party;
- You further irrevocably waive any "moral rights" or other rights with respect to attribution of authorship or integrity of materials regarding the Content that you may have under any applicable law under any legal theory; and
- Neither the delivery to nor use by ABAKadabra or our licensees, including users of the Service, of such content shall violate or infringe the rights of any third party.
You understand that ABAKadabra may or may not pre-screen any content you use when engaging in the Services, including content made available by or obtained from third parties, and that we have the right (but not the obligation) to remove such content from the Sites or our Services that we determine may create a liability or damage ABAKadabra. It is solely your responsibility to evaluate, and accept all risk associated with, the use of any third-party content, including your reliance on the accuracy, timeliness, or completeness of such content. You further understand that since we do not have control nor verify the content you use when engaging in the Services, it is not possible for us to guarantee the content displayed on our Sites or any part of our Services.
You acknowledge that ABAKadabra may establish general practices and limits concerning use of the Services, including without limitation the maximum number of days that your Content will be retained by the Services, the maximum size of any or all Content files, the maximum disk space that will be allotted on our servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Services in a given period of time, and any other conditions of the Services. Except with respect to Protected Health Information ("PHI") as defined by the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), you agree that we have no responsibility or liability for the deletion or failure to store any Content, messages, and other communications or other materials or Content maintained or transmitted by the Services.
10. Acceptable and Prohibited Uses - All Users
You may use the Sites and the Services only for lawful purposes and in accordance with these Terms of Service. In order to use the Services, you must be at least 18 years old and you must provide truthful, accurate, and complete information.
You may not, nor may you permit, any third party directly or indirectly to:
- Use the Sites in any way that violates any applicable federal, state, local, or international law or regulation;
- Export the Services of the Sites, which may be subject to export restrictions imposed by U.S. law, including U.S. Export Administration Regulations (15 C.F.R. Chapter VII);
- Use the Sites for the purpose of exploiting, harming, or attempting to exploit or harm, minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise;
- Transmit, procure, or send any advertising or promotional material including any "junk mail," "chain letter," "spam," or any other similar solicitation;
- Impersonate or attempt to impersonate ABAKadabra, a ABAKadabra employee, another user, or any other person or entity (including, without limitation, by using any email addresses associated with any of the forgoing);
- Engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Sites, or which, as determined by us, may harm ABAKadabra or users of the Sites or expose them to liability;
- Perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other customers, or impose an unreasonable or disproportionately large load on our infrastructure;
- Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful;
- Use any robot, spider, or other automatic device, process, or means to access the Sites for any purpose, including monitoring or copying any of the material on the Sites;
- Copy, monitor, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way the material, information or Services on the Sites for any purpose without our prior written consent;
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Sites, the server on which the Sites are stored, or any server, computer, or database connected to the Sites;
- Attack the Sites via a denial-of-service attack or distributed denial-of-service attack;
- Transfer any rights granted to you under these Terms;
- Otherwise use the Services except as expressly allowed under these Terms and applicable Policies.
If we reasonably suspect that your use of the Sites has been for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, and any of your transactions, with the applicable law enforcement or governmental agency and to terminate or suspend your access to all or part of the Sites.
11. Specific Rules for Subscribers
Subscriber will not copy Services or Enhancements for purposes of providing the Services, reselling the Enhancements, or for interfering with another Content Author's offerings on ABAKadabra. Subscriber may not copy "Per Student" Enhancements purchased for one student to another student for which the Enhancement was not purchased.
ABAKadabra reserves the right to delete or suspend your account if you violate any of our rules, or at any time and for any reason.
