Terms of Use

Welcome to HeyNearby. We want you to know and understand your rights and our rights relating to the provision of the Services (as defined below). Please review them carefully. Here are a few highlights:

  • Your privacy is critically important to us. See how we collect and use your personal information in our Privacy Policy.

  • You can cancel your usership or delete your account at any time.

  • You own your content, but give us a right to use it.

  • We expect our users to act with respect.

  • HeyNearby is not liable for your activities and no warranties are made by HeyNearby.

  • We can cancel your account if you act inappropriately.

  • We want your feedback, and you allow us to use it.

  • You agree to arbitrate if there is a dispute between us (exceptions may apply).

  • There are easy ways to reach us if you have questions or need help.

Terms of Use

The HeyNearby websites, related mobile applications and services (collectively, the “Services”) are made available to you by Nearby, Inc. (dba HeyNearby), subject to these Terms of Service (the “Terms”) and in accordance with the HeyNearby Privacy Policy (the “Privacy Policy”). More information about the Services may be found at https://heynearby.com. You agree to comply with these Terms and any supplemental terms which HeyNearby makes available to you on the Services which shall form part of the Terms. By accessing, using or uploading or downloading any information or materials to or from the Services, or by indicating your assent to these terms by creating an account, clicking “Sign up” or any similar mechanism, you are agreeing to the Terms. If you do not agree to the Terms, do not access or use the Services.

If you access or use the Services on behalf of a company or other entity, you represent that you have authority to bind such entity and its affiliates to these Terms and that it is fully binding on them. In such case, the term “you” will refer to such entity and its affiliates. If you do not have authority, you may not access or use the Services. These Terms contain disclaimers of warranties and limitations on liability that may be applicable to you.

The HeyNearby Services cannot be provided and the agreement described in these Terms of Service cannot be performed without HeyNearby processing data about you, and other HeyNearby users, including your location data. Processing of the data you share with HeyNearby, including location data, is essential to the Services which we provide and a necessary part of our performance of the agreement we have with you.

Notice Regarding Dispute Resolution: These Terms contain provisions that govern how disputes between you and HeyNearby are resolved, including an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration and limit you to claims against HeyNearby on an individual basis, unless you opt-out in accordance with the instructions below. Registration and Accounts

The Services are intended solely for persons who are 13 years old or older.

To use the Services, you must register. You agree to: (a) provide true, accurate, current and complete information about yourself (“User Data”) and (b) maintain and promptly update the User Data. You agree that HeyNearby may use your User Data to provide Services that you access or use and as otherwise set forth in these Terms. If you provide any User Data that is inaccurate or not current, or HeyNearby has reasonable grounds to suspect that such User Data is inaccurate or not current, HeyNearby has the right to suspend or terminate your account and refuse current or future use of the Services. In consideration of your use of the Services, you represent that you are not a person barred from receiving services under the laws of any applicable jurisdiction.

You are solely responsible for maintaining the confidentiality of the password associated with your account and for restricting access to your password, your computer and mobile device while logged into the Services. You accept responsibility for all activities that occur under your account or from your computer and mobile devices. We endeavor to use reasonable security measures to protect against unauthorized access to your account. We cannot, however, guarantee absolute security of your account, your Content (as defined below) or the personal information you provide, and we cannot promise that our security measures will prevent third-party “hackers” from illegally accessing the Services or its contents. You agree to immediately notify HeyNearby of any unauthorized use of your account or password, or any other breach of security, and confirm that you understand all risks of unauthorized access to User Data and any other information or content you provide to HeyNearby.

You may register for or log-in to your account via a third-party network, such as Facebook or Google. If you do so, you hereby authorize HeyNearby to pre-populate the registration and other relevant information fields of your account and/or to use such third-party credentials to log you into your account. If you connect your account to a third-party network, you agree to comply with the terms and conditions and policies applicable to such third party.

By virtue of certain of the Services connecting to the Google Places API, you hereby agree to be bound by the Google Maps/Places Additional Terms of Service (including the Google Privacy Policy) in connection with your use of such Services.

User Content and Conduct

Content

You own the information, data, text, software, photographs, graphics, messages, posts, or other materials you make available in connection with the Services (“Content”), whether publicly posted, privately transmitted, or submitted through a third party API. You grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any Content that you post on or in connection with the Services. This license ends when you delete your Content or your account unless your Content has been shared with others, and they have not deleted it.

