Last updated: September 17, 2020
1.1 Choice of Law. Your relationship is with Nialli Inc., an Alberta Corporation, and you agree to be bound by the laws of Alberta and the laws of Canada applicable therein.
1.3 Some Software or Services may also be subject to additional or different terms (the “Additional Terms”).
1.4 If there is any conflict between the General Terms and the Additional Terms, then the Additional Terms take precedence in relation to that Software or Service to the extent of the conflict. The General Terms and any applicable Additional Terms and all other documents incorporated by reference in these General Terms are referred to as the “Terms”.
1.5 Nialli may change the Terms at its sole discretion. If we change the Terms, then we will make a new copy available at https://www.nialli.com/legal/visual-planner-terms-of-service. Your use of the Software and Services is subject to the most current version of the Terms at the time of such use.
In addition to the capitalized terms defined above, unless otherwise defined, capitalized terms used throughout these General Terms have the meanings stated below:
2.1 “Account Information” means the information you provide to Nialli when you register for a Service, or use Nialli Software, including your Nialli ID and log-in information, and the information that Nialli associates with your use of the Software or Service, including username, device identification, and IP address.
2.2 “Copyright Notice Laws” has the meaning specified in Section 17.1.
2.3 “DMCA” has the meaning specified in Section 17.1.
2.4 “Embargoed Country” has the meaning specified in Section 22.
2.5 “Export Laws” has the meaning specified in Section 22.
2.6 “Feedback” has the meaning specified in Section 16.1.
2.7 “Intellectual Property Rights” means copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, and any other intellectual and proprietary rights.
2.8 “Law” means any applicable law, regulation, or generally accepted practices or guidelines in any applicable jurisdiction, such as any laws regarding the export of data or software to and from the United States or other applicable countries.
2.9 “Linked Sites” has the meaning specified in Section 19.
2.10 “Marks” means the trademarks, logos, and service marks displayed on or in connection with any Software or Services.
2.11 “Materials” means any materials provided by you or Nialli, including without limitation any (a) User Material; and (b) information, data, documents, images, photographs, graphics, audio, videos or webcasts.
2.12 “Nialli Materials” means any Materials provided by Nialli under these Terms.
2.13 “Prohibited Use” has the meaning specified in Section 22.
2.14 “Sanctioned Party” has the meaning specified in Section 22.
2.15 “Service” means any functionality or service provided by any of the Site, the Software or any Nialli Visual Planner Plan, and collectively “Services.”
2.16 “Share” means to email, post, transmit, upload, or otherwise make available through your use of the Services.
2.17 “Shared Material” means the User Material that you or other Users share through the Services.
2.18 “Site” means any Nialli website that relates to or is connected to the Nialli Visual Planner Services.
2.19 “Software” means Nialli software code, interfaces, content, data, and associated documentation, including without limitation any mobile and tablet applications, web application, and applications related to the Services, content files, drivers, patches, or fonts. Software includes, without limitation, the Nialli Visual Planner Web Client and the Nialli Visual Planner Wall Software.
2.20 “Nialli Visual Planner Wall Software” means the Nialli software code and associated documentation that is installed or designed to be installed on a personal computing device that is connected to one or more projection devices and used in relation to a Nialli Service.
2.21 “Nialli Visual Planner Web Client” means the Nialli software code and associated documentation designed to be run as a web application on a computing device and used in relation to a Nialli Service.
2.22 “User” means a user of the Software or a Service.
2.23 “User Material” means (a) Your Material and (b) Shared Material uploaded by other Users.
2.24 “You” or “you” means you the individual User, and includes the corporation, company, partnership, trust or any other entity on whose behalf you are purporting to act with respect to the use of any Nialli Software or Service.
2.25 “Your Material” means any Materials that you Share through your use of the Services.
2.26 “Your Shared Material” means Your Material that you choose to make into Shared Material.
In addition, the terms “affiliates” and “subsidiaries” have the meanings given them under Alberta corporate law.
3.1 If you are purporting to act on behalf of a corporation, company, partnership, trust, or other incorporated or unincorporated entity, you hereby represent to Nialli Inc. that you are duly authorized to act on its behalf and it has the power and capacity to enter into this agreement with Nialli Inc. and this agreement shall be binding upon it.
3.2 You may not use the Software or the Services if you do not agree to the Terms. You may accept the Terms (a) by selecting “I agree” to these Terms, (b) by using the Software and Services in any way, such as downloading or uploading any Materials made available via the Services by Nialli, you, or other Users, or (c) by merely browsing the Services or using the Software.
3.3 You may not use the Software or Services if (a) you are prohibited by Law from receiving or using the Software or Services, (b) you are not fully able and competent to enter into a binding contract with Nialli, such as if you are not of legal age or have not obtained parental consent. In particular, unless expressly stated otherwise in the Additional Terms for any given Software or Service, you affirm that you are over the age of 18 and acknowledge that the Software and these Services were not intended for children under 18.
3.4 Nialli may require you to provide consent to the updated Terms before further use of the Software or Services is permitted. In any event, your continued use of any Software or Service constitutes your acceptance of the changes.