12. Specific Rules for Content Authors
(A) CONTENT AUTHOR HEREBY REPRESENTS AND WARRANTS THAT IT HAS NOT MISREPRESENTED, FALSIFIED, EXAGGERATED, OR OTHERWISE EMBELLISHED ITS PROFESSIONAL CREDENTIALS OR CERTIFICATIONS, SKILLS AND EXPERTISE TO ABAKADABRA, AND IT SHALL NOT MISREPRESENT, FALSIFY, EXAGGERATE, OR OTHERWISE EMBELLISH ITS PROFESSIONAL CREDENTIALS OR CERTIFICATIONS, SKILLS OR EXPERTISE TO ANY PERSON OR ENTITY ASSOCIATED WITH ITS ENHANCEMENTS. Content Author hereby represents and warrants to ABAKadabra that all Enhancements provided pursuant to these Terms shall be and remain in compliance with all applicable federal, state and local laws and regulations. Content Author further agrees to maintain all applicable federal, state and local licenses, certifications, permits, and clearances without restriction, required to sell and maintain the Enhancement. Content Author shall promptly correct any non-conforming or defective Enhancement at no additional cost to ABAKadabra or Subscriber, or at ABAKadabra's sole option, Content Author shall promptly conform the Enhancement or refund the amount paid for such Enhancement. Content Author represents and warrants that the Enhancement does not incorporate or infringe upon any third-party copyright, patent, trademark, service mark, trade name, trade secret, idea, process, know-how, development, invention, or any other form of intellectual property, and that Content Author has full right, title, and authority to use, reproduce, store, distribute, depict, exhibit, publicly display and perform, publish, broadcast, edit, create derivative works from and otherwise exploit, license or sublicense contents of the Enhancement.
(B) Payment to Content Author
- Content Authors are entitled to payment from the Subscriber once the Enhancement is delivered to the Subscriber.
- Content Authors and Subscribers agree that ABAKadabra's sole responsibility is to process payments and pay out Content Authors according to these Terms. ABAKadabra is not party to any transaction between any Content Author and Subscriber and cannot be held responsible for any issues arising from any such transaction.
- Content Authors have 30 days from the time at which a payment was or should have been made to report any discrepancies. After 30 days, you have waived your right to dispute any payment.
- Content Authors are responsible for all income, sales, and other taxes associated with the fees they earn. Content Authors will receive the appropriate tax forms, such as a 1099 or 1099k, from either ABAKadabra or one of its payment partners. ABAKadabra reserves the right to withhold any payment until it has received all tax identification information it requires to satisfy its obligations.
- ABAKadabra reserves the right to withhold or cancel payments to Content Author if it deems, in its sole judgement and absolute discretion, that the Content Author engaged in behavior that violated any part of these Terms.
(C) No Affiliation. As a Content Author, you shall always represent yourself as being independent from ABAKadabra, and no law, agreement or other arrangement that has the effect of conferring benefits upon officers or employees of ABAKadabra shall be applicable to you in connection with the Services rendered pursuant to these Terms. Nothing herein shall be construed to create any partnership, joint venture, independent contractor, or agency relationship of any kind between you and ABAKadabra.
(D) Conflict of Interest and Non-disparagement. Content Author represents and warrants that it has no business, professional, personal, or other interest that would conflict with its performance of obligations under these Terms. If any such actual or potential conflict of interest arises, Content Author shall immediately inform ABAKadabra. If, in the reasonable judgment of ABAKadabra, such conflict poses a material conflict with the performance of Content Author's obligations hereunder, ABAKadabra may terminate the Enhancement immediately on written notice to Subscriber and Content Author. Content Author shall not directly or indirectly, make any statement, oral or written, or perform any act or omission which disparages ABAKadabra, its employees or partners, or which is or could be detrimental in any material respect to the reputation or goodwill of ABAKadabra. Content Author shall not make any public statements through any means, including without limitation through any social media platform, regarding the Enhancement, the Subscriber or ABAKadabra, without the express prior written approval of ABAKadabra.