You understand that you, and not HeyNearby, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Services. HeyNearby does not proactively and routinely screen or monitor the Content posted to the Services by others and, as such, does not guarantee the accuracy, integrity or quality of such Content. HeyNearby may, in its sole discretion, screen, monitor, refuse or remove any Content, or remove any Content that violates the Terms or is otherwise objectionable. You understand that by using the Services, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will HeyNearby be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content made available on the Services. You agree to bear all risks associated with the use of any Content available in connection with the Services, including any reliance on the accuracy, completeness, or usefulness of such Content.

You agree that HeyNearby is not responsible for, and does not endorse, Content posted on the Services. If your Content violates these Terms, you may bear legal responsibility for that Content. As between you and HeyNearby, any Content will be non-confidential and non-proprietary and we will not be liable for any use or disclosure of Content. You acknowledge and agree that your relationship with HeyNearby is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any Content does not place HeyNearby in a position that is any different from the position held by users of the general public, including with regard to your Content. Your Content will not be subject to any obligation of confidence on the part of HeyNearby other than as set forth in the Privacy Policy, and HeyNearby will not be liable for any use or disclosure of any Content you provide. You are responsible for the public nature of the content.

Conduct

Being a part of the HeyNearby community is no different than being a part of your town. We will treat each other with mutual respect (customers and merchants alike) and honor the rules. The Services are for your personal use as a customer and commercial use as a business. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell for any commercial purposes any portion of the Services, use of the Services or access to Content. You may not use the Services, or assist or encourage any other party, to engage in any of the following Prohibited Activities:

  1. Impersonating others or provide inaccurate information. While we encourage you to use your true identity on HeyNearby, you don't have to disclose your identity. We do require that you provide us with accurate and up to date information (including registration information). Also, you may not impersonate someone you aren't, and you can't create an account for someone else unless you have their express permission.

  2. Doing anything unlawful, misleading, or fraudulent or for an illegal or unauthorized purpose.

  3. Doing anything to interfere with or impair the intended operation of the Service.

  4. Copying, framing or mirroring any part of the Services;

  5. Accessing the Services to monitor its availability, performance or functionality;

  6. Permitting any third party to access the Services;

  7. Using, copying, modifying, creating a derivative work of, reverse engineering, decompiling or otherwise attempting to extract the source code of the software underlying the Services or any part thereof, unless expressly permitted or required by law, and in any case, without providing prior written notice to HeyNearby;

  8. Publishing, transmitting, distributing or storing content, material, information or data that: (1) is illegal, obscene, defamatory, threatening, harassing, abusive, or hateful or that advocates violence; (2) is harmful to or interferes with the Services or any third party’s networks, equipment, applications, services or websites (e.g., viruses, worms, Trojan horses, etc.); (3) infringes, dilutes, misappropriates or otherwise violates any privacy, intellectual property, publicity or other personal rights including, without limitation, copyrights, patents, trademarks, trade secrets or other proprietary information (including unauthorized use of domain names); or (4) is fraudulent or contains false, deceptive or misleading statements, claims or representations (such as “phishing”);

  9. Attempting to disrupt, degrade, impair or violate the integrity or security of the Services or the computers, services, Accounts or networks of any other party (including, without limitation, “hacking,” “denial of service” attacks, etc.), including any activity that typically precedes attempts to breach security such as scanning, probing or other testing or vulnerability assessment activity, or engaging in or permitting any network or hosting activity that results in the blacklisting or other blockage of HeyNearby internet protocol space;

  10. Avoiding payment of charges or fees payable by you with respect to the Services;

  11. Committing any act that may be harmful to minors;

  12. Distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”;

  13. Using any automated system, including, without limitation, “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to HeyNearby than a human can reasonably produce in the same period of time by using a conventional web browser;

  14. Taking any action that imposes, or may impose, at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;

  15. Collecting or harvesting any information relating to an identified or identifiable individual, including account names and information about users of the Services, from the Services;

  16. Using the Services for any commercial solicitation purposes;

  17. Accessing any content on the Services through any technology or means other than those provided or authorized by the Services;

  18. Giving excessive, repeated kudos to your own business or recruiting other users to do so.

  19. Submitting to the Services or to HeyNearby any information that may be protected from disclosure by applicable law;

  20. Bypassing the measures we may use to prevent or restrict access to the Services, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein;

  21. Violating any applicable law, statute, ordinance or regulation, or encouraging any conduct that could constitute a criminal offense or give rise to civil liability;

  22. Removing any copyright, trademark or other proprietary rights notices contained in or on the Services; or

  23. Executing any form of network monitoring or running a network analyzer or packet sniffer or other technology to intercept, decode, mine or display any packets used to communicate between the Service’s servers or any data not intended for you.