3.5 Software Licenses: Subject to the provisions of these Terms, you are granted the following software licenses:
a) Nialli Visual Planner Wall Software: As a User, you are granted a personal, worldwide, revocable, limited, nontransferable, nonsublicensable, nonassignable, nonexclusive license to use the Nialli Visual Planner Wall Software solely to access and use the Nialli Visual Planner Services and for no other purpose.
b) Nialli Visual Planner Web Client: As a User, you are granted a personal, worldwide, revocable, limited, nontransferable, nonsublicensable, nonassignable, nonexclusive license to use the Nialli Visual Planner Web Client solely to access and use the Nialli Visual Planner Services and for no other purposes.
The Software and any part thereof is licensed and not sold to you. The licenses granted in this Agreement do not grant you any right to use Nialli proprietary interfaces and other Nialli intellectual property in the design, development, manufacture, licensing or distribution of their proprietary devices and accessories, or third-party software application for use with the Software or Nialli-branded hardware.
You may not, and you agree not to enable others to, copy (except as expressly permitted by the Terms), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Software or any Service or any part of the foregoing (except as and only to the extent as may be permitted by licensing terms governing use of the open-sourced components that may be included with the Software).
The Software may periodically check with Nialli for updates to the Software. If an update is available, the update may automatically download and install on your computing device. By using the Software, you agree that Nialli may download and install such automatic updates. In addition, in our continuing endeavors to improve our Software, Services, and User experience, we may capture information to help us address errors, flaws, failures, or faults that cause our Software or Services to produce an incorrect or unexpected result, or to behave in unintended ways. That captured information may include usernames, IP addresses, dates, device types and operating systems and other software. By using the Software and Services, you agree that Nialli may capture such information.
4.2 Shared Materials may include personal information (such as email addresses) to facilitate your ability to Share Your Material. You are solely responsible for any and all personal information that you or other Users use or submit in connection with the Services. You shall ensure that you are in full compliance with all privacy law in relation to any personal information you upload or provide on or through the Services, and in particular, you shall obtain any required consents to the placement of any personal information on the Services and the storage, processing and disclosure of the personal information in connection with such Sharing and Nialli’s handling of the personal information in connection with its provisioning of the Services. As set out in Sections 10.4 and 10.7, you may restrict how personal information that comprises part of Your Material may be Shared with other Users in connection with certain Services.
4.3 Security. You acknowledge and agree that applications, systems, and data that are made available over the Internet are inherently insecure against motivated individuals and Nialli has no obligation or liability to you for any unauthorized access to your information and data.
5.1 Software, Services, and Nialli Materials. The Software, Services, and Nialli Materials, and their selection and arrangement, are protected by Intellectual Property Rights. Except as expressly provided in the Terms, Nialli and its licensors do not grant any express or implied rights to use the Software, Services, and Materials. All rights, title and interest in the Software, Services, and Nialli Materials, in all languages, formats and media throughout the world, are and will continue to be the exclusive property of Nialli and/or its licensors and nothing in the Terms shall be construed to confer any license or right, by implication, estoppel, or otherwise, under copyright or other intellectual property rights, to you or any third party.
5.2 Trademarks. The Marks are the property of Nialli or other rights holders. You are not permitted to use the Marks without the prior consent of Nialli or the rights holder. Nialli and the Nialli logo are trademarks of Nialli Inc. For a current list of Nialli’s Marks, as well as certain third-party Marks, please refer to the posted trademark information at https://www.nialli.com/legal/intellectual-property/trademarks.
6.1 If you comply with the Terms, Nialli grants to you a nonexclusive, nontransferable, revocable right to access and use the Services, to Share Your Materials to the Service, and to use the Nialli Materials in connection with the Services, subject to the restrictions stated in this Section.
6.2 Except with respect to Your Material, you agree:
a) Not to alter, copy, modify or retransmit the Materials;
b) Not to lease, license, rent or sell the Materials or the right to use and access the Services;
c) Not to remove, obscure or alter any text or proprietary notices contained in Materials;
d) Not to copy or imitate part or all of the design, layout, or look-and-feel of the Service, which are protected by Intellectual Property Rights;
e) To use the Services and the Materials only as permitted by the Terms and any Law; and
f) That certain Services and Materials may be available only if you have paid a fee or have provided certain Account Information.
6.3 Nialli uses reasonable efforts to make the Services available 24 hours a day, 7 days a week. However, there will be occasions when a Service will be interrupted for maintenance, upgrades, and repairs, or as a result of failure of telecommunications links and equipment that are beyond our control. Also, a Service may become unavailable because of an error or a defect in the Software or Service or any hardware, software, system, or service on which a Service relies. Nialli will take reasonable steps to minimize such disruption, to the extent it is within our reasonable control, but Nialli will not have any liability for any disruption of a Service. The Services are available in the English language only.
6.4 Nialli may modify or discontinue, temporarily or permanently, the Services or Materials, or any portion thereof, with or without notice. You agree that Nialli shall not be liable to you or anyone else if we do so.
6.5 Payment Terms.
a) Subscription Fees. The Services require a subscription in order to access all or part of such Services. Subscription Fees are nonrefundable, except as otherwise stated in specific subscription terms applicable to a Service. Subscription Fees may change at the end of your subscription period.
b) You are responsible for paying all taxes levied in connection with your use of the Services. Your credit card company or bank may impose on you other fees, such as foreign exchange fees, in connection with your payment of the Subscription Fees. Your ability to access the Services may require payment of third-party fees (such as telephone toll charges, mobile carrier fees, ISP, data plan, etc.). Nialli has no connection to or responsibility for any such taxes or fees.
c) Collection of Subscription Fee. You agree that, in the event Nialli is unable to collect the Subscription Fees owed by you to Nialli for the Services, Nialli may take the steps it deems necessary to collect such Subscription Fees from you and that you will be responsible for all costs and expenses incurred by Nialli in connection with such collection activity.