13. Ownership of Enhancements
Subject to these Terms, Content Author hereby grants to Subscriber a non-exclusive, non-transferable, non-sublicensable license in the United States (the "Territory"), solely to reproduce, display, transmit, and distribute the Enhancement, for purposes of providing behavior, skill, educational, or other similar treatments to the subject of the purchase (either student or organization) for one-time purchases, such as Content Packs, or during the active term for specific subscription-based purchases, such as Add-on Modules, subject to fulfillment of applicable payment terms in Section 7. Content Author reserves all rights not expressly granted to Subscriber under these Terms. Content Pack configuration data is owned by the Content Author of the Content Pack. Add-on Modules proccesses and procedures are owned by the Content Author of the Add-on Module. No use by Content Author of the Enhancement in any medium or manner will be deemed to interfere with the limited permissions made to Subscriber by Content Author herein. Subscriber shall ensure that its use of the Enhancement is marked with the appropriate copyright notices specified by Content Author in a reasonably prominent position in the order and manner provided by Content Author. Subscriber shall abide by the copyright laws and what are considered to be sound practices for copyright notice provisions in the Territory. Subscriber shall not use any copyright notices that conflict with, confuse, or negate the notices Content Author provides and requires hereunder. Subscriber shall not translate, recast, edit, alter, modify, or create any derivative works of the Enhancement. Except for the licenses expressly granted to Subscriber these Terms, Subscriber acknowledges that all right, title, and interest in and to the Enhancement are owned by Content Author. If Subscriber acquires any rights in the Enhancement by operation of law or otherwise, Subscriber hereby irrevocably assigns such rights to Content Author without further action by either party.
14. Confidential Information
Subscriber and Content Author (either, a "Receiving Party") may have access to proprietary, private or otherwise confidential information ("Confidential Information") of Subscriber, Content Author, or ABAKadabra (each, a "Disclosing Party"). Confidential Information shall mean all non-public information or material that is disclosed during the purchase or use of an Enhancement or whose proprietary or confidential content should be reasonably obvious from the context of the material, including, without limitation, financial or other sensitive information relating to the Subscriber, Content Author, or ABAKadabra, whether or not labeled as "Confidential" and regardless of the method of transmission or the media in which the same is stored or recorded ("Confidential Information"). Confidential Information does not include any information, or any portion of any document based thereon, that: (i) was known to the Receiving Party at the time of its disclosure by the Disclosing Party; (ii) was or becomes generally available to the public other than as a result of a disclosure by the Receiving Party; (iii) has already been or is hereafter independently acquired or developed by the Receiving Party without violating this Agreement; or (iv) was or becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, provided that such source is not, to Receiving Party's knowledge, subject to a confidentiality obligation with respect to such information. Except as permitted herein, the Receiving Party will not at any time or in any manner, either directly or indirectly, use for the personal benefit of the Receiving Party, or divulge, disclose, or communicate in any manner any Confidential Information; however, the Receiving Party may disclose all or any part of the Confidential Information to its employees and agents on a need-to-know basis. If the Receiving Party is compelled to disclose all or any part of the Confidential Information in any judicial or administrative proceeding, it may do so without liability under this Agreement so long as it uses reasonable efforts to obtain assurances that confidential treatment will be accorded to such information and provides prior written notice to the Disclosing Party. Receiving Party agrees that unauthorized disclosure of Confidential Information may cause irreparable injury to a Disclosing Party and consents to the award of equitable relief to prevent or halt such disclosure.
15. ABAKadabra's Intellectual Property Rights
Please note, in these Terms, the phrase "intellectual property" describes the ownership rights or other protections over ABAKadabra's creative and intellectual efforts. We describe what this means in more detail below.
The Sites and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof), are owned by ABAKadabra, its licensors, or other providers or such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
These Terms permit the use of the Sites for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Sites, expect as follows:
- Your computer may temporarily store copies of such materials incidental to your accessing and viewing those materials.
- You may store files that are automatically cached by your Web browser for display enhancement purposes.
