Terms of Service and Use
Neirbi Analytics, LLC
EFFECTIVE: January 1, 2017
Terms of Service and Use
By using any of the services, information or tools provided by Neirbi Analytics, LLC User is agreeing to the Terms of Service and Use (“Agreement”) below.
Neirbi Analytics, LLC, (“Neirbi Analytics, LLC”, “we”, “us” or “our”), and governs your access to and use of Neirbi Analytics, LLC platform, our website located at www.Neirbi.com (the “Site”) and related (collectively, the “Services”).
If User is accessing and using the Services by or on behalf of a company or other organization, the individual accepting this Agreement represents and warrants that he or she has the authority to bind that company or other organization to this Agreement, and “you” and “your” will refer to that company or other organization. Use of and access to the Services is conditioned upon compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. By checking the box next to ‘I agree to the Neirbi Analytics, LLC Terms of Service’, User indicates that User understands and agrees to be bound by these terms of service.
Neirbi may modify this Agreement (including any policies Neirbi references), in our sole discretion and at any time, by posting a revised version on the Site or by otherwise notifying User in accordance with Section 10.6. It is important that User review this Agreement whenever Neirbi modifies it because continued use of the Service including the modifications to the Agreement indicate your continued acceptance. If User doesn’t agree to be bound by the modified Agreement, then User must not use Neirbi Analytics’ Services. Because our Services are evolving over time Neirbi may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Use of Services
In order to access and use the Service, User will need to establish an account (“Account”). Neirbi will establish accounts and credentials provided to authorized users of the account. The user is responsible for maintaining the confidentiality of the Account, including the login and passwords for all users who have been authorized to access the Account (“Authorized Users”). The user agrees to notify Neirbi Analytics, LLC if any passwords are lost, stolen, or disclosed to an unauthorized third party, or otherwise may have been compromised. The user is responsible for all activities that occur under your Account, including those carried out by any Authorized Users associated with the user Account. User will promptly notify Neirbi Analytics, LLC of any unauthorized use of or access to the Services.
2.2 Rights to Use the Services
Subject to user compliance with the terms and conditions of this Agreement, Neirbi will make the Services available to User and your Authorized Users during the subscription term (Term). Neirbi hereby grants User and Authorized Users a limited, non-exclusive, non-transferable, revocable right to access and use the Services during the subscription term or designated term, solely for your internal business use. Your rights in the Services will be limited to those expressly granted in this Section 2.2. Neirbi Analytics, LLC and its licensors reserve all rights and licenses in and to the Services not expressly granted under this Agreement.
User will not: (i) sell, resell, license, sublicense, distribute, rent or lease the Services, whether for a fee or not; (ii) copy the Services in whole or in part; (iii) access the Services in order to build a competitive product or service; (iv) reverse engineer any part of the Services; (v) use the Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement or applicable documentation; (vi) attempt to gain unauthorized access to any part of the Services or its related systems or networks; (vii) transmit a virus to, overload, flood, spam, or paralyze the Services or take any action or inaction which interferes with the integrity of the Services; (viii) attempt to access or search the Services or download any content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Neirbi Analytics, LLC; or (ix) encourage, authorize, or enable anyone to do any of the foregoing.
Subscription, Fees and Payment
The Services are purchased as a subscription. Some of Neirbi's services may include an initial fee, known as an onboarding fee. By subscribing to the Services, The User agrees to pay Neirbi Analytics, LLC the fees set forth services agreement or proposal that Neirbi Analytics, LLC presents to User when User purchases the subscription (“Order”). Except as otherwise specified in this Agreement or the Order, payment obligations are non-cancelable and fees paid are non-refundable.
3.2 Invoicing - Standard Edition
Standard Edition User are charged on a recurring monthly basis to a credit card on-file until cancelled by the User. Users who are unable to pay by credit card may elect to be invoiced, and will be required to pay for 12-months at the beginning of service. Service will automatically renew and the User will be invoiced for another 12-month period unless cancelled by the client prior to the renewal date.
3.2.1 Invoicing - Services
Neirbi will issue an invoice to User 30-days prior to the beginning of each subscription cycle, invoiced charges are due thirty (30) days from the invoice date, unless stated otherwise. Any account that becomes 15 days past due will be suspended until payment is made and all past due amounts will incur interest at a rate of 1.5% per month or the maximum rate permitted by law, whichever is lower.
