PLEASE READ THESE TERMS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY NRBY, INC. (“NRBY”). BY MUTUALLY EXECUTING AN ORDER FORM (AS DEFINED BELOW) WITH NRBY WHICH REFERENCE THESE TERMS, YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH APPLICABLE ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. “ORDER FORM” MEANS THE COVER PAGE TO THIS AGREEMENT OR THE LATEST AMENDED VERSION THEREOF, WHICH SHALL BE IN WRITING AND SIGNED BY BOTH PARTIES AND SHALL SPECIFY THE SERVICES (AS DEFINED BELOW).
- Order Forms; Access to the Service. Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. For each Order Form, subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) Nrby grants Customer a nonexclusive, limited, personal, nonsublicensable, nontransferable right and license to internally access and use the Nrby product(s) and/or service(s) specified in such Order Form and the related Mobile Applications (as defined below) (collectively, the “Service,” or “Services”) during the applicable Order Form Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with Nrby’s applicable official user documentation for such Service (the “Documentation”) and in accordance with restrictions on use cases and number of users provided in an applicable Order Form. For the avoidance of doubt, Nrby will make the Mobile Application available through an App Store by email invitation (as defined below). Nrby may also provide support services as set forth in Exhibit A, configuration services, and other professional services (collectively, the “Professional Services”).
- Implementation. Upon payment of any applicable fees set forth in each Order Form, Nrby agrees to use reasonable commercial efforts to provide standard implementation assistance for the Service only if and to the extent such assistance is set forth on such Order Form (“Implementation Assistance”). If Nrby provides Implementation Assistance in excess of any agreed-upon hours estimate, or if Nrby otherwise provides additional services beyond those agreed in an Order Form, Customer will pay Nrby at its then-current hourly rates for consultation.
- Support; Service Levels. Subject to Customer’s payment of all applicable fees, Nrby will provide support, maintenance, and uptime for each Service in accordance with (i) the support package selected by Customer on the applicable Order Form (if any) and (ii) Nrby’s then-current standard Support and Availability Policy (the current version of which is attached hereto as Exhibit A).
- Service Updates. From time to time, Nrby may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that Nrby shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Nrby may make improvements and modifications to the Services at any time in its sole discretion; provided that Nrby shall use commercially reasonable efforts to give Customer reasonable prior notice of any major changes.
- Ownership; Feedback. As between the parties, Nrby retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Nrby for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may (but is not obligated to) provide suggestions, comments or other feedback to Nrby with respect to the Service (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Nrby notwithstanding anything else. Nrby acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Customer shall, and hereby does, grant to Nrby a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Nrby’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
- Fees; Payment. Customer shall pay Nrby fees for the Service as set forth in each Order Form (“Fees”). Unless otherwise specified in an Order Form, all Fees shall be invoiced annually in advance and all invoices issued under this Agreement are payable in U.S. dollars within fifteen (15) days from date of the receipt of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with Service (excluding taxes based on Nrby’s net income). All Fees paid are non-refundable and are not subject to set-off. If Customer exceeds any user or usage limitations set forth on an Order Form, then (i) Nrby shall invoice Customer for such additional users or usage at the overage rates set forth on the Order Form (or if no overage rates are set forth on the Order Form, at Nrby’s then-current standard overage rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the Order Form Initial Term or then-current Order Form Renewal Term (as applicable), and (ii) if such Order Form Term renews (in accordance with the section entitled “Term; Termination”, below, such renewal shall include the additional fees for such excess users and usage.
- Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not allow any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with any Nrby product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (viii) bypass any measures Nrby may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to uploading Customer Data (as defined below) onto the Service. Customer (a) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights. Customer shall be liable for any breach, compromise or violation, by Customer employees, agents, consultants, or independent contractors (each a “Representative”) of such obligations in this Section 7 and otherwise of this Agreement.
