Last Updated: May 17, 2017.

TERMS OF USE

Welcome

LiveBy, Inc. (“we” or “us”) provides you, and, if applicable, your Affiliates, access to our website (the “Site”) and our mobile applications, online platform, and products and services (together, with the Site referred to herein as the “Services”). Your use of the Services is subject to your acceptance and compliance with these Terms of Use (these “Terms”). If you do not agree to these Terms, do not use the Services. Each time you access or use the Services, the current version of these Terms will apply.

Your use of the Services is also subject to our Privacy Policy, which is incorporated into these Terms by reference. In the event of a conflict between any other document and these Terms, these Terms control. We reserve the right at any time and without notice to change these Terms. If you have questions regarding these Terms, please contact us.

For purposes of these Terms, “Affiliate” means (x) an entity’s officers, directors, employees, independent contractors, or other authorized agents, or (y) any entity or person that directly or indirectly controls the transactions of another party, including the power to direct or cause the direction of the management or policies of an entity, whether through the ownership of voting securities, written voting rights agreements, written agreement, title, or other influence.

1. About the Services

The Services are comprised primarily of a service that aggregates data and uses predictive analytics to match users with their ideal neighborhood.

2. Registration and Accounts

You may use our Services only if you are at least the age of majority in the jurisdiction in which you reside. If you are using the Services on behalf of an entity, (i) you represent and warrant to us that you are authorized to bind such entity to these Terms and (ii) you acknowledge and agree that your use of the Services binds such entity to these Terms.

When you register for an account on the Site or through the Services or download our API (in any event, an “Account”), you agree to these Terms and further agree to (i) provide accurate, current and complete information about yourself as prompted by our registration form (including your email address or phone number) and (ii) maintain and update your information (including your email address or phone number) to keep it accurate, current and complete. You acknowledge that if any information provided by you is untrue, inaccurate, not current or incomplete, you will have materially breached this Agreement, and we reserve the right to terminate this Agreement and your use of the Services. As part of the registration process, you will be asked to provide a username and password that are unique to the Account (collectively referred to hereunder as “Login Information”). You will be responsible for the confidentiality and use of your Login Information and agree not to transfer or resell your use of or access to the Services to any third party other than your appointed agent, manager or other staff member to whom you assign such responsibility. If you have reason to believe that your Account is no longer secure, you must immediately notify us of the problem. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in the Account, and you further acknowledge and agree that all rights in and to the Account are and shall forever be owned by and inure to our benefit. You are entirely responsible for maintaining the confidentiality of your Login Information and for any and all activities conducted through your account.

WE MAY SUSPEND, TERMINATE, MODIFY OR DELETE YOUR ACCOUNT AND/OR TERMINATE OR SUSPEND YOUR ACCESS TO THE SERVICES AT ANY TIME WITH ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE, WITHOUT ANY LIABILITY TO YOU WHATSOEVER.

Some of our Services are available on mobile devices. You agree that will not use such Services in a way that distracts you and prevents you from obeying traffic or safety laws.

3. Intellectual Property

Except as expressly provided herein, the Services are protected by copyrights, trademarks, patents, trade secrets, and other intellectual property and proprietary rights (collectively, “Intellectual Property Rights”), and any unauthorized use of the same violates these Terms and may violate applicable law. Except as expressly provided herein, we do not grant you any express or implied right to use the Services. You agree not to copy, republish, frame, download, transmit, modify, adapt, create derivative works based on, rent, lease, loan, sell, assign, distribute, display, perform, license, sublicense or reverse engineer any of the Services except as expressly provided herein. In addition, you agree not to take any action that may infringe on our Intellectual Property Rights. Do not remove, obscure, or alter any legal notices displayed in or along with the Services.

4. Copyright

We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act. If you believe that any material on the Site infringes upon any copyright which you own or control, you may file a DMCA Notice of Alleged Infringement with our Designated Copyright Agent: LiveBy, Inc.

Attn: Designated Copyright Agent
151 N. 8th St., Suite 401
Lincoln, NE 68508

5. Limitation of Liability

IN NO EVENT SHALL WE, OUR DIVISIONS, SUBSIDIARIES AND AFFILIATES OR OUR OR THEIR RESPECTIVE OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, SHAREHOLDERS, MEMBERS, MANAGERS, OWNERS, AND AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND, OR ANY DAMAGES OR LOSSES WHATSOEVER, WHETHER OR NOT FORESEEABLE OR IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, AND ON ANY THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORTIOUS ACTION, OR ANY OTHER CLAIM ARISING OUT OF OR IN CONNECTION WITH: (i) THE ACCESS, CONSUMPTION OR USE OF OR THE INABILITY TO ACCESS OR USE ANY PART OF THE SITE OR THE SERVICES; (ii) ANY INFORMATION THAT IS SENT OR RECEIVED OR NOT SENT OR RECEIVED; (iii) ANY SERVICES AVAILABLE THAT ARE DELAYED OR INTERRUPTED; (iv) ANY WEBSITE REFERENCED OR LINKED TO FROM THE SERVICES; (v) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE ANY LINKED SITE; OR (vi) YOUR RELIANCE UPON ANY MATERIAL, PRODUCT, SERVICE OR ANY CONTENT OR OTHER INFORMATION AVAILABLE ON THE SITE OR THE SERVICES.

TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF US AND OUR AFFILIATES, SUPPLIERS AND DISTRIBUTORS, FOR ANY CLAIM ARISING OUT OF OR RELATING IN ANY MANNER TO THE USE OF THE SERVICES, IS LIMITED TO THE GREATER OF $100 OR THE AMOUNT YOU PAID US TO USE THE SERVICES TO WHICH SUCH CLAIM RELATES IN THE 12 MONTH PERIOD PRECEDING THE FILING OF SUCH CLAIM.

6. Indemnification

You agree to hold us, our divisions, subsidiaries, and Affiliates, and our and their respective officers, directors, partners, employees, shareholders, members, managers, owners, and agents harmless from any claim or demand, including reasonable attorneys’ fees, due to or arising out of: (i) your access to, reliance on, use, purchase, or, as applicable, consumption of the Site or Services (including any use by your employees, contractors, customers, agents, or clients and all uses of your account numbers, user names, and passwords, whether or not actually or expressly authorized by you, in connection with the Services); (ii) your connection to the Services; (iii) your violations of these Terms or your breach of any representation or warranty made herein; (iv) your infringement of any third party’s Intellectual Property Rights when using the Site; (v) your violation of any rights of any third party; (vi) any dealings between you and any other User; (vii) our use of User Content; or (viii) your access to or use of any sites linked to the Site or the Services.

If you have a dispute with one or more Users, you release us from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code § 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

7. User Content

The Services may include interactive areas in which you may post content and information, including peer and client reviews and other materials (collectively, the “User Content”). You retain all rights in, and are solely responsible for, the User Content you post to the Services except as hereinafter described. You are also solely responsible for your use of such interactive features, and use them at your own risk. We reserve the right to remove or modify User Content for any reason in our sole discretion.

When you post User Content to the Services, you give us and our Affiliates a nonexclusive, royalty-free, perpetual, irrevocable and fully sub licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content throughout the world in any media. To the extent such content is attached to a user profile on the Services, the foregoing license includes a right to reproduce your profile, and any name, likeness or photograph contained in such profile. If you submit feedback or suggestions about our Services, we may use your feedback or suggestions without obligation to you.

8. Google Places API

By using LiveBy’s web service application, users are bound by Google’s Terms of Service.

9. Applicable Law and Venue

The laws of the State of Nebraska, excluding its conflict of law provisions, will apply to any disputes arising out of or relating to these Terms or the Services. All claims arising out of or relating to these Terms or the Services will be litigated exclusively in the state or federal courts located in Lancaster Count, Nebraska, and you and consent to personal jurisdiction and exclusive venue in such courts.

10. Entire Agreement

These Terms constitute the entire agreement between you and us with respect to the subject matter hereof, and supersede and replace any prior version of the Terms. These Terms create no third party beneficiary rights.

11. Electronic Notices

We use email and electronic means to stay in touch with our Users. You consent to receive communications from us in electronic form via the email address you submit upon registration or via the Services and further agree that all Terms of Use, agreements, notices, disclosures, and other communications we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. Communications made through email or the Services do not constitute legal notice to us or any of our Affiliates. All legal notices hereunder shall be in writing and delivered to LiveBy, Inc., 151 N. 8th St., Suite 518, Lincoln, NE 68508.

12.Limitation of Term of Action

You agree that any cause of action related to or arising out of your relationship with us must commence within ONE year after the cause of action accrues. Otherwise, such cause of action is permanently barred.

13. Waiver, Severability, and Assignment.

Our failure to enforce a provision of these Terms is not a waiver of our right to do so later. If any provision of these Terms is found unenforceable, the remaining provisions of the Terms will remain in full effect and an enforceable term or terms will be substituted reflecting our intent as closely as possible. You may not assign any of your rights under these Terms, and any attempt to do so will be void. We may assign our rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services.

14. Disclaimer of Warranties

We provide the Services “as is” and without warranty of any kind. Without limiting the foregoing, we expressly disclaim all warranties, whether express, implied or statutory, regarding the Service including, without limitation, any warranty of merchantability, fitness for a particular purpose, title, security, accuracy, and non-infringement. Specifically, we make no representation or warranty that the information we provide or that is provided through the Services is accurate, reliable or correct; that the Services will meet your requirements; that the Services will be available at any particular time or location; that the Services will function in an uninterrupted manner or be secure; that any defects or errors will be corrected; or that the Services are free of viruses or other harmful components. You assume full responsibility and risk of loss resulting from your use of information, content, or other material obtained from the Services. Some jurisdictions limit or do not permit disclaimers of warranty, so this provision may not apply to you.

15. Arbitration

Should a dispute arise between you and us, for any claim (except for claims for injunctive or equitable relief or claims regarding intellectual property rights) under this Agreement, either party may elect to resolve any dispute arising under this Agreement through binding non-appearance-based arbitration. The party electing arbitration must initiate it through an established alternative dispute resolution (“ADR”) provider mutually agreed-upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration will be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions; (b) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

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