- You may print or download one copy of a reasonable number of pages of the Sites for your own personal, non-commercial use and not for further reproduction, publication, or distribution.
- If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end-user license agreement for such applications.
- If we provide social media features with certain content, you may take such actions as are enabled by such features.
You must not:
- Modify copies of any materials from this site.
- Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
- Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.
You must not access or use for any commercial purposes any part of the Sites or any Services or materials available through the Sites. If you wish to make any use of material on the Sites other than as set out in this section, please address your request to: email@example.com.
If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Sites in breach of the Terms, your right to use the Sites will end immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Sites or any content on the Sites is transferred to you, and all rights not expressly granted are reserved by ABAKadabra. Any use of the Sites not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws.
16. ABAKadabra's Trademarks
The ABAKadabra name and all related names, logos, product and service names, designs, and slogans are trademarks of ABAKadabra or its affiliates or licensors. You must not use such marks without our prior written permission. All other names, logos, product and service names, designs, and slogans on the Sites are the trademarks of their respective owners.
17. Copyright Complaints
ABAKadabra respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied on the Sites in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify us of your infringement claim in accordance with the procedure set forth below.
(A) ABAKadabra will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to ABAKadabra at firstname.lastname@example.org (Subject line: “DMCA Takedown Request”). You may also contact us by mail at:
Attn: Copyright Complaints
4445 Corporation Lane, Suite 264
Virginia Beach ,VA 23462
To be effective, the notification must be in writing and contain the following information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- A description of the copyrighted work or other intellectual property that you claim has been infringed;
- A description of where the material that you claim is infringing is located on the Services, with enough detail that we may find it on the Services;
- Your address, telephone number, and email address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to upload and use the content in your Content, you may send a written counter-notice containing the following information ABAKadabra at email@example.com
- Your physical or electronic signature;
- Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- A statement that you have a good-faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- Your name, address, telephone number, and email address, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If we receive a counter-notice, ABAKadabra will send a copy of the counter-notice to the original complaining party, informing that person that it may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten to fourteen (10 to 14) business days or more after receipt of the counter-notice, at our sole discretion.
(C) Repeat Infringer Policy
In accordance with the DMCA and other applicable law, ABAKadabra has adopted a policy of terminating, in appropriate circumstances and at our sole discretion, users who are deemed to be repeat infringers. We may also at our sole discretion limit or terminate access to the Services of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
18. Service Level Agreement
ABAKadabra shall make commercially reasonable efforts to maintain availability of any fee-based Services 99% of the time ("Uptime Requirement"). Unavailability is measured over a calendar month ("Availability Period") and is based on total outage time incurred by you. Unavailability is deemed to have occurred from the time unavailability is reported to ABAKadabra and ABAKadabra confirms that the affected Service is available to transmit and receive data to the time that the Service is restored. Unavailability shall not be deemed to occur as a result of maintenance activities during a scheduled maintenance period; beta periods; or force majeure events.
At your request, for each Availability Period where ABAKadabra does not meet its Uptime Requirement, ABAKadabra may provide Service Credits to be applied against future payments. The Service Credits are calculated as a percentage of the total charges paid by you for core ABAKadabra Services (not including charges for Enhancements) during the Availability Period in which the Monthly Uptime Percentage fell within the ranges set forth in the table below.
|Monthly Uptime Percentage||Service Credit Percentage|
|Less than 99% but greater than or equal to 90%||10%|
|Less than 90% but greater than or equal to 50%||50%|
|Less than 50%||100%|
If you believe the Uptime Requirement has not been met, in order to receive Service Credits you must submit a support request to firstname.lastname@example.org no later than thirty (30) days after the end of the applicable month in which the outage occurred. The email must include dates, times, and descriptions of each instance of downtime, and any supporting calculations. All properly submitted credit requests will be verified against ABAKadabra’s logs and system records.