All stated fees are exclusive of taxes or duties of any kind. User will be responsible for all applicable taxes and duties associated with the use of the Services.
3.4 Future Functionality
Users agree that subscription agreements are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.
Proprietary Rights and Data License
4.1 Reservation of Rights
Neirbi Analytics, LLC and our licensors exclusively own the Services, including any ideas, concepts, know-how, process, techniques and methodologies developed from performing the Services, and all copyrights, patents, trademarks, and other intellectual property rights therein. User may not remove, alter, or obscure any copyright, trademark, or other proprietary rights notices appearing on the Services.
4.2 User Data
Neirbi Analytics, LLC does not claim any ownership rights to any data, information or other materials that the User provides through the Services (“Data”). Nothing in this Agreement will be deemed to restrict any rights that User may have to their data.
User hereby grants to Neirbi Analytics, LLC a non-exclusive, sub-licensable, worldwide, transferable, royalty-free license to use, reproduce, modify and make derivative works based upon the Data solely in connection with use of the Services and the provision of the Services. User represents and warrants that User or your licensors own all rights, title and interest in and to the Data and that User have all rights in the Data that are necessary and sufficient to use this Data in connection with your Account on the Service, and to grant to Neirbi Analytics, LLC the rights in the use of Data to benefit the user and further enhance Neirbi Analytics’ services. User allows and acknowledges that Neirbi Analytics may track metadata associated with your use of the Services, including IP addresses, stored sessions, account credentials, and network metadata (collectively, “Metadata”), to identify common patterns and improve Neirbi Analytics, LLC’s products and services across Neirbi Analytics, LLC’s customer-base. For clarity, Metadata does not include your Data. User agrees and consents to access, collection, transmittal, storage, monitoring, copying, processing, analysis and use of the Metadata and your Data by Neirbi Analytics, LLC in order to administer, develop and improve the Services and Neirbi Analytics, LLC’s other products and services, and to monitor compliance with this Agreement to Neirbi Analytics, LLC under this Agreement.
Neirbi Analytics, LLC may store and use certain Data.
If User provides Neirbi Analytics, LLC with any suggestions for improvement, comments, or other feedback regarding the Services (“Feedback”), User grants to Neirbi Analytics, LLC a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable and transferable license under any and all intellectual property rights that User owns or controls to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
Term and Termination
5.1 Term of Agreement
Subscription Agreements will remain in force and effect until the terms of all subscriptions hereunder have expired or have been terminated. Notwithstanding of the foregoing, at Neirbi Analytics, LLC sole discretion, this Agreement will remain in force and effect thereafter for your use of the score functionality only.
Standard Edition users may cancel their subscription to the service at any time. Cancelation will go into effect once the current billing period ends.
5.2 Term of Purchased Subscription
The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, each subscription will automatically renew for the additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days for full-service plans or before the end of the relevant subscription term for Standard Edition Users.
5.3 Termination by Neirbi Analytics, LLC
The Users rights under this Agreement will automatically terminate and Neirbi may suspend or terminate any Account and use of the Services immediately and without notice if (a) User have breached any of the terms in this Agreement, or if (b) User have acted in a manner that we, in our sole discretion, determine, indicates that User do not intend to, or are unable to, comply with the terms of this Agreement. In addition, Neirbi may suspend or limit your Account and use of the Services, as Neirbi deem appropriate to prevent, investigate or otherwise address any suspected misuse of the Services.
5.4 Surviving Provisions
The provisions of Sections 2.3, 3, 4, 5.4 and 6 to 10 will survive any expiration or termination of this Agreement. After termination or expiration of this Agreement and only upon your written request, for paid subscription plans Account holders only, Neirbi will destroy your Data submitted to the Services in accordance with our data retention policy and procedures.
6.1 The User is willing to disclose Confidential Information, including data, upon conditions that take reasonable precautions to protect the Confidential Information. To assure such protection and to clarify each party's obligations during and after disclosure of the Confidential Information, the parties agree as follows:
1. For a period of three (3) years from the date hereof, Neirbi will:
Accept the Confidential Information in confidence and restrict its distribution solely to those of its employees, officers, directors, agents, representatives and advisors (including data scientists, data analysts, and advisors) (collectively, the “Representatives”) who have a reasonable need to use or evaluate the Confidential Information for the Purpose;
Keep project notes, emails / communication relating to the Client’s information confidential.