7.1 You agree that the Account Information provided or to be provided by you will always be complete, accurate and up-to-date. You may not let any other Person have access to your account. It is your responsibility to keep your account password or log-in credentials confidential at all times, and you are solely responsible to Nialli for all activity that occurs via your Account. If you become aware of any unauthorized use of your account or Account Information, or any other breach of security, you agree to promptly notify Nialli by contacting Support at https://www.nialli.com/contact-us/support. Nialli may require that you change your Account Information or certain parts of your Account Information at any time for any reason. Unless Nialli expressly allows you the right to create and manage Nialli IDs as an account administrator for a company or unless expressly permitted in the Additional Terms, you may not use another person’s Account Information.
8.1 You agree not to access or attempt to access the Services by any means other than the Software or interface provided by Nialli or circumvent any access or use restrictions put into place to prevent certain uses of the Services.
8.2 You agree not to use, or to encourage or permit others to use the Services, Software, or Materials to
a) Share any Material that is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, vulgar, obscene, child pornographic, lewd, profane, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
b) Stalk, intimidate and/or harass another;
c) Incite others to commit violence;
d) Harm minors in any way;
e) Share any Material that you do not have a right to Share under any Law or contractual or fiduciary relationship;
f) Share any Material that infringes any Intellectual Property Right or other proprietary right of any party;
g) Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
h) Forge headers or otherwise manipulate identifiers to disguise the origin of any of Materials posted on or transmitted through the Services;
i) Mislead a User into believing that they are interacting directly with Nialli or any Service;
j) Engage in any chain letters, contests, junk email, pyramid schemes, spamming, surveys, or other duplicative or unsolicited messages (commercial or otherwise);
k) Use any Nialli domain name as a pseudonymous return email address;
l) Share any Material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment;
m) In any manner, damage, disable, overburden or impair any Nialli server or the networks connected to any Nialli server;
n) Intentionally or unintentionally interfere with or disrupt the Services or violate any applicable Laws related to the access to or use of the Services, violate any requirements, procedures, policies or regulations of networks connected to the Services, or engage in any activity prohibited by the Terms;
o) Disrupt or interfere with the security of, or otherwise cause harm to, the Services, Materials, systems resources, accounts, passwords, servers or networks connected to or accessible through the Services or any affiliated or linked sites;
p) Disrupt, interfere with or inhibit any other User from using and enjoying the Services or Materials, or other affiliated or linked sites, Services or Materials;
q) Access or attempt to access any Material that you are not authorized to access or through any means not intentionally made available through the Services;
r) Market any goods or services for any business purposes (including advertising and making offers to buy or sell goods or services), unless specifically allowed to do so by Nialli;
s) Reproduce, sell, trade, resell, or exploit for any commercial purpose, any portion of the Software, Services or any Materials, use of any Software, Service or Materials, or access to any Software, Service or Materials;
t) Use any data mining, robots or similar data gathering and extraction methods in connection with the Software, Services or Materials;
u) Host, on a subscription basis or otherwise, the Services without Nialli’s authorization, including any related application, (i) to permit a third party to use the Services to create, transmit or protect any content, or (ii) to conduct conferences or online meeting services for a third party;
v) Defraud, defame or otherwise violate the legal rights (such as rights of privacy and publicity) of others; or
w) Collect or store data about other users in connection with the prohibited conduct and activities set forth in this Section 8.2.
9.1 Storage. Nialli may provide online storage for Your Material, subject to Section 9.2 below and any Additional Terms that may further define the scope of such storage. Unless otherwise stated in Additional Terms or a separate written agreement between you and Nialli, Nialli has (a) no obligation to store Your Material and (b) no responsibility or liability for the deletion or accuracy of any Materials, including Your Material, the failure to store, transmit or receive transmission of Materials, or the security, confidentiality, privacy, storage or transmission of other communications originating with or involving use of the Services.
9.2 You agree that Nialli retains the right to create reasonable limits on the use of the Materials, including Your Material, such as limits on file size, storage space, processing capacity and similar limits described in the web pages accompanying the Services and as otherwise determined by Nialli in its sole discretion. Nialli may require you to delete Your Material until you are within the storage space limit associated with your account.
9.3 You agree that you, not Nialli, are entirely responsible for all of Your Material that you Share, whether publicly posted or privately transmitted. You assume all risks associated with use of Your Material, including any reliance on its accuracy, completeness or usefulness.
9.4 Use and Access of Your Material.
a) Certain Services may enable you to specify the level at which such Services restrict access to Your Material. You are solely responsible for applying the appropriate level of access to Your Material. If you do not choose the access level to apply to Your Material, the system may default to its most permissive setting.
b) Nialli may allow you to import your contacts to the Services. For example, Nialli may provide tools to help you upload email addresses of your contacts. If you provide Nialli your password to retrieve those contacts, Nialli will not store the password after you have uploaded the contact information. In addition, Nialli will not store these email addresses you have uploaded once you have found and connected with your friends.