You are granted a limited, non-exclusive right to create a text hyperlink to the Services, provided such link does not portray HeyNearby or any of its products or services in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any pornographic, illegal, offensive, harassing or otherwise objectionable material.

You understand that you are responsible for any charges associated with sending data via your device.

You represent and warrant that: (i) you are authorized to create your account, whether individually or on behalf of an organization; (ii) you own the Content posted by you on or through the Services or otherwise have the right to grant the rights and licenses set forth in these Terms; (iii) the posting and use of your Content on or through the Services does not and will not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy and data protection rights, publicity rights, copyrights, trademark and/or other intellectual property rights; and (iv) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Services.

Permissions

As part of our agreement, you also give us permissions that we need to provide the Service.

  1. We do not claim ownership of your content, but you grant us a license to use it. Nothing is changing about your rights in your content. We do not claim ownership of your content that you post on or through the Service. Instead, when you share, post, or upload content that is covered by intellectual property rights (like photos or videos) on or in connection with our Service, you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). You can end this license anytime by deleting your content or account. However, content will continue to appear if you shared it with others and they have not deleted it.

  2. Permission to use your username, profile picture, and information about your relationships and actions with accounts, users, and businesses. You give us permission to show your username, profile picture, and information about your actions (such as favoriting, kudos, pinning, sharing) or relationships (such as adding friends) next to or in connection with accounts, businesses, feeds, offers, and other content that you follow or engage with that are displayed through the Services, without any compensation to you.

  3. You agree that we can download and install updates to the Service on your device.

Rights We Retain

  1. If you select a username or similar identifier for your account, we may change it if we believe it is appropriate or necessary (for example, if it infringes someone's intellectual property or impersonates another user or is potentially offensive).

  2. If you use content covered by intellectual property rights that we have and make available in our Service (for example, images, designs, videos, or sounds we provide that you add to content you create or share), we retain all rights to our content (but not yours).

  3. You can only use our intellectual property and trademarks or similar marks with our prior written permission.

  4. We can remove any content or information you share on the Service if we believe that it violates these Terms of Use, our policies, or we are permitted or required to do so by law. We can refuse to provide or stop providing all or part of the Service to you (including terminating or disabling your account) immediately to protect our community or services, or if you create risk or legal exposure for us, violate these Terms of Use or our policies, if you repeatedly infringe other people's intellectual property rights, or where we are permitted or required to do so by law. If you believe your account has been terminated in error, or you want to disable or permanently delete your account, contact us via email at hello@heynearby.com.

  5. Content you delete may persist for a limited period of time in backup copies and will still be visible where others have shared it.

Interactions with Users

The Services function as a venue to connect users in a virtual information place. As a neutral facilitator, HeyNearby is not directly involved in the actual interactions between users of the Services. As a result, HeyNearby has no control over the truth, accuracy, quality, legality, or safety of postings made by users of the Services. HeyNearby shall have no responsibility to confirm the identity of users. HeyNearby shall also have no responsibility to confirm or verify the qualifications, background, or abilities of users of the Services. You shall at all time exercise common sense and good judgment when dealing with any user of the Services.

If you elect to use our features to inform your contacts about the Services, track your activities via the app, or share your information with others, HeyNearby may require you to provide contact information. HeyNearby may contact that friend via a one-time email or text message. You represent that you are authorized to provide any third party contact information that you provide to HeyNearby, that you are authorized to use such information to contact (including for HeyNearby to contact on your behalf) the third party and that HeyNearby may process it pursuant to the Privacy Policy.

Third Parties

Third party products and services made available on the Services are made and offered directly by the applicable third party. When you pursue or purchase any such product or service, you acknowledge that you are contracting directly with such third party and not with HeyNearby. Your interaction with, or participation in promotions of, third parties found on or through the Services, including payment and delivery of goods or services, and any other terms, are solely between you and such third party. You are not obligated to use or transact business with any third party that appears on the Services.

YOU AGREE THAT HEYNEARBY SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND INCURRED BY YOU AS THE RESULT OF ANY OF YOUR DEALINGS WITH THIRD PARTY SERVICE PROVIDERS AND BUSINESSES AVAILABLE THROUGH THE SERVICES.