(c) Take reasonable steps to prevent the disclosure of any of the Confidential Information to third parties in violation of this Agreement, but in any event exercising not less than the level of care it exercises to safeguard its own confidential information; and
Take steps reasonably necessary to ensure that its Representatives comply with the provisions of this Agreement.
2. It is understood that Neirbi will use the Client’s data to build predictive models and generate useful demand and market insights for the Client’s use as well as to enhance demand prediction models for other Neirbi users. Additionally, insights derived from the Client’s confidential information may be used in aggregate or anonymously for presentation, research or publication purposes if the use of the information will not reveal any proprietary information about the Client’s business, name, business strategies, or specific market opportunities.
3. The commitments set forth in the above shall not extend to any of the Confidential Information received by Neirbi which:
(a) Was known or otherwise available to Neirbi prior to the date such Confidential Information was disclosed in connection with this Agreement;
(b) Was known or otherwise available to the public prior to the date such Confidential Information was disclosed in connection with this Agreement
(c) Becomes known or available to the public subsequent to the date such Confidential Information was disclosed in connection with this Agreement through no breach of this Agreement on the part of Neirbi;
Corresponds in substance to information disclosed to Neirbi at any time by a third party which, to the knowledge of Neirbi at the time of such disclosure, has no obligation of confidentiality to the Client;
Is developed by Neirbi independently and without reference to the Confidential Information; or
Is required to be disclosed by Neirbi in compliance with any order of a court or administrative agency of competent jurisdiction, provided, however, that Neirbi will give the Client sufficient advance notice to permit the Client to contest or request, at the Client’s cost and expense, the modification of such order.
4. In addition to the foregoing exceptions, and for the avoidance of doubt, nothing in this provision will limit the ability of Neirbi or any of its subsidiaries or business units to report on news or information obtained from sources without breach of this Agreement, or impose any penalty on such reporting.
5. The execution of this Agreement will create no business relationship between the parties.
6. The parties agree that an impending or existing violation of any provision of this Agreement could cause irreparable harm for which there may be no adequate remedy at law, and agree that the non-breaching party shall be entitled to seek immediate injunctive relief prohibiting such violation, in addition to any and all other remedies and rights available in law and in equity.
7. This Agreement shall be interpreted in accordance with the laws of the State of Connecticut, United States of America without regard to the principles of conflict of laws to the extent that such principles would permit or require the application of laws of another jurisdiction. Any suit, action or proceeding arising out of or relating to this Agreement shall be brought in the federal or state courts located in Connecticut, and both parties consent to jurisdiction and venue in such courts for purposes of any suit, action or proceeding arising out of or relating to this Agreement. This Agreement shall be binding upon Neirbi and The Associate and each of Neirbi’s respective subsidiaries, affiliates and legal successors when both parties have executed it.
8. Notwithstanding anything to the contrary contained in this Agreement, the Client acknowledges that Neirbi is presently or will become involved, either directly or through one or more affiliates, in the same industry as the Client. The Client agrees that present and future product offerings by Neirbi (or present and future product offerings of one or more of its affiliates) that directly compete with product offerings of the Client and Client’s operating subsidiaries, shall not, in and of themselves, constitute a violation of this Agreement.
9. The Agreement represents the entire understanding and agreement of the parties and supersedes all prior communications, agreements and understandings relation to the subject matter hereof. The provisions of this Agreement may not be assigned and/or modified by either party without the prior written consent of the other. Each party warrants and represents that it has the authority to enter into this Agreement for itself and its corporate affiliates.
Representations, Warranties, Exclusive Remedies and Disclaimers
Each party represents that it has validly entered into this Agreement and has the legal power to do so.
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, Neirbi Analytics, LLC EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Neirbi Analytics, LLC OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
Neirbi makes no warranty that the Services will meet your requirements, provide specific results or be available on an uninterrupted, secure, or error-free basis. User acknowledges that the provision of the Services depends on necessary hardware, software, networks, storage, advertising partners and platforms and other products and services provided by third parties which are not controlled by Neirbi Analytics, LLC. Neirbi therefore will not be liable for any unavailability or performance of the Services that is due to the outage or failure to perform of any such third-party services on which the Services depends. User assumes sole responsibility and liability for any output or results obtained from the use of the Services and for conclusions drawn from such use. Neirbi will have no liability for any claims, losses or damage caused by errors or omissions in any information provided to Neirbi Analytics, LLC by User in connection with the Services or any actions taken by Neirbi at your direction. Neirbi will have no liability for any claims, losses or damages arising out of or in connection with your Data.