To be eligible for a credit hereunder, you must maintain a paid subscription in good standing for a minimum of twelve (12) consecutive months. You are not eligible to receive credit for any month in which you breached these Terms or failed to meet your payment obligations to ABAKadabra. Credits will be applied to future services only, and any unused credits will be non-refundable upon termination of the Services.
19. Your Responsibilities if You Break the Terms
You agree that if you violate any of the Terms, or any liabilities are incurred arising out of your use of this Sites or participation in the Services, you will be responsible for the costs and expenses that we or our officers, directors, employees, agents and suppliers incur as a result of the breach, including reasonable legal fees (if applicable). You will remain liable if someone else uses your shopping account or personal information unless you can prove that such use was fraudulent.
20. Sites Modification, Suspension, or Cancellation
Any of the material on the Sites may be out of date at any given time and we are under no obligation to update such material. However, we reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, any part of the Sites or Services, including processing of our products, with or without notice to you. You agree that ABAKadabra shall not be liable to you or any third party for any modification, suspension, or discontinuance of the Sites or Services. In addition, we reserve the right to terminate your access to the Sites or Services for any reason, and to take any other actions that we, in our sole discretion, believe to be in the interest of the Sites, our Services, ABAKadabra, and our users and clients as a whole.
21. Reliance on Information Posted
The information presented on or through the Sites is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. 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 Sites or by anyone who may be informed of any of its contents.
22. Medical Disclaimers; Provider-Patient Relations
Any content available on or through the Sites is for informational and educational purposes only and is not a substitute for the professional judgment of a health care professional in diagnosing and treating patients. Neither the content nor any other service offered by or through the Sites is intended to be substituted for medical diagnosis or treatment. ABAKadabra does not recommend or endorse any specific products, procedures, opinions, programs, uses or other information that may be mentioned on the Sites. You are responsible for verifying the accuracy of any information you send or receive through the Sites, including any of your personal health information, data, or records.
Use of the Sites and/or any information or content that is included on the Sites is not intended to and will not create any medical provider-patient relationship of any kind. ABAKadabra shall not be liable in any way to you for any decision you make or any actions that occur in connection with the use of the Sites in the treatment of subjects. The procedures, products, services and devices discussed and/or advertised and included within the Services available on the Sites are not applicable to all individuals, students, subjects, or all clinical situations. We make no claims as to the effectiveness of any such procedures, products, services or devices.
23. Compliance with Privacy Laws
Some of the information you submit or that is created through your use of the Services may constitute PHI as defined by HIPAA. Although ABAKadabra is not a "covered entity" as defined by HIPAA, your provider maybe a covered entity and may be subject to certain requirements under HIPAA. ABAKadabra may be considered a "business associate" of a provider under HIPAA, and as a result, as and to the extent that ABAKadabra is in fact a business associate of a covered entity under HIPAA, our use and disclosure of PHI will be limited to the extent required by HIPAA. With respect to its operation of the Sites, and to the extent required by (i) HIPAA and the regulations promulgated thereunder, and (ii) the Health Information Technology for Economic and Clinical Health Act (HITECH) and any regulations promulgated thereunder (collectively, the "Privacy Laws"), ABAKadabra will fully comply with the Privacy Laws and maintain the confidentiality of any Protected Health Information (as defined by the Privacy Laws) ("PHI") transmitted or made available through the functionality of the Sites, and in accordance with such compliance, ABAKadabra will, among other things:
(a) Not use or further disclose PHI other than as permitted or required by the Privacy Laws and/or as you have agreed otherwise;
(b) Use reasonable and appropriate safeguards to prevent the unauthorized use or disclosure of PHI;
(c) Require that any agent, including a subcontractor to whom ABAKadabra provides PHI in any format received from, or created or received within or through the Sites, agrees in writing to comply with the Privacy Laws; and
(d) Mitigate, to the extent practicable, the harmful effect of any unauthorized use or disclosure of PHI.