HeyNearby or third parties may provide links to other internet sites, apps, or resources through the Services. HeyNearby does not endorse and is not responsible or liable for any content, information, advertising, products or other materials on or available from such sites, apps, or resources. You acknowledge and agree that HeyNearby is not responsible for the availability of such external sites, apps, or resources.

Electronic Communications

The Services may provide you with the ability to send or post messages to businesses, users, forums or chat rooms, speak via internet voice connections or send similar messages and communications to third party service providers, advertisers, your personal contacts, other users and/or HeyNearby. You agree to use communication methods available on the Services only to send communications and materials related to the subject matter for which HeyNearby provided the communication method, and you further agree that all such communications by you shall be deemed your Content and shall be subject to and governed by the Terms and applicable law (including laws regulating direct marketing communications with which you will need to comply with, as applicable). By using communications methods available on the Services, you agree that (a) all communications methods constitute public, and not private, means of communication between you and the other party or parties, (b) communications sent to or received from third party service providers, businesses or other third parties are not endorsed, sponsored or approved by HeyNearby (unless expressly stated otherwise by HeyNearby) and (c) communications are not routinely pre-reviewed, post-reviewed, screened, archived or otherwise monitored by HeyNearby in any manner, though HeyNearby reserves the right to do so at any time at its sole discretion. You agree that all notices, disclosures and other communications that we provide to you electronically shall satisfy any legal requirement that such communications be in writing.

Paid Plans

HeyNearby web and mobile apps are free for customers to use and any business may sign up for a free merchant plan. Businesses may also sign up for paid plans at HeyNearby in order to access additional services.

Payments

To pay any fee, you must designate and provide information about your preferred payment method (e.g., credit card) (the “Payment Method”). If you provide your payment information, you authorize us and certain third party service providers, payment card networks and payment processors to receive, store and encrypt your payment information. You may switch to a different Payment Method or update your information by accessing your account. No refunds or credits will be provided by HeyNearby, other than as set forth in these Terms. If your payment provider determines that there are fraudulent charges on your account resulting from use of your Payment Method at the Services, please contact us immediately via hello@heynearby.com.

Fees

In order to access certain functionality of the Services, businesses may wish to sign up for a paid plan. Plan fees, along with any required taxes, may be paid on a monthly or annual basis. All fees are payable in advance. Users changing from monthly to annual userships will have the annual rates take effect at the beginning of the next billing date. If you upgrade your plan or add new categories of service to your account, such changes may result in a new billing date. You agree to pay the plan fees, and other charges you incur in connection with your HeyNearby account, whether on a one-time or subscription basis. HeyNearby reserves the right to increase plan fees, any associated taxes, or to institute new fees at any time upon reasonable advance notice.

Auto-Renewal

Paid plan fees will be billed automatically at the start of your monthly or annual period, as applicable. These fees will auto-renew until your plan is downgraded or terminated. Your plan fee will be the same as your initial charges unless you are otherwise notified in advance. You may cancel your paid plan at any time, as described below.

Cancellation of Paid Plans

If you signed up on HeyNearby.com or through the mobile app, you may cancel your paid plan by visiting your “Plans” page and downgrading to a free plan. Alternately, you can select a smaller plan more suitable to your needs. The cancellation of a paid plan will go into effect at the end of your current billing cycle. When your paid plan ends, your account will remain and become a free plan. You can renew your subscription at any time without opening a new account, although the paid plan fees may have increased. You can delete your account at any time by notifying us at hello@heynearby.com.

Free Trials

Your paid plan may start with a free trial. The free trial period for any subscription will last for the period of time specified when you signed up. Free trials may not be combined with certain other offers, as specified. If you begin your subscription with a free trial, we will begin billing your Payment Method for monthly usership fees at the end of the free trial period of your subscription unless you cancel your paid plan prior to the end of the free trial period. Your Payment Method will be authorized for up to approximately one month of service as soon as you register for a free trial. In some instances, your available balance or credit limit may be reduced to reflect the authorization; however, no charges will be made against the Payment Method unless you do not cancel prior to the end of your free trial period. You may cancel your paid plan at any time by going to your account settings.

Proprietary Rights

You acknowledge and agree that the Services, any necessary software used in connection with the Services (if any), any aggregated data based on Content on the Services, and any Content available or made available on the Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly permitted by applicable law or authorized by HeyNearby or applicable third party service providers or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services, the software or Content available on the Services (other than Content that you may submit), in whole or in part.