Furthermore, Neirbi Analytics’ services include forecasts, which are generated by using multiple sources of external data, historical models and data-science. While Neirbi Analytics, LLC will make its best commercial effort to ensure accuracy, the final responsibility to make decisions on business strategy using Neirbi’s data remains solely with the user.
User will indemnify, defend and hold Neirbi Analytics, LLC and its officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and other professional fees arising out of or in any way connected with (i) your access to or use of the Services, or (ii) your Data, including but not limited to, the transmission and submission of such Data to the Services, and infringement or misappropriation of any third party proprietary rights by your Data, provided that we: (a) promptly notify User in writing of the claim; (b) grant User sole control of the defense and settlement of the claim; and (c) provide you, at your expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim.
Limitation of Liability
Neirbi Analytics, LLC’S TOTAL LIABILITY TO USER AND YOUR AUTHORIZED USERS FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNTS PAID TO Neirbi Analytics, LLC BY USER FOR THE SERVICES DURING THE SIX (6)-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY. NEIRBI WILL NOT BE LIABLE TO USER OR YOUR AUTHORIZED USERS FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR COSTS OF SUBSTITUTE GOODS OR SERVICES, OR FOR LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, ARISING IN ANY WAY OUT OF THIS AGREEMENT OR RESULTING FROM ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT NEIRBI HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF AN EXCLUSIVE REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
10.1 Export Control
User agree to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Services, nor any direct product thereof, are: (i) downloaded or otherwise exported or re-exported directly or indirectly in violation of such export laws and regulations; or (ii) used for any purposes prohibited by the such export laws and regulations, including but not limited to nuclear, chemical, or biological weapons proliferation.
10.2 U.S. Government End User
The Services and its documentation are “commercial items” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212, DFARS 227.7202 and other government acquisition regulations, as applicable. If the Services and its documentation are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Services and its documentation will be only those specified in this Agreement.
10.3 Dispute Resolution
This Agreement and any action related thereto will be governed by the laws of the State of Connecticut without regard to its conflict of laws provisions. User and Neirbi irrevocably consent to the jurisdiction of, and venue in, the state or federal courts located in the State of Connecticut for any disputes arising under this Agreement.
User agrees that Neirbi may identify User as a customer of the Services, and display your name and logo (if any) in connection with such identification, on the Site and in its other published marketing materials. Neirbi will use good-faith efforts to comply with any reasonable trademark usage guidelines User provides to Neirbi Analytics, LLC in connection with your name and logo.
User may not assign any rights or obligations under this Agreement, whether by operation of law or otherwise, without our prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void.
Notwithstanding the foregoing, User may assign or transfer this Agreement without our consent to a third party that acquires User by merger, the sale of the majority of your stock, or the acquisition of all or substantially all of your assets.
Neirbi Analytics, LLC may assign its rights and obligations under this Agreement (without the prior written consent of User) to any surviving party in a merger or consolidation in which Neirbi Analytics, LLC is a party or to any party that acquires all or substantially of Neirbi Analytics, LLC's equity or assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
Neirbi may provide any notice to User under this Agreement by: (i) posting a notice on the Site; or (ii) sending a message to the administrative email address(es) then associated with your Account. Notices Neirbi provides by posting on the Site will be effective upon posting and notices Neirbi provides by email will be effective when Neirbi send the email. It is your responsibility to keep your email address(es) current. User will be deemed to have received any email sent to the email address then associated with your account when Neirbi send the email, whether or not User actually receive the email. If User has any questions regarding this Agreement please contact us via email at info@Neirbi.com
In the event that any provision of this Agreement is held to be invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect.
Neirbi Analytics, LLC’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Neirbi Analytics, LLC.
10.9 No Election of Remedy
Except as expressly set forth in this Agreement, the exercise by the parties of any of their remedies under this Agreement will be without prejudice to their other remedies under this Agreement or otherwise.
10.10 Force Majeure
Neither party will be responsible for any failure or delay in its performance under this Agreement (except for the payment of money) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.
10.11 Entire Agreement
This Agreement constitutes the entire agreement between the parties regarding the Services, and it supersedes and replaces any prior agreements and understandings between the parties regarding the Services.
Updated: July 31, 2017