- Customer Data. For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not Nrby, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer represents and warrants that it has all rights necessary to provide the Customer Data to Nrby as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy). Nrby shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data. Nrby is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Service unless such access is due to Nrby’s gross negligence or willful misconduct. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, even if Customer did not authorize such use. To the extent that the Customer Data includes any personal information, (i) Nrby will process, retain, use, and disclose such personal information only as necessary to provide the Services hereunder and as otherwise permitted under this Agreement, which constitutes a business purpose, (ii) Nrby agrees not to sell such personal data, to retain, use, or disclose such personal data for any commercial purpose other than the foregoing purposes, or to retain, use, or disclose such personal data outside of the scope of this Agreement. Nrby understands its obligations under applicable data protection laws and will comply with them. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Nrby may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Service to Customer and (B) generating Aggregated Anonymous Data (as defined below), and (ii) freely use, retain and make available Aggregated Anonymous Data for Nrby’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Nrby’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Nrby in connection with Customer’s use of the Service, but only in aggregate, anonymized form which can in no way be linked specifically to Customer.
- Third Party Services. Customer acknowledges and agrees that the Service may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”), including without limitation through integrations or connectors to such Third Party Services that are provided by Nrby. Nrby is not responsible for the operation of any Third Party Services nor the availability or operation of the Service to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services (including any Customer Data or other information relating thereto) and for complying with any applicable terms or conditions thereof. Nrby does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
- Additional Terms for Mobile Applications. Customer acknowledges and agrees that the availability of Nrby’s mobile application (the “Mobile Application”) is dependent on the third party stores from which Customer or its Representative download the application, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which Customer or its Representative must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. Customer agrees to comply with, and Customer’s license to use Nrby’s application is conditioned upon Customer’s compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of this Agreement, the more restrictive or conflicting terms and conditions in this Agreement apply. This Agreement applies to Customer’s use of all the Services, including Nrby’s iOS applications (the “Application”) available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the Application: (a) Customer and Nrby acknowledge that this Agreement is concluded between Customer and Nrby only, and not with Apple, and that Apple is not responsible for the Application; (b) the Application is licensed to Customer on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for Customer’s internal business purposes, subject to all the terms and conditions of this Agreement as they are applicable to the Services; (c) Customer and its Representatives will only use the Application in connection with an Apple device that it owns or controls; (d) Customer acknowledges and agrees that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application; (e) in the event of any failure of the Application to conform to any applicable warranty, including those implied by law, Customer may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to Customer will be to refund to Customer the purchase price, if any, of the Application; (f) Customer acknowledges and agrees that Nrby, and not Apple, is responsible for addressing any claims Customer or any third party may have in relation to the Application; (g) Customer acknowledges and agrees that, in the event of any third-party claim that the Application or Customer’s possession and use of the Application infringes that third party’s intellectual property rights, Nrby, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim; (h) Customer represents and warrants that it is not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that Customer is not listed on any U.S. Government list of prohibited or restricted parties; (i) both Customer and Nrby acknowledge and agree that, in Customer’s use of the Application or any Representative’s use of the Application, Customer will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and (j) both Customer and Nrby acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement, and that upon Customer’s acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Customer as the third-party beneficiary hereof. If any Representative is required to download and use a Mobile Application, Customer agrees and acknowledges that Customer shall be liable for any all liabilities, claims, and expenses incurred by such Representative in connection with its use of such Mobile Application, including without limitation of any App Store terms of service.
- Term; Termination. This Agreement shall commence upon the date of the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. For each Order Form, unless otherwise specified therein, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on such Order Form (the “Order Form Initial Term”), and (y) following the Order Form Initial Term, shall automatically renew for additional successive periods of equal duration to the Order Form Initial Term (each, a “Order Form Renewal Term”) unless either party notifies the other party of such party’s intention not to renew no later than ninety (90) days prior to the expiration of the Order Form Initial Term or then-current Order Form Renewal Term, as applicable. Except as otherwise expressly provided in the applicable Order Form, upon renewal of the Order Form, the Fees shall subject to an annual increase from the applicable fees for the last annual period of the expiring Order Form. Such annual increase shall be agreed to by both parties by email. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Nrby may suspend or limit Customer’s access to or use of the Service if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Nrby’s ability to provide access to the Service to other customers; provided that in the case of subsection (ii): (a) Nrby shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Nrby shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) Nrby shall reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including,
without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability. For clarity, any services provided by Nrby to Customer, including the data export set out above, and any assistance in exporting the Customer Data, shall be billable at Nrby’s standard rates then in effect.
