LAST UPDATED: September 23, 2016
Please read these Terms carefully before accessing or using the Services. By accessing or using the Services, you agree to be bound by these Terms. If you do not agree to these Terms, you must not access or use the Services.
Obalon may revise these Terms from time to time in its sole discretion. If Obalon revises these Terms, Obalon will post such revised Terms to its website, and such revised Terms shall be effective immediately upon such posting. By accessing or using the Services after Obalon posts such revised Terms, you agree to be bound by such revised Terms.
The Services are available to users who are 13 years of age or older. By accessing or using the Services, you represent and warrant that you are 13 years of age or older.
You may use the Services for personal, non-commercial use only.
The Services are available for use only by persons located in the United States. Obalon makes no claims that the Services or any of the Services Content (as described below) are accessible or appropriate outside of the United States. Access to the Services may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you do so on your own risk and are responsible for compliance with applicable laws.
Obalon may terminate or suspend your access to or use of all or part of the Services at any time, for any or no reason, including, without limitation, for any violation of these Terms.
Any clinical information residing on the Services is intended solely for your educational and informational purposes. Such information is not intended as a substitute for a consultation with your physician, and should not be used to diagnose or treat a health problem without consulting your physician. In no event shall Obalon be liable for any decision made or action taken in reliance on the information contained on the Services, and you shall not directly or indirectly make any claim against Obalon, its affiliates, its licensors, its service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns (the “Obalon Related Parties“) with respect thereto.
Access to the Services
Subject to the terms and conditions of these Terms, you may access and use the Services for your personal, noncommercial use.
Obalon reserves the right to withdraw or amend the Services or any portion thereof, in its sole discretion without notice. Obalon shall not be liable if for any reason all or any portion of the Services are unavailable at any time or for any period. From time to time, Obalon may restrict access to some or all of the Services.
To access the Services, you may be asked to provide certain registration details or other information. It is a condition of your access to or use of the Services that all information you provide to Obalon is correct, current, and complete.
If you choose, or are provided with, a user name, password, or any login or access credentials (your “Credentials“), you must treat such information as confidential, and you must not disclose your Credentials to any other individual or entity. You acknowledge that your account is personal to you and agree not to provide your Credentials to any other person. You agree to notify Obalon immediately of any unauthorized use of your Credentials or any other breach of security. You agree to ensure that you exit from your account at the end of each session.
Except as otherwise expressly stated, all content, features, and functionality included in or accessible through the Services (including, without limitation, all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) (collectively, the “Services Content“) are owned by Obalon, its licensors, or other third-party content providers, and such Services Content is protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. All rights not expressly granted in these Terms of Services are expressly reserved.
“Obalon”, Obalon’s logos, and all related names, logos, product and service names, designs, and slogans are trademarks of Obalon or its affiliates or licensors. You may not use any of the foregoing without Obalon’s prior written permission. All other names, logos, product and service names, designs, and slogans on the Services are the trademarks of their respective owners.
Except as otherwise expressly stated herein, you may not alter, modify, copy, distribute (for compensation or otherwise), transmit, publicly display, publicly perform, reproduce, reuse, post, republish, license, frame, download, store for subsequent use, create derivative works of, transfer, or sell any of the Services Content, in whole or in part, without Obalon’s prior written authorization. Any unauthorized use of the Services Content is a breach of these Terms and may violate United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. If you use any of the Services Content without authorization, or beyond the scope of your authorization, your right to access and use the Services shall immediately terminate.
If you use features in the Services that allow you to post, submit, publish, display, or transmit to Obalon, other users, or third parties any content or materials (collectively, “User Contributions“) on or through the Services, you hereby grant the Obalon Related Parties a perpetual, worldwide, transferable, sublicenseable, fully-paid up, royalty-free license to use, copy, reproduce, modify, publicly perform, publicly display, distribute, create derivative works of, and otherwise disclose to third parties User Contributions for any purpose.
You represent and warrant that you own or control all rights in and to the User Contributions and have the right to grant the license granted above.
You represent, warrant, and covenant that your User Contributions comply, and will comply, with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, your User Contributions must not:
- Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable;
- Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
- Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person;
- Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could subject Obalon to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms;
- Be likely to deceive any person;
- Promote any illegal activity, or advocate, promote, or assist any unlawful act;
- Impersonate any person, or misrepresent your identity or affiliation with any person or organization;
- Involve commercial activities or sales, such as contests, sweepstakes or other sales promotions, bartering, or advertising; or
- Give the impression that they originate from or are endorsed by Obalon or any other person or entity, if this is not the case.