9.5 Licenses to Your Material. Nialli requires certain licenses from you with respect to Your Shared Material in order to operate and enable the Services. Accordingly, you grant the licenses to Your Shared Material as follows:
a) For Your Shared Material that’s Shared in a public forum, you grant Nialli a worldwide, royalty-free, nonexclusive, transferable and sublicensable license to adapt, display, distribute, modify, perform, publish, reproduce, translate and use Your Shared Material for the purpose of operating and improving the Services and enabling your use of the Services. You may revoke the license and terminate Nialli’s rights at any time by making it no longer Shared or by deleting the Shared Material or terminating your account.
b) For Your Shared Material that’s Shared in a public forum or shared privately with other Users of your choosing, you grant other Users a worldwide, royalty-free, nonexclusive, transferrable and sublicensable license to display, distribute, perform and reproduce Your Material, subject to Section 10 of these Terms. If you join or participate in a group that allows for sharing of Your Material within the group, then you also grant the Users within the group a license to adapt and modify Your Material that you have decided to share with such group. If you do not want to grant other Users these rights, then don’t Share Your Material with other Users.
c) For Your Material that is shared privately with other Users of your choosing, you grant Nialli a worldwide, royalty-free, nonexclusive, transferrable and sublicensable license to distribute, modify, publish, reproduce, translate and use Your Material for the purpose of operating and improving the Services and enabling your use of the Services. You may revoke this license and terminate Nialli’s rights at any time by removing Your Material from the Service; provided that you agree that Nialli may retain and use copies of Your Material for archival or “backup” purposes and pursuant to Section 15 (Investigations).
d) You may also grant Nialli specific or different license pursuant to the Additional Terms.
9.6 You acknowledge that the Services are automated (e.g., Your Material is uploaded using software tools) and that Nialli personnel will not access, view or listen to any of Your Material, except as reasonably necessary to perform the Services, including but not limited to the following:
a) Respond to support requests;
b) Detect, prevent or otherwise address fraud, security or technical issues;
c) As deemed necessary or advisable by Nialli in good faith to conform to legal requirements or comply with legal process; or
d) Enforce these Terms, including investigation of potential violations hereof, as further described in Section 15 (Investigations).
9.7 You acknowledge and agree that although Nialli endeavors to provide security measures to protect Your Material (including Your Shared Material that you Shared privately), Nialli is not liable for any damages resulting for the disclosure of Your Material.
10.1 License to Shared Material. Nialli grants you a worldwide, royalty-free and nonexclusive license to distribute, display, download, perform and reproduce the Material, subject to the restrictions stated in this Section 10. With respect to Shared Material Shared in a group allowing for content sharing, Nialli also grants you the license to adapt and modify such Shared Material. The license granted in this Section 10.1 is further limited to your personal and internal use purposes only.
10.2 It is your sole responsibility to determine what limitations, if any, are placed on your Shared Material. Nialli cannot and does not monitor or control what others do with the Shared Material, nor can Nialli prevent them from adding to, modifying or adapting the Shared Material.
10.3 You agree that Nialli has no liability of any kind should other Users use, modify, destroy, corrupt, copy or distribute your Shared Material in violation of the limitations that you may impose on its use.
10.4 Shared Material may include personal information (such as email addresses) to facilitate your ability to share Your Material. It is your sole responsibility for any and all personal information that you or other Users used and submitted in connection with the Services. You shall comply with all data protection and privacy laws and rules applicable to the personal information of other Users.
10.5 The Services may allow you to comment on Shared Material. Comments are not anonymous and may be viewed by other Users. Your comments may be deleted by you, other Users or Nialli.
10.6 If you are invited by a user of the Service to participate in shared digital content, editing or viewing, and you do not wish to receive email from such User or do not wish to participate, you are required to contact the person who invited you to update, correct or delete the information they provided about you.
10.7 In general, even though we might delete an account you hold with us in these types of shared editing or viewing areas, we may continue to retain information regarding your past actions with respect to content reviews or sharing initiated by others.
10.8 Upon removal of Your Material from the Service or upon making your Shared Material no longer shared, Nialli shall have a reasonable time to cease use, distribution and/or display of Your Material. However, you acknowledge and agree that Nialli shall have the right but not the obligation to keep archived or “backup” copies of Your Material or use Your Material pursuant to Section 15 (Investigations).
11.1 Any Software made available via the Services or through third-party marketplaces or stores is governed by the terms hereof or of the applicable Additional Terms or the license agreement referenced in the Software. If there is any conflict between the Terms and the license agreement provided with such Software, then the license agreement provided with the Software shall take precedence in relation to that Software.
11.2 Nialli may provide mobile and tablet applications through third parties that interact with the Services and Nialli products. You are responsible for obtaining and maintaining any equipment or ancillary services needed to access mobile and tablet applications and you are responsible for all applicable taxes and fees incurred while accessing such applications (such as fees from your mobile carrier, overage charges, etc.).
11.3 If no license agreement accompanies the Software that is available for download, the download and use of such Software will be governed by the terms of Section 3.4 and this Section 11.3. Nialli grants you a personal, worldwide, revocable, limited, nontransferable, nonsublicensable, nonassignable, nonexclusive license to use the Software in the manner permitted by the Terms. For clarification, you shall not distribute, lease, rent, sell or sublicense the Software. You agree that you will not decompile, reverse engineer or otherwise attempt to discover the source code of the Software. Notwithstanding the foregoing, decompiling the Software is permitted to the extent the laws of the jurisdiction where you are located give you the right to do so to obtain information necessary to render the Software interoperable with other software, provided, however, that you must first request the information from Nialli and Nialli may, in its discretion, either provide such information to you or impose reasonable conditions, including reasonable fees, on use of the Software to ensure that Nialli’s Intellectual Property Rights in the Software are protected. You may not assign (or grant a sublicense of) your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software. For clarity, your use of the Software is also subject to the disclaimers and limitations in Sections 13 and 14 below and your compliance with the export control provisions of Section 22.