You understand and agree that these Terms may be amended from time to time if necessary to comply with the Privacy Laws. The requirements of this Section will survive the termination of your use of the Sites.
When you use the Sites to upload and transmit PHI, you agree that, to the extent applicable, you shall comply with all applicable State and Federal laws including, but not limited to, the Privacy Laws. You represent and warrant that you will, at all times, comply with all laws directly or indirectly applicable to You that may now or hereafter govern the gathering, use, transmission, processing, receipt, reporting, disclosure, maintenance, and storage of PHI. You agree that ABAKadabra, and all other persons or entities involved in the operation of the Sites, have the right to monitor, retrieve, store, review and use PHI, if applicable, in connection with the transmission of any PHI.
To the extent permissible under the Privacy Laws and any other applicable federal and state laws, you hereby grant to ABAKadabra a perpetual, unlimited license to use the data and information that is compiled or passes through the Sites that specifically relates to you, your treatments, programs or use, and any related information (collectively, the "Client Data"), in a de-identified format as defined under the Privacy Laws for data benchmarking, sharing, warehousing, resource utilization and similar data analysis services; provided, however, that ABAKadabra shall comply with the Privacy Laws in connection with any such actions.
ABAKADABRA CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR YOUR USE OR MISUSE OF PHI OR OTHER INFORMATION TRANSMITTED, MONITORED, STORED OR RECEIVED WHILE USING THE SITES. ABAKADABRA RESERVES THE RIGHT TO AMEND OR DELETE ANY UPLOADED CONTENT (ALONG WITH THE RIGHT TO REVOKE YOUR MEMBERSHIP OR RESTRICT YOUR ACCESS TO THE SITES) THAT IN ABAKADABRA'S SOLE DISCRETION VIOLATES ANY PROVISIONS OF THIS SECTION OR THE TERMS IN GENERAL.
24. Age Restrictions
You must be at least 18 years old to use the Sites or participate in the Services. If you are under 18 years old, you must have permission from a parent or legal guardian to use the Sites or the Services. We have no intention of collecting personal information from individuals under the age of 18.
Our Sites is not intended for children under 13 years of age. No one under age 13 may provide any information to or on the Sites. We do not knowingly collect personal information from children under 13 without verified parental or guardian consent. If you are under 13, you are not permitted to use our Sites or any related Services and should not provide us with any Personal Information about yourself, including your name, address, telephone number, email address, or any screen name or user name you may use, unless we have your verified consent from your parent or guardian.
If we learn we have collected or received Personal Information from a child under 13 without verified parental or guardian consent, we will delete that information in accordance with the Children's Online Privacy Protection Act. If you believe we might have any information from or about a child under 13, please contact us at email@example.com and we will take reasonable steps to ensure that such information is deleted from our records.
25. Geographic Restrictions
ABAKadabra's Services and Sites are controlled and offered from our facilities based in the United States. We provide the Sites for use only by persons located in the United States. We make no representations or claims that the Services or Sites are accessible or appropriate outside of the United States. Access may not be legal by certain persons or in certain countries. If you access the Services or Sites from outside the United States, you do so on your own initiative and are subject to the laws and regulations of that country.
26. Warranties and Limits on Liability
(A) Linking to the Sites
You may link to the Sites through your own website, blog, or social media pages, provided you do so in a way that is fair and legal and does not damage ABAKadabra's reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent.
This Sites may provide certain social media features that enable you to:
- Link from your own or certain third-party websites to certain content on the Sites.
- Send emails or other communications with certain content, or links to certain content, on the Sites.
- Cause limited portions of content on the Sites to be displayed or appear to be displayed on your own or certain third-party websites.
You may use these features solely as they are provided by us and solely with respect to the content they are displayed with and otherwise in accordance with any additional Terms we provide with respect to such features. Subject to the foregoing, you must not:
- Establish a link from any website that is not owned by you.
- Cause the Sites or portions of it to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking.