HeyNearby grants you a personal, revocable, non-transferable, non-sub-licensable and non-exclusive right and license to access and use the Services; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Services, except where permitted by law. You agree not to access the Services by any means other than through the interfaces that are provided by HeyNearby.

The term HeyNearby, the HeyNearby logo and other HeyNearby logos and product and service names are the exclusive trademarks of, and are owned by, Nearby Inc., and you may not use or display such trademarks in any manner without HeyNearby’s prior written permission. Any third party trademarks or service marks displayed on the Services are the property of their respective owners.

HeyNearby reserves all rights not expressly granted hereunder.

Your Feedback

We welcome your comments, feedback, suggestions, and other communications regarding the Services and the information and services we make available through the Services (collectively, “Feedback”). If you provide Feedback, you hereby grant to HeyNearby a worldwide, non-exclusive, transferable, assignable, sub-licensable, perpetual, irrevocable, royalty-free license to copy, distribute, create derivative works of, publicly display and perform and otherwise exploit such Feedback and to use, make, have made, sell, offer for sale, import and export products and services based on such Feedback. For this reason, we ask that you not send HeyNearby any Feedback that you do not wish to license to us as set forth above.

Disclaimer of Warranties and Liability

WE ALSO DON’T CONTROL WHAT PEOPLE AND OTHERS DO OR SAY, AND WE AREN’T RESPONSIBLE FOR THEIR (OR YOUR) ACTIONS OR CONDUCT (WHETHER ONLINE OR OFFLINE) OR CONTENT (INCLUDING UNLAWFUL OR OBJECTIONABLE CONTENT). WE ALSO AREN’T RESPONSIBLE FOR SERVICES AND FEATURES OFFERED BY OTHER PEOPLE OR COMPANIES, EVEN IF YOU ACCESS THEM THROUGH OUR SERVICE.

OUR RESPONSIBILITY FOR ANYTHING THAT HAPPENS ON THE SERVICE (ALSO CALLED “LIABILITY”) IS LIMITED AS MUCH AS THE LAW WILL ALLOW. IF THERE IS AN ISSUE WITH OUR SERVICE, WE CAN’T KNOW WHAT ALL THE POSSIBLE IMPACTS MIGHT BE. YOU AGREE THAT WE WON’T BE RESPONSIBLE (“LIABLE”) FOR ANY LOST PROFITS, REVENUES, INFORMATION, OR DATA, OR CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS, EVEN IF WE KNOW THEY ARE POSSIBLE. THIS INCLUDES WHEN WE DELETE YOUR CONTENT, INFORMATION, OR ACCOUNT.

BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS OF LIABILITY ABOVE, SUCH AS EXCLUSIONS FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN ENTERING INTO THIS RELEASE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE THE BENEFITS OF, SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, (AND ANY SIMILAR LAW OF ANY STATE, COUNTRY OR TERRITORY), WHICH PROVIDES AS FOLLOWS: “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.”

HEYNEARBY DOES NOT ENDORSE YOUR CONTENT OR ANY OTHER USER’S CONTENT AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT ON THE SERVICES.

THE COMPANY’S MAXIMUM AGGREGATE LIABILITY TO YOU PURSUANT TO THESE TERMS SHALL NOT EXCEED THE GREATER OF EITHER (a) FIFTY DOLLARS ($50) OR (b) THE AMOUNT OF FEES PAID BY YOU TO HEYNEARBY IN THE 12-MONTHS PRIOR TO DATE THE CLAIM.

Indemnity

You agree to defend (at our request), indemnify and hold HeyNearby and its subsidiaries, affiliates, officers, agents, representatives, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Content you submit, post, transmit or otherwise seek to make available through the Services, your use of the Services, your connection to the Services, your violation of the Terms, your violation of any data protection or privacy laws, or your violation of any rights of another person or entity. You will cooperate as required by us in the defense of any claim. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without our prior written consent. Your rights with respect to HeyNearby are not modified by the foregoing indemnification if the laws of your country of residence, applicable as a result of your use of our Services, do not permit it.

Notice for California Users

Under California Civil Code Section 1789.3, California Services users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.

Dispute Resolution

Arbitration

The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through good-faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. Except for disputes relating to HeyNearby’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents) or if you opt out of this agreement to arbitrate, all claims arising out of or relating to this Agreement and your use of the Services shall be finally settled by binding arbitration administered by JAMS in