11.4 The Software may automatically download and install updates from Nialli. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new Software modules and completely new versions. You agree to receive such updates (and permit Nialli to deliver these to you with or without your knowledge) as part of your use of the Services. In addition, in our continuing endeavors to improve our Software, Services, and User experience, we may capture information to help us address errors, flaws, failures, or faults that cause our Software or Services to produce an incorrect or unexpected result, or to behave in unintended ways. That captured information may include usernames, IP addresses, dates, device types, and operating systems and other software. By using the Software and Services, you agree that Nialli may capture such information.
11.5 The licenses granted hereunder by Nialli are solely for Your own internal business or personal purposes and you shall not use or permit the use of the Software or the Services for the benefit of any third parties, including without limitation, to provide service-bureau, software rental, subscription service, time-sharing, outsourcing, or any other type of services for the benefit of any third party.
12.1 You represent and warrant that: (a) you own the Intellectual Property Rights, or have obtained all necessary license(s) and permission(s), to use Your Material in keeping with your use in connection with the Services or as otherwise permitted by the Terms; (b) you have the rights necessary to grant the licenses and sublicenses described in the Terms; (c) you have received consent from any and all persons required to use Your Material as set forth in the Terms, including distribution, public display, public performance and reproduction of Your Material; and (d) Your Material does not violate or infringe any intellectual property right or other proprietary right, including right of publicity or privacy, of any person, company, or entity, or other third party.
12.2 You agree to indemnify and hold Nialli and its subsidiaries, affiliates and their respective officers, agents, employees, co-branders or other partners, and licensors harmless from any claim or demand, including reasonable attorneys’ fees on a full indemnity basis, due to or arising out of Your Material, your use of the Software, Services or Materials, your connection to the Services or Materials, your use of and access to personal information of other Users, the actions of any member of your group, your access to or use of Sites or the Linked Sites and your connections therewith, any claim that Your Material or its use caused damage to someone else, any dealings between you and anyone else advertising or promoting via the Services or Materials, your violation of the Terms, or your violation of any rights of another, including any Intellectual Property Rights.
12.3 You acknowledge and agree that by accessing or using the Software, Services, or Materials, you may be exposed to Materials (including Shared Group Material) from others that you may consider offensive, indecent, or otherwise objectionable, and agree to accept all of these risks.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
13.1 THE SOFTWARE, SITES, SERVICES AND MATERIALS ARE PROVIDED BY NIALLI “AS IS,” WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, NIALLI AND ITS LICENSORS MAKE NO WARRANTY THAT (A) THE SOFTWARE, SITE, SERVICES OR MATERIALS WILL MEET YOUR REQUIREMENTS OR WILL BE CONSTANTLY AVAILABLE, UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (B) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE, SITES, SERVICES, OR MATERIALS WILL BE EFFECTIVE, ACCURATE OR RELIABLE; (C) THE QUALITY OF THE SOFTWARE, SITES, SERVICES, OR MATERIALS WILL MEET YOUR EXPECTATIONS; OR THAT (D) ANY ERRORS OR DEFECTS IN THE SOFTWARE, SITES, SERVICES OR MATERIALS WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NIALLI OR THROUGH OR FROM USE OF THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS. ANY AND ALL WARRANTIES AND CONDITIONS CONCERNING ANY OF THE SERVICES, SITES, SOFTWARE AND NIALLI MATERIAL THAT MIGHT OTHERWISE ARISE, INCLUDING ANY AND ALL WARRANTIES AND CONDITIONS THAT MIGHT ARISE DURING THE COURSE OF DEALING, CUSTOM OR TRADE USAGE AND THOSE THAT MAY BE IMPLIED BY LEGISLATION OR UNDER LAW, ARE HEREBY DISCLAIMED.
13.2 NIALLI SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR USE OF OR PARTICIPATION IN ANY SOFTWARE, SITE, SERVICES AND MATERIALS. ANY MATERIAL DOWNLOADED, MADE AVAILABLE OR OTHERWISE OBTAINED THROUGH USE OF THE SOFTWARE, SITE OR SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH SOFTWARE OR MATERIAL. NIALLI ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR SIMILAR CODE THAT IS DOWNLOADED TO YOUR COMPUTER FROM ANY OF THE SOFTWARE OR SERVICES.
13.3 NIALLI DOES NOT CONTROL, ENDORSE OR ACCEPT RESPONSIBILITY FOR ANY SOFTWARE, SITES, SERVICES, OR MATERIALS OFFERED BY THIRD PARTIES ACCESSIBLE THROUGH LINKED SITES. NIALLI MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER ABOUT, AND SHALL NOT BE LIABLE FOR, ANY SUCH THIRD PARTIES, THEIR SOFTWARE, SITES, SERVICES, OR MATERIALS. ANY DEALINGS THAT YOU MAY HAVE WITH SUCH THIRD PARTIES ARE AT YOUR OWN RISK.