Monitoring and Enforcement
- Remove or refuse to post any User Contributions for any or no reason in Obalon’s sole discretion;
- Take any action with respect to any User Contribution that Obalon deems necessary or appropriate, in Obalon’s sole discretion;
- Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including such third party’s intellectual property rights or right to privacy; and
- Without limiting the foregoing, Obalon may cooperate with any law enforcement authorities or court order requesting or directing Obalon to disclose the identity or other information of anyone accessing or using the Services.
Copyright and DMCA Policy
Obalon takes claims of copyright infringement seriously. Obalon will respond to notices of alleged copyright infringement if such notices comply with applicable law. If you believe any materials accessible through the Services infringe your copyright, you may request removal of such materials from the Services by submitting written notification to Obalon as described in the “Contact Obalon” section below.
Notices that fail to comply with all of the requirements of Section 512(c)(3) of the Digital Millennium Copyright Act (17 U.S.C. § 512; the “DMCA”) may not be honored by Obalon.
If you knowingly and materially misrepresent that material on the Services is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
Obalon will terminate these Terms and your access to the Services if you repeatedly post material that infringes on third parties’ copyrights.
Links to and from the Services
Links from the Services
If the Services contain links to websites and resources provided by third parties (including, without limitation, links contained in advertisements, including banner advertisements, and sponsored links), such links are provided for your convenience only. Obalon has no control over the contents of such third-party websites or resources, and accepts no responsibility for such third-party websites or resources or for any loss or damage that may arise from your use of them. If you decide to access any third-party websites or resources linked to from the Services, you do so entirely at your own risk and subject to the terms and conditions of use for such websites or resources.
Linking to the Services
You may link to the homepage of the Services, provided you do so in a way that is fair and legal and does not damage Obalon’s reputation. You may not establish a link to the Services in such a way as to suggest any form of association, approval, or endorsement on Obalon’s part. You agree to cooperate with Obalon in preventing or ceasing any unauthorized framing or linking. Obalon reserves the right to withdraw linking permission without notice.
Disclaimer of Warranties
Services Provided “As Is”
Your use of the Services is at your own risk. EXCEPT AS PROHIBITED BY APPLICABLE LAW, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SERVICES (AND YOUR ACCESS TO OR USE OF THE SERVICES) IS OR WILL BE SECURE, PRIVATE, ERROR-FREE, UNINTERRUPTED, NON-INFRINGING, COMPLIANT WITH LAW, FREE OF HARMFUL OR OFFENSIVE CONTENT OR COMPONENTS, OR INTEROPERABLE WITH ANY THIRD-PARTY DEVICE, CONTENT, OR SERVICE. OBALON EXPRESSLY DISCLAIMS LIABILITY FOR CLAIMS RELATED TO ANY OF THE FOREGOING CIRCUMSTANCES. YOU ASSUME ALL RESPONSIBILITY FOR THE ACCURACY, APPROPRIATENESS, AND LEGALITY OF ANY INFORMATION YOU SUPPLY OBALON.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Non-Reliance on Information
The information presented on or through the Services is made available solely for general information purposes. Obalon does not represent, warrant, or covenant to the accuracy, completeness, or usefulness of such information. Any reliance you place on such information is strictly at your own risk. Obalon disclaims all liability or responsibility arising from your reliance on such materials.
The Services may include content provided by third parties, including materials provided by other users, third-party licensors, syndicators, aggregators, or reporting services. All statements or opinions expressed in such content are solely the opinions and the responsibility of the third party providing such materials. Such materials do not necessarily reflect the opinion of Obalon. Obalon is not responsible or liable to you or any third party for the content or accuracy of any materials provided by any third parties.