- Link to any part of the Sites other than the homepage.
- Otherwise take any action with respect to the materials on the Sites that is inconsistent with any provision of these Terms.
You agree to cooperate with us in stopping any unauthorized framing or linking immediately. We reserve the right to withdraw linking permission without notice. We may disable all or any social media features and any links at any time without notice in our sole discretion.
(B) Links from the Sites
(C) Sites and Social Media Content
We make no representations concerning any content posted by users through the Services or on our social media pages. ABAKadabra is not responsible for the accuracy, copyright compliance, legality, or decency of content posted by users that you accessed through the Services. You release us from all liability relating to that content.
ABAKADABRA WORKS HARD TO PROVIDE YOU THE BEST POSSIBLE SITES AND SERVICES, BUT WE ARE NOT PERFECT AND SOMETIMES THINGS CAN GO WRONG. YOU UNDERSTAND THAT THE SITES AND THE SERVICES ARE PROVIDED "AS IS" AND WITHOUT ANY KIND OF WARRANTY (EXPRESS OR IMPLIED). WE ARE EXPRESSLY DISCLAIMING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES IMPLIED BY A COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
WE DO NOT GUARANTEE THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) THE SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL MATERIALS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR EXPECTATIONS. YOU USE THE SERVICES SOLELY AT YOUR OWN RISK. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
ABAKADABRA EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, IN CONNECTION WITH THE ENHANCEMENTS SOLD BY CONTENT AUTHORS. CONTENT AUTHORS ARE NOT EMPLOYEES, REPRESENTATIVES, AGENTS OR VOLUNTEERS OF ABAKADABRA, AND ABAKADABRA MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING ANY ENHANCEMENTS SOLD BY CONTENT AUTHORS. SUBSCRIBERS ARE ENCOURAGED TO PERFORM THEIR OWN DUE DILIGENCE IN VERIFYING THE TERMS AND CONDITIONS OF AN ENHANCEMENT AND DETERMINING WHETHER TO PURCHASE AN ENHANCEMENT. ANY INFORMATION PROVIDED BY ABAKADABRA TO SUBSCRIBER OR CONTENT AUTHOR REGARDING AN ENHANCEMENT IS DEEMED TO BE RELIABLE, BUT NOT GUARANTEED.
(E) Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL ABAKADABRA BE LIABLE TO YOU FOR ANY LOST PROFITS OR REVENUES, LOSS OF DATA, PERSONAL INJURY, PROPERTY DAMAGE, OR EMOTIONAL DISTRESS RELATED TO OR RESULTING FROM ANY ASPECT OF OUR SERVICES OR THE SITES, OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF (i) THE SERVICES, (ii) THE SITES, (iii) THESE TERMS, (iv) SITE CONTENT OR THIRD-PARTY CONTENT, OR (v) ANY OTHER ASPECT OF OUR SERVICES OR SITES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (BREACH OF CONTRACT, A BREACH OF WARRANTY, NEGLIGENCE, PRODUCTS LIABILITY, STRICT LIABILITY, OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO INDIVIDUAL MEMBER, OFFICER, OFFICIAL, EMPLOYEE, VOLUNTEER, AGENT OR AFFILIATE OF ABAKADABRA SHALL BE PERSONALLY LIABLE HEREUNDER, AND NO RECOURSE SHALL BE HELD AGAINST ANY SUCH PARTY'S ASSETS.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
In no event shall our total liability to you for all damages (regardless of whether the claim for such damages is based in contract, tort, strict liability, or otherwise) exceed the total of any purchase price or fee you paid associated with the Services. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
(F) Indemnification and Release
You voluntarily and irrevocably agree to indemnify, defend, and hold harmless, at your expense, ABAKadabra from any and all liability present, past and in the future, losses, claims, demands, actions or rights of action, costs or expenses (including, without limitation, reasonable attorney fees and costs), or damages related to, arising out of, or incidental to Sites, the Services, or the Terms, any incident occurring when providing the Services, any act or omission of ABAKadabra related to the Sites, the Services, the Terms, or any of your acts, errors, omissions, or default related to the Sites, the Services, or the Terms, including but not limited property repair, property damages or losses, or any other damages in respect of death, injury to person or property, or any other loss or damage to any member, employee, or contractor of ABAKadabra. You acknowledge and agree that ABAKadabra shall not be responsible for damages, direct or consequential, resulting from any injury, annoyance or disturbance under the Sites, the Services, or the Terms.