13.4 MANAGERS, HOSTS, PARTICIPANTS, MODERATORS AND OTHER THIRD PARTIES ARE NOT AUTHORIZED NIALLI SPOKESPERSONS, AND THEIR VIEWS DO NOT NECESSARILY REFLECT THOSE OF NIALLI. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NIALLI WILL HAVE NO LIABILITY RELATED TO USER MATERIAL OR ITS USE ARISING UNDER INTELLECTUAL PROPERTY RIGHTS, LIBEL, PRIVACY, PUBLICITY, OBSCENITY OR OTHER LAWS. NIALLI ALSO DISCLAIMS ALL LIABILITY WITH RESPECT TO THE USE, MISUSE, LOSS, MODIFICATION OR UNAVAILABILITY OF ANY USER MATERIAL.
13.5 NIALLI WILL NOT BE LIABLE FOR ANY LOSS THAT YOU MAY INCUR AS A RESULT OF SOMEONE ELSE USING YOUR PASSWORD OR ACCOUNT OR ACCOUNT INFORMATION IN CONNECTION WITH THE SOFTWARE, SITE, SERVICES, OR MATERIALS, EITHER WITH OR WITHOUT YOUR KNOWLEDGE.
13.6 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
14.1 IN NO EVENT SHALL NIALLI OR ANY OF ITS SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, LICENSORS OR SUPPLIERS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT FORESEEABLE OR IF NIALLI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR BASED 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 YOUR USE OF OR ACCESS TO THE SOFTWARE, SITE, SERVICES, OR MATERIALS. NOTHING IN THE TERMS SHALL LIMIT OR EXCLUDENIALLI LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF NIALLI OR ITS EMPLOYEES, OR FOR DEATH OR PERSONAL INJURY.
14.2 NIALLI'S AGGREGATE LIABILITY AND THAT OF ITS SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, LICENSORS OR SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO USD $100 OR THE AGGREGATE AMOUNT PAID BY YOU FOR ACCESS TO THE SERVICES DURING THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, WHICHEVER IS LARGER. THIS LIMITATION WILL APPLY EVEN IF NIALLI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
14.3 THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 14 APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
15.1 Nialli, in its sole discretion, may (but has no obligation to) monitor or review the Services and Materials at any time. Without limiting the foregoing, Nialli shall have the right, in its sole discretion, to remove any of Your Material for any reason (or no reason), including if Nialli determines it violates the Terms or any Law.
15.2 Although Nialli does not generally monitor User activity occurring in connection with the Services or Materials, if Nialli becomes aware of any possible violations by you of any provision of the Terms, Nialli reserves the right to investigate such violations, and Nialli may, at its sole discretion, immediately terminate your rights hereunder, including your right to use the Services or Materials, or change, alter or remove Your Material or Account Information, in whole or in part, without prior notice to you. If, as a result of such investigation, Nialli believes that criminal activity has occurred, Nialli reserves the right to refer the matter to, and to cooperate with, any and all applicable law enforcement authorities. Except to the extent prohibited by applicable Law, Nialli is entitled to retain and/or disclose any information or Materials, including Your Material or Account Information (or elements thereof), in Nialli’s possession in connection with your use of the Services to (a) comply with applicable Law, legal process or governmental request; (b) enforce the Terms; (c) respond to any claims that Your Material violates the Terms or rights of third parties; (d) respond to your requests for customer services; or (e) protect the rights, property, or personal safety of Nialli, its Users or third parties, including the public at large, as Nialli in its sole discretion believes to be necessary or appropriate.
16.1 You have no obligation to provide Nialli with ideas, suggestions, or proposals (“Feedback”). However, if you submit Feedback to Nialli, you will thereby be granting, and you agree to grant, to Nialli a worldwide, royalty-free, non-exclusive, and irrevocable license to use that Feedback in any manner that Nialli may wish, including to improve the Services, Software, Sites and Nialli Materials. You hereby agree and acknowledge that you will not receive any compensation or recognition in connection with the same.
16.2 Further, you hereby agree and acknowledge that by providing Feedback you may be giving up certain proprietary rights, including the right to apply for a patent and the right to receive any economic benefit from your Feedback. If you are not prepared to grant the foregoing license and to give up these rights or if you do not understand the consequences of providing Feedback then you should not provide Feedback to Nialli. Further, if you are in doubt, we encourage you to speak to an attorney.
16.3 Notwithstanding any other provision in the Terms, without any notice to you, Nialli may review and monitor your use of the Services, Site, Software, and Nialli Material and review your Material, including your personal information, for the purposes of research, planning and improving the Services, Sites, Software, and Nialli Material.
17.1 Nialli respects the Intellectual Property Rights of others and expects its Users to do the same. Nialli will respond to clear notices of copyright infringement consistent with the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c) (2) (“DMCA”) and Section 41.25 of the Copyright Act, RSC 1985, c C-42 and other similar laws (“Copyright Notice Laws”) and its response to such notices may include removing or disabling access to the allegedly infringing Materials, terminating the accounts of repeat infringers and/or making good-faith attempts to contact the User who posted the Material(s) at issue so that he may, where appropriate, make a counter-notification.