Limitation of Liability; Indemnification
Limitation of Liability
THE OBALON RELATED PARTIES SHALL NOT BE LIABLE FOR ANY ERRORS IN THE SERVICES OR ANY SERVICES CONTENT, OR FOR ANY ACTION TAKEN IN RELIANCE THEREON. FURTHERMORE, THE OBALON RELATED PARTIES SHALL NOT BE LIABLE TO YOU FOR ANY INTERCEPTION OF ONLINE COMMUNICATIONS, SOFTWARE OR HARDWARE PROBLEMS (INCLUDING, WITHOUT LIMITATION, VIRUSES, LOSS OF DATA, OR COMPATIBILITY CONFLICTS), OR OTHER CONSEQUENCE BEYOND THE REASONABLE CONTROL OF OBALON. ANY LIABILITY OF THE OBALON RELATED PARTIES TO YOU FOR DAMAGES, INJURIES, LOSSES, AND CAUSES OF ACTION, OF ANY KIND OR NATURE, WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE, EITHER JOINTLY OR SEVERALLY, SHALL BE STRICTLY LIMITED TO THE AGGREGATE DOLLAR AMOUNT PAID BY YOU TO OBALON IN YOUR MOST RECENT USE OF THE SERVICES IMMEDIATELY PRIOR TO THE CLAIMED INJURY, LOSS, OR DAMAGE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF CERTAIN LIABILITIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You agree to defend, indemnify, and hold harmless the Obalon Related Parties from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms or your use of the Services, including, without limitation, your User Contributions and any use of the Services Content, in each case other than as expressly authorized in these Terms.
You and Obalon agree that any disputes between you and Obalon will be resolved through binding and final arbitration instead of through court proceedings. All controversies, claims, counterclaims, or other disputes arising between you and Obalon relating to these Terms or the Service, (each a “Claim“) shall be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association (“AAA Rules“). The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. You and Obalon agree that the arbitration will be kept confidential and that the existence of the proceeding and all elements of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged, and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies. You and Obalon hereby waive any right to a jury trial of any Claim.
Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules. If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Obalon will pay as much of the administrative costs and arbitrator’s fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
This arbitration agreement does not preclude you or Obalon from seeking action by federal, state, or local government agencies. You and Obalon also have the right to bring qualifying claims in small claims court. In addition, you and Obalon retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with these Terms, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms.
Neither you nor Obalon may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or Obalon’s individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
This “Arbitration” section of these Terms will survive the termination of your relationship with Obalon.
Obalon’s affiliates and third-party providers are third-party beneficiaries to these Terms (and may enforce any of the provisions and protections hereof, including, without limitation, the foregoing arbitration provision).
THIS “ARBITRATION” SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR OBALON WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
Governing Law and Jurisdiction
By accessing or using the Services, you agree that all matters relating to your access to and use of the Services (including non-contractual disputes or claims) shall be governed by the laws of the State of California, without regard to the conflict of laws principles thereof. You and Obalon specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods. Any legal action or proceeding arising out of or related to your access to or use of the Service or these Terms, except where such legal action or proceeding is submitted to arbitration as described in the “Arbitration” section above, shall be instituted exclusively in the applicable state or federal courts of the State of California, and you agree and hereby submit to the exclusive personal jurisdiction and venue thereof.
Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR ACCESS TO OR USE OF THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. AFTER SUCH PERIOD, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
No waiver by Obalon of any term or condition set forth 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 Obalon to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
If any of the terms or conditions of these Terms are determined to be void, unlawful, or unenforceable, the validity and enforceability of the remaining terms and conditions shall not thereby be affected or impaired.
These Terms constitute the sole and entire agreement between you and Obalon with respect to the Services and supersede all prior and contemporaneous understandings, agreements, representations, warranties, and covenants, both written and oral, with respect to the Services.
If you have any questions or concerns about these Terms, please email Obalon at firstname.lastname@example.org.
You may also contact Obalon Customer Service at the following address:
5421 Avenida Encinas
Carlsbad, CA 92008-4410
All notices of copyright infringement must be sent to Obalon’s copyright agent at email@example.com.
In accordance with the Online Copyright Infringement Liability Limitation Act of the DMCA, such notices must include the following information:
- Your physical or electronic signature;
- Identification of the copyrighted work you believe to have been infringed, or if such notice involves multiple works on the Services, a representative list of such works;
- Identification of the material you believe to be infringing in a sufficiently precise manner to allow Obalon to locate such material;
- Adequate information by which Obalon can contact you (including your name, physical address, telephone number, and email address);
- A statement that you have a good faith belief that use of such material is not authorized by the copyright owner, its agent, or the law;
- A statement that the information in the written notice is accurate; and
- A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.