- Indemnification. Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (i) in the case of Customer as Indemnitor, that the Customer Data or Customer’s use of the Service infringes, violates, or misappropriates any third party intellectual property or proprietary right, including any rights of privacy, or violates any applicable law, or (B) in the case of Nrby as Indemnitor, the Service infringes, violates, or misappropriates any third party intellectual property or proprietary right, or (ii) the Service (in the case of Nrby as Indemnitor), infringes, violates, or misappropriates any third party intellectual property or proprietary right. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (x) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (y) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (z) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of Nrby do not apply with respect to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Nrby (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Nrby, (iv) combined with other products, processes or materials not provided by Nrby (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Service is not strictly in accordance herewith.
- Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
- Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND FOR CUSTOMER’S BREACH OF SECTION 6, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICE, PROFESSIONAL SERVICES, OR SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO NRBY HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
- Miscellaneous. This Agreement represents the entire agreement between Customer and Nrby with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Nrby with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of New Hampshire, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in Concord, New Hampshire. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, no modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing, and no waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Nrby may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.
Nrby Support and Availability Policy
This Support and Availability Policy (the “Policy”) sets forth the policies and procedures with respect to the Services provided by Nrby to Customer pursuant to the Agreement.
Nrby will use commercially reasonable efforts to meet the following service level commitments, which shall commence on the date the service is first made available to Customer for production use. Nrby will provide Customer with a written report of its compliance with the Service Levels within ten (10) days of the end of each month.
- Service Availability: The Service shall be available 99.4% of the time, 24 hours a day, seven days per week, except for Scheduled Maintenance (Service Level #1) as well as any downtime or performance issues resulting from third party connections, services or utilities or other reason beyond Nrby’s control (including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Nrby employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Nrby’s possession or reasonable control, and denial of service attacks, the the acts or omissions of Customer, its employees, contractors, or agents). (the “Service Availability”). “Scheduled Maintenance” is any maintenance outage that occurs between 9:00 pm and 10:00 pm ET on Tuesdays, and any other maintenance outage of which Nrby notifies Customer at least seventy-two (72) hours in advance and shall not exceed four (4) hours per month. “Response Time” will be measured from the time Nrby receives notification in accordance with Section 5 of this Policy of an incident from Customer during Nrby’s business hours, until Nrby provides acknowledgement of incident back to Customer.
- Service Availability Monitoring: Nrby must use industry standard monitoring solutions to monitor the Services, networks, systems, and availability on a 24x7x365 basis.
- Downtime Reporting: In the event the Service is not available for access by Customer, response time issues or overall system issues, Nrby will commence work immediately following Nrby’s receipt of Customer notification of a service disruption during Nrby’s business hours. Nrby will use commercially reasonable efforts to analyze the situation, determine root cause, and implement corrective measures to restore availability of the Service.
- System Issues: Nrby is responsible for identifying system issues. However, in the case where the Customer identifies system issues, the Customer will immediately notify in accordance with Section 5 of this Policy Nrby and recommend to Nrby an appropriate Severity Level designation. Nrby shall validate Customer’s Severity Level designation (as described below) or notify Customer of a proposed change in Severity Level designation with justification for the proposal. In the event of a conflict regarding the appropriate Severity Level designation each party shall promptly escalate such conflict to its management team for resolution through consultation between the parties’ management. Nrby shall use commercially reasonable efforts to provide support in accordance with its Severity Level designation while such discussions take place.
- Notifications: All notifications shall be provided to Nrby either at Nrby’s email address (email@example.com) or by contacting Nrby’s customer service phone number (1-877-258-2107).