17.2 If you believe that your work has been used or copied in a way that constitutes copyright infringement and such infringement is hosted on the Services, on websites linked to or from the Services, or in connection with the Services or Materials, please provide, pursuant to the Copyright Notice Laws, written notification via regular mail or via fax (not via email or phone) of claimed copyright infringement to Nialli’s Copyright Agent (contact information below), which must contain all of the following elements: (a) A physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest that is alleged to have been infringed; (b) A description of the copyrighted work(s) that you claim have been infringed and identification of what Material in such work(s) is claimed to be infringing and that you request to be removed or access to which is to be disabled; (c) A description of where the Material that you claim is infringing is located on the Services; (d) Information sufficient to permit Nialli to contact you, such as your physical address, telephone number and email address; (e) A statement by you that you have a good faith belief that the use of the Material identified in your notice in the manner complained of is not authorized by the copyright owner, its agent or the law; (f) A statement by you that the information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or are authorized to act on the copyright owner’s behalf; (g) A description of your interest or right with respect to the copyright in the Material; (h) A statement specifying the infringement that is claimed; (i) The date and time of the commission of the claimed infringement; and (j) Any other information that may be required under Copyright Notice Laws. Before you file such a notification, please carefully consider whether or not the use of copyrighted material at issue is protected by the “fair use” doctrine, as you could be liable for costs and attorneys’ fees should you file a takedown notice where there is no infringing use. If you are unsure whether a use of your copyrighted material constitutes infringement, please contact an attorney.
17.3 If you believe access to Your Material was disabled or removed by Nialli as a result of an improper copyright infringement notice, please provide, pursuant to the Copyright Notice Laws, written notification via regular mail or via fax (not via email or phone) to Nialli’s Copyright Agent (contact information below), which must contain all of the following elements: (a) A physical or electronic signature of the user; (b) Identification of the material that was removed from the Services and the location of the Service on which the material appeared before it was removed; (c) A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; (d) Information sufficient to permit Nialli to contact you, such as your physical address, telephone number and email address. Before you file such a counter-notification, please carefully consider whether or not the use of the copyrighted material at issue is infringing, as you could be liable for costs and attorneys’ fees in the event that a court determines your counter-notification misrepresented that the material was removed by mistake. If you are unsure whether use of the material at issue constitutes infringement, please contact an attorney.
17.4 Nialli’s Copyright Agent for notice of claims of copyright infringement can be reached as follows:
1301 401 9th Ave SW
Calgary, Alberta, T2P 3C5
By fax: 403.699.9784
The Copyright Agent will not remove Material from the Services in response to phone or email notifications regarding allegedly infringing Material, since a valid Copyright Notice Laws notice must be signed, under penalty of perjury, by the copyright owner or by a person authorized to act on his or her behalf. Please submit such notifications by fax or ordinary mail only and as further described by this Section. The Copyright Agent should be contacted only if you believe that your work has been used or copied in a way that constitutes copyright infringement and that such infringement is occurring on the Services or on sites linked to or from the Services, or in connection with the Services or Materials. All other inquiries directed to the Copyright Agent will not be responded to.
You agree that Nialli may display advertisements adjacent to Your Material, and you agree that you are not entitled to any compensation. The manner, mode and extent of advertising or other revenue generating models pursued by Nialli on or in conjunction with the Services and/or Your Material are subject to change without specific notice to you.
The Services and Materials may include links that will take you to websites or services not operated by Nialli (“Linked Sites”). Whether the link was provided by Nialli as a courtesy, or whether it was posted by a User, Nialli has no control over non-Nialli websites or services. You agree that we are not responsible for the availability or contents of any website or service we do not operate.
20.1 Termination by You.
a) As either an individual user or a group administrator for a Service, You may stop using the Services at any time. You may terminate Nialli’s right to distribute, publicly perform and publicly display Your Shared Material by making it no longer Shared. Subject to the Terms, you may terminate the remainder of Nialli’s rights by removing Your Material from the Service, either by deleting it manually, or by contacting Customer Care to have your subscription cancelled, if applicable, and content deleted. To terminate your Service account, contact Support at https://www.nialli.com/contact-us/support. Any fees paid by you prior to your termination are not refundable. Termination of your account shall not relieve you of any obligation to pay any accrued fees or charges.
b) As a group administrator for a Service, you may terminate an individual User’s access to a Service at any time.
20.2 Termination by Nialli. Subject to the Additional Terms, if any, Nialli may at any time terminate our agreement with you (or any individual Additional Terms) if:
a) You have breached any provision of the Terms (or have acted in a manner that clearly shows you do not intend to, or are unable to, comply with the Terms);
b) Nialli is required to do so by Law (for example, where the provision of the Services or Materials to you is, or becomes, unlawful);
c) The provision of the Services to you by Nialli is, in Nialli’s opinion, no longer commercially viable;
d) Nialli has elected to discontinue the Services or Materials (or any part thereof); or
e) There has been an extended period of inactivity in your account.
20.3 Termination or Suspension of Services. Nialli may also terminate or suspend all or a portion of your account and/or access to the Services for any reason (subject to Additional Terms for certain Services). Except as may be set forth in any Additional Terms applicable to a particular Service, termination of your account may include: (a) removal of access to all offerings within the Services; (b) deletion of Your Material and Account Information, including your personal information, log-in ID and password, and all related information, files and Materials associated with or inside your account (or any part thereof); and (c) barring of further use of the Services.
20.4 You agree that all terminations by Nialli shall be made in Nialli’s sole discretion and that Nialli shall not be liable to you or any third party for any termination of your account (and accompanying deletion of your Account Information), or access to the Services and Materials, including Your Material.