YOU FURTHER HEREBY AGREE TO RELEASE, WAIVE, DISCHARGE AND FURTHER COVENANT THAT YOU SHALL NOT SUE ABAKADABRA, THE MEMBERS, DIRECTORS, AND EMPLOYEES OF ABAKADABRA OR ITS AFFILIATES (COLLECTIVELY FOR THESE TERMS, THE "RELEASEES"), FROM AND FOR ANY LIABILITY RESULTING FROM ANY PERSONAL INJURY, ACCIDENT OR ILLNESS (INCLUDING DEATH), AND/OR PROPERTY LOSS, HOWEVER CAUSED, ARISING FROM, OR IN ANY WAY RELATED TO THE SERVICES.
(A) Governing Law and Jurisdiction
By using the Sites or our Services, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the Commonwealth of Virginia, without regard to principles of conflict of laws, will govern these Terms and any dispute of any sort that might arise between you and ABAKadabra.
Any dispute or claim relating in any way to your use of the Sites or your use of the Services will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify.
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA's Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879. The Federal Arbitration Act (“FAA”) and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under these Terms or the enforcement thereof, then that issue shall be resolved under the laws of the Commonwealth of Virginia.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the provisions of these Terms as a court would. The prevailing party in arbitration will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law.
To begin an arbitration proceeding, you must provide ABAKadabra with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration - Consumer Arbitration Rules available at www.adr.org or by calling the AAA at 1-800-778-7879). Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules.
If for any reason a claim proceeds in court rather than in arbitration you waive any right to a jury trial.
You additionally agree that you may bring claims against us only on an individual basis and not as a plaintiff or class user in any purported class or representative action or proceeding. Unless we agree otherwise, the decision-maker may not consolidate or join more than one person's or party's claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the decision-maker may award relief only to the extent necessary to provide relief necessitated by that party's individual claims. Any relief awarded cannot affect other users.
ABAKadabra is based in the Commonwealth of Virginia, so any legal action against ABAKadabra related to the Sites or the Services must be filed and take place in a location in Virginia closet to ABAKadabra, LLC's principal office, including all actions and proceedings under the AAA Rules.
(D) Limitation on Time to Initiate a Dispute
Any cause of action or claim you may have arising out of or relating to these Terms or the Sites must be commenced within one (1) year after the cause of action accrued, otherwise, such cause of action or claim is permanently barred.
28. No Waiver; Severability
No waiver by ABAKadabra of any term or condition set out in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of ABAKadabra to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
If any provision of these Terms or part thereof is found to be invalid or unenforceable, the invalidity or unenforceability of such provision or part will not affect any other provision or the remainder of the provision in which such invalid or unenforceable part is contained, which will remain in full force and effect.
The Terms, and any rights you may have under them, may not be assigned or transferred by you. ABAKadabra may freely assign the Terms.
All headings used in the Terms are intended for convenience of reference only and shall not affect the construction or interpretation of the Terms. Words of any gender used in the Terms shall be held to include any other gender, and words in the singular shall be held to include the plural when the sense requires.
31. Entire Agreement
We value your comments and opinions. If you have questions, comments or a complaint about these Terms, you may send a written notice to us by email to firstname.lastname@example.org or mail:
Attn: Terms of Service
4445 Corporation Lane, Suite 264
Virginia Beach ,VA 23462