Please note that if you are using the Service pursuant to a separate enterprise agreement or another binding written agreement between you (or your organization) and Nrby, then that written agreement exclusively governs your use of the Service unless it expressly provides otherwise.
1. SERVICE DESCRIPTION/GRANT OF LIMITED LICENSE USAGE RIGHTS/OWNERSHIP OF SERVICE
2. RESTRICTIONS ON USE, PROHIBITED USES
USER represents and warrants that (a) he or she will access the Service solely in connection with USER’S exercise of the limited usage license rights granted hereunder; (b) USER’S Service account will not be transferred to, or used on behalf of, another party or entity (c) USER will not remove any copyright, proprietary rights or other notice included in or on any portion of the Service, computer code or documentation; (d) USER will not distribute, transmit, display, disclose, divulge, reveal, report, publish or transfer the Service to any third party or reproduce or create derivative works based upon the Service or any portion thereof; (e) neither USER nor any of its employees, subcontractors or other personnel will attempt to reverse engineer, reverse assemble, disassemble, decompile, or otherwise attempt to discover the source code of Nrby software; (f) USER will not use the Service in a manner that is prohibited by any law or regulation. USER acknowledges that it may be temporarily disconnected from or logged off of the Service, either due to a system failure or because of USER inactivity and that Nrby shall have no liability in connection with any such disconnection or log off. USER is responsible for all charges associated with connecting to the Service.
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from a child under 13 without obtaining verifiable consent from that child’s parent or guardian (“Parental Consent”), except for the limited amount of personally identifiable information we need to collect in order to obtain Parental Consent (“Required Information”). Until we have received Parental Consent, we will only use Required Information for the purpose of obtaining Parental Consent. If you are a child under 13, please do not attempt to send any personal information about yourself to us before we obtain Parental Consent, except for the Required Information in the context of the Parental Consent process. If you believe that a child under 13 has provided us with personal information (beyond the Required Information) without our obtaining Parental Consent, please contact us at firstname.lastname@example.org.
3. USER RESPONSIBILITIES
Any information or content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such content originated, and USER accesses all such information and content at USER’s own risk, and Nrby is not liable for any errors or omissions in that information or content or for any damages or loss USER might suffer in connection with it. Nrby cannot control and has no duty to take any action regarding how USER may interpret and use the content on the Service or what actions USER may take as a result of having been exposed to the content, and USER hereby releases us from all liability for USER having acquired or not acquired content through the Services. We can’t guarantee the identity of any users with whom USER interacts in using the Services and are not responsible for which users gain access to the Services.
USER is responsible for all content USER contributes, in any manner, to the Services, and USER represents and warrants that it has all rights necessary to do so, in the manner in which USER contributes it. USER will keep all registration information accurate and current. USER is responsible for all its activity in connection with the Services.
Nrby has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that you interact with through the Services. In addition, Nrby will not and cannot monitor, verify, censor or edit the content of any third-party site or service. By using the Services, USER releases and holds us harmless from any and all liability arising from your use of any third-party website or service.
USER’s interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between USER and such organizations and/or individuals. USER should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. USER agrees that Nrby shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between participants on this site, or between users and any third party, USER agrees that USER is under no obligation to become involved. In the event that USER has a dispute with one or more other users, you release Nrby, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If USER is a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”
4. USER CONTENT
For all User Content, USER hereby grants Nrby a license to translate, modify (for technical purposes, for example making sure your content is viewable on an iPhone as well as a computer) and reproduce and otherwise act with respect to such User Contents, in each case to enable us to operate the Services, as described in more detail below. This is a license only – USER’s ownership of User Content is not affected.
If USER shares User Content publicly on the Services and/or in a manner that more than just USER can view, or if USER provides us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services (each of the foregoing, “Public User Content”), then USER grants Nrby the licenses above, as well as a license to display, perform, and distribute your Public User Content for the purpose of making that Public User Content accessible to other users and providing the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public User Content in connection with the Services and/or otherwise in connection with Nrby’s business. Also, USER grants all other users of the Services a license to access that Public User Content, and to use and exercise all rights in it, as permitted by the functionality of the Services.