20.5 Upon expiration or termination of the Terms, you shall promptly discontinue use of the Services and Materials. However, any perpetual licenses you have granted, any of your indemnification obligations hereunder, any of Nialli’s disclaimers or limitations of damages of liabilities hereunder, and Sections 3.1, 4, 5, 8–10, 12–16, 18, 20, 23 and 24 will survive any termination or expiration of the Terms.
20.6 Upon termination of your use of the Services by you or by Nialli for any other reason other than for cause, Nialli will make reasonable effort to notify you at least thirty (30) days prior to termination, at the email address you provide Nialli as part of your registration, with instructions on how to retrieve Your Material prior to such termination.
20.7 If your group administrator terminates your access to a Service, then you may no longer be able to access Shared Material that you or other Users of the group have posted to a shared workgroup or shared workspace within that Service.
20.8 Except as otherwise stated in any Additional Terms, if any, in the event of termination by Nialli for reasons other than breach of the Terms, Nialli will provide notice pursuant to the General Terms and will provide you with a pro rata refund for the prepaid and unused portion of the Service.
21.1 The Services can be accessed from countries around the world and may contain references to Services and Materials that are not available in your country. These references do not imply that Nialli intends to announce such Services or Materials in your country.
21.2 These Services are controlled, operated and administered by Nialli Inc. from its offices in Canada. Nialli makes no representation that the Services or Materials are appropriate or available for use outside of Canada and the United States. Nialli reserves the right to block access to the Services or Materials by certain international users. If you access the Services from a location outside Canada or the United States, then you are responsible for compliance with all local Laws.
You acknowledge that the Software, Site, Services and Materials may be subject to the U.S. Export Administration Regulations and other export laws, restrictions and regulations as well as the export laws of other countries (collectively, the “Export Laws”) and that you will comply with the Export Laws. You will not ship, transfer, export or re-export the Software or Materials, directly or indirectly, to: (a) any countries that are subject to U.S. or Canadian export restrictions (currently including, but not necessarily limited to, Cuba, Iran, North Korea, Sudan and Syria) (each, an “Embargoed Country”), (b) any end user whom you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles and sounding rockets, or unmanned air vehicle systems (each, a “Prohibited Use”), or (c) any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government or similar restrictions in Canada, if any (each, a “Sanctioned Party”). In addition, you are responsible for complying with any local laws in your jurisdiction that may impact your right to import, export or use the Services, Software or Materials. You represent and warrant that (i) you are not a citizen of, or located within, an Embargoed Country, (ii) you will not use the Software, Services or Materials for a Prohibited Use, and (iii) you are not a Sanctioned Party. All rights to use the Software, Services and Materials are granted on condition that such rights are forfeited if the user fails to comply with the Terms. If Nialli has knowledge that a violation has occurred, Nialli may be prohibited from providing maintenance and support for the Services, Software or Materials.
23.1 Venue. You agree that any claim or dispute you may have against Nialli must be resolved by a court having jurisdiction in Calgary, Alberta, Canada, except as otherwise agreed by the parties in writing. You agree to submit to the personal jurisdiction of the courts having jurisdiction in Calgary, Alberta, Canada. The parties specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods.
23.2 All claims you bring against Nialli must be resolved in accordance with this section. All claims filed or brought contrary to this section shall be considered improperly filed. If you file a claim contrary to this section, Nialli may recover attorneys’ fees and costs on a full indemnity basis provided that Nialli has notified you in writing of the improperly filed claim and you have failed to properly withdraw the claim.
23.3 Notwithstanding the foregoing, in the event of your or others’ unauthorized access to or use of the Software, Services or Materials in violation of the Terms, you agree that Nialli shall be entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
24.1 English Version. The English version of the Terms will be the version used when interpreting or construing this agreement.
24.2 Notice to Nialli. Any notice provided to Nialli pursuant to the Terms should be sent to 1301 401 9thAve SW, Calgary, Alberta, Canada, T2P 3C5 Attention: Vice President, Legal and General Counsel.
24.3 Notice to You. Nialli may provide you with notices, including those regarding changes to the Terms, by email, regular mail, text message, postings on or within the Services, or other reasonable means now known or hereafter developed.
24.4 Entire Agreement. The Terms constitute the entire agreement between Nialli and you with respect to your access to or use of the Software, Services and Materials and supersede any prior agreements between you and Nialli on such subject matter.
24.5 Nonassignment. You may not assign or otherwise transfer the Terms, or any right granted hereunder, without Nialli’s written consent. Nialli’s rights under the Terms are transferrable by Nialli.
24.6 Severability. If for any reason a court of competent jurisdiction finds any provision of the Terms, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties as reflected by that provision, and the remainder of the Terms shall continue in full force and effect.
24.7 Waiver. Any failure by Nialli to enforce or exercise any provision of the Terms, or any related right, shall not constitute a waiver of that provision or right.
24.8 Report Abuse. Please report any violations of the Terms via the report abuse mechanism offered in conjunction with the specific Service in which the alleged violation occurs.
24.9 You are solely responsible for your familiarity and compliance with any laws that may prohibit you from participating in or using any part of the Software, Services or Materials.
24.10 Third-Party Acknowledgements. Portions of the Software may utilize or include third-party software and other copyrighted material. Licensing terms, acknowledgements, disclaimers, and waivers for such software and material are contained in the Intellectual Property Statement and your use of such software and material is governed by their respective terms.
Nialli Inc: 1301 401 9th Ave SW, Calgary, Alberta, Canada, T2P 3C5