USER agrees that the licenses you grant are royalty-free, perpetual, sublicenseable, irrevocable, and worldwide. Finally, USER understands and agrees that Nrby, in performing the required technical steps to provide the Services to our users (including USER), may need to make changes User Content to conform and adapt that User Content to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
We respect others’ intellectual property rights, and we reserve the right to delete or disable content alleged to be infringing, and to terminate the accounts of repeat alleged infringers. To review our complete Copyright Dispute Policy and learn how to report potentially infringing content, click here. To learn more about the Digital Millennium Copyright Act, click here.
USER hereby agrees to indemnify and hold harmless Nrby and its employees, licensors, independent contractors, providers, subsidiaries and affiliates, from and against any and all liability and costs (including, without limitation, Nrby attorneys’ fees and costs) incurred by any of them in connection with any direct or third-party claim arising out of any breach by USER of the representations and warranties of this Agreement or any use or inability to use the Service by USER. USER shall cooperate as fully as reasonably required in the defense of any claim.
6. PAID VERSION PAYMENTS
USER agrees to pay Nrby the fees, in the amounts and at the times specified in the selected Plan.
6.2 Billing and Credit Card Information.
In order to set up an account with Nrby, USER must provide Nrby with accurate and complete billing information including legal name, address, telephone number, and may be required to provide a valid credit card. USER’s card will never be charged without its authorization. By submitting such credit card information, USER gives Nrby permission to charge all fees incurred through its account to the designated credit card. Nrby reserves the right to terminate this Agreement in accordance with Section 9.2 hereto if USER does not provide a valid credit card for the payment of fees hereunder.
6.3 Payment Terms.
The Services are billed in advance on a monthly or annual basis, depending upon which payment plan is chosen by USER.
Monthly Billing. The Company will provide customers with an itemized invoice each month, using Personal Information collected through your account settings. Customer is responsible for ensuring that Personal Information is accurate. Customer shall pay all invoices within ten (10) days of receipt of such invoice. Should Customer fail to pay any invoice within ten (10) days of receipt, Nrby may, in its sole and absolute discretion, terminate the Services in accordance with Section 9.
Annual Billing. The Company will provide customers with an itemized invoice prior to contract commencement using Personal Information collected through your account settings. Customer is responsible for ensuring that Personal Information is accurate. Customer shall pay all invoices within ten (10) days of receipt of such invoice. Should Customer fail to pay any invoice within ten (10) days of receipt, Nrby may, in its sole and absolute discretion, terminate the Services in accordance with Section 9.
Nrby will not provide refunds or credits in the case of cancellations, downgrades, or when there are unused portions of the Services on an open account. For any Services upgrade, the additional fee for the Services upgrade for the remainder of the current term (i.e. either month or year) will automatically be charged to the USER’s credit card at the time of the upgrade. All future recurring charges for the Services will follow the monthly or annual billing cycle (as chosen by the USER).
All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes). You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, excluding taxes based upon Nrby’s net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed.
This Agreement renews automatically for a one (1) year period at the expiration of the initial agreement term, unless cancelled in accordance with the termination provisions of this Agreement (“SUBSEQUENT TERM”). Each Subsequent Term renews automatically for a one (1) year period upon its expiration, unless cancelled in accordance with the termination provisions of this Agreement. Notification of cancellation for subsequent subscription terms must be received ninety (90) days prior to the end of then current term.
7. LIMITED WARRANTY AND DISCLAIMERS
7.1 Paid Version Limited Warranty.
Nrby warrants that it will provide the Paid Version in a manner consistent with general industry standards reasonably applicable to the provision thereof. Notwithstanding the foregoing, the Paid Version may be temporarily unavailable, for example, when deemed reasonably necessary or prudent by Nrby to repair, maintain or upgrade the Paid Version or for causes beyond Nrby’s reasonable control. Nrby will notify USER at least 48 hours in advance of any known planned Paid Version-related outages.
7.2 Warranty Disclaimer.
TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 7.1 HEREOF, THE SERVICE INCLUDING ALL CONTENT, USAGE OF THE Nrby SERVICE, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION ACCESSED BY ANY MEANS THEREOF IS PROVIDED “AS IS”, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ,ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. Nrby MAKES NO WARRANTIES AS TO THE RELIABILITY, SECURITY, COMPLETENESS, OR ACCURACY OR AVAILABILITY OF THE SERVICES OR ANY INFORMATION, CONTENT OR MATERIALS IN MADE AVAILABLE THROUGH THE SERVICES, OR AS TO ITS THE POSSIBLE USES OF ANY OF THE FOREGOING, EVEN IF Nrby IS MADE AWARE OF ANY PARTICULAR USE(S). THE PRODUCT IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS (INCLUDING WITHOUT LIMITATION, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS) AND, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CUSTOMER HEREBY ASSUMES AND ACCEPTS ALL LIABILITY RELATED TO ANY SUCH USE.
7.3 Certain Liability Exclusions.
Nrby SHALL NOT BE LIABLE FOR ANY USE OF OR RELIANCE ON THE SERVICE UNDER ANY CIRCUMSTANCES, OR FOR ANY INTERRUPTION, UNAVAILABILITY OF OR ERROR IN THE SERVICE OR ANY INFORMATION MADE AVAILABLE THROUGH THE SERVICE, EVEN IF CAUSED BY, Nrby’S NEGLIGENCE AND OR FAILURE TO ISSUE ALERTS OR NOTICES. Nrby WILL NOT BE LIABLE FOR ANY FAILURE OF OR DELAY IN PERFORMANCE DIRECTLY OR INDIRECTLY CAUSED BY ACTS OF THE USER, ITS AGENTS, EMPLOYEES, OR SUBCONTRACTORS, CAUSES BEYOND THE CONTROL OF Nrby, INCLUDING BUT NOT LIMITED TO ACTS OF GOD AND GOVERNMENTS AND FAILURES OF THE INTERNET OR THE COMPONENTS THEREOF. USER AGREES TO ASSUME ALL OF THE RISKS IN USING THE Nrby SERVICE, WHETHER KNOWN OR UNKNOWN, INCLUDING WITHOUT LIMITATION, THE RISK THAT THE SERVICE OR THE INFORMATION MADE AVAILABLE THROUGH THE SERVICE WILL BE INTERRUPTED, UNAVAILABLE, INACCURATE OR INCOMPLETE. Nrby MAKES NO WARRANTY, REPRESENTATION, OR GUARANTEE THAT USER WILL BE CONTACTED BY ANY COMMERCIAL PARTY OR GOVERNMENTAL AUTHORITY OR THAT IF CONTACTED, THE INFORMATION PROVIDED WILL BE ACCURATE. Nrby RESERVES THE SOLE RIGHT TO MODIFY OR DISCONTINUE THE SERVICE AT ANY TIME WITH OR WITHOUT NOTICE TO USER. Nrby WILL NOT BE LIABLE TO USER OR ANY THIRD PARTY SHOULD Nrby EXERCISE SUCH RIGHT. USER ACKNOWLEDGES THAT Nrby HAS NO CONTROL OVER THE CONDUCT OF ANY COMMERCIAL PARTY OR GOVERNMENTAL AUTHORITY OR OTHER THIRD PARTIES OR FOR THE ACCURACY OF THEIR NOTIFICATIONS. Nrby SHALL NOT BE LIABLE FOR THE ACCURACY OR DELIVERY TIME OR CONTENT OF NOTIFICATIONS.
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY (OR ITS SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, OR (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL.
IN NO EVENT SHALL EITHER PARTY (OR ITS SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT FOR DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) AMOUNTS PAID AND PAYABLE TO Nrby HEREUNDER WITH RESPECT TO THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, AND (II) $100.
THE LIMITATIONS AND EXCLUSIONS SET FORTH IN SECTIONS 8.1 AND 8.2 SHALL APPLY REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), EVEN IF THE PARTY AGAINST WHOM DAMAGES ARE SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY, NOTHING IN THIS SECTION 8 SHALL LIMIT A PARTY’S LIABILITY FOR DAMAGES ARISING FROM PERSONAL BODILY INJURY (INCLUDING DEATH), GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, ANY BREACHES OF SECTION 2 (RESTRICTIONS ON USE; PROHIBITED USES) OR SECTION 6.1 (FEES), OR ANY EXCLUSION OR LIMITATION OF LIABILITY THAT IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW.
9.1 Term and Effects of Termination.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation USER has to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes.
9.2 Termination of the Paid Version.
With respect to the Paid Version, this Agreement may be earlier terminated by either party, in whole or in part, (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 10 days (5 days in the case of non-payment) after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
10. DISPUTE RESOLUTION
11. APPLE TERMS AND CONDITIONS
(a) Both USER and Nrby acknowledge that the Terms are concluded between USER and Nrby only, and not with Apple, and that Apple is not responsible for the Application or the Content;
(b) The Application is licensed to USER on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for USER’s private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
(c) USER will only use the Application in connection with an Apple device that USER owns or control;
(d) USER 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, USER may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to USER will be to refund to USER the purchase price, if any, of the Application;
(f) USER acknowledges and agrees that Nrby, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
(g) USER acknowledge and agree that, in the event of any third-party claim that the Application or your 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) USER represent and warrant 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 you are not listed on any U.S. Government list of prohibited or restricted parties;
(i) Both USER and Nrby acknowledge and agree that, in USER’s use of the Application, USER will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
(j) Both USER and Nrby acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against USER as the third-party beneficiary hereof.
You warrant, represent and agree that you will not use the Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, false, obscene, libelous, or otherwise objectionable; (iv) involves commercial activities and/or sales without Nrby’s prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including without limitation any employee or representative of Nrby; or (vi) contains a virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program. Nrby reserves the right to remove any user-generated content (“Content”) from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if Nrby is concerned that you may have breached the immediately preceding sentence), or for no reason at all. You, not Nrby, remain solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services, and you warrant that you possess all rights necessary to provide such content to Nrby and to grant Nrby the rights to use such information in connection with the Services and as otherwise provided herein.
You are responsible for all of your activity in connection with the Services. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your right to access or use the Services. You may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any other user of the Services. Use of the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material (including material that may be considered threatening or obscene), or engage in any kind of illegal activity is expressly prohibited. You will not run Maillist, Listserv, any form of auto-responder, or “spam” on the Services, or any processes that run or are activated while you are not logged on to the Services, or that otherwise interfere with the proper working of or place an unreasonable load on the Services’ infrastructure. Further, the use of manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any portion of the Services is strictly prohibited. You will not upload or store amounts of data in excess of your Plan, nor will you create, edit, or delete an excessive number of SmartPins, as defined in your Plan. You will not enable other users to access your Plan. You will not engage in excessive downloads, registrations, or invitations when using the Services. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of the Services. You will be responsible for withholding, filing, and reporting all taxes, duties and other governmental assessments associated with your activity in connection with the Services.
Your use of the Services shall not unreasonably interfere with use of the Services by other users. All Plans have an associated monthly usage limit as specified on the pricing page of the Nrby website https://www.nrby.com. Monthly limits are calculated based on calendar months and are based on the date of account activation. Once an account reaches its monthly usage limit You will be notified and given the option of (a) upgrading to a plan with a higher usage limit, or (b) paying for extra usage at the then current overage rate for your account (unless otherwise previously mutually agreed upon).
You understand and agree that Nrby shall have the sole right to decide whether you are in violation of any of the restrictions set forth in this Section, and shall have sole discretion regarding the course of action to take in connection therewith.
© Copyright 2020 Nrby, Inc. All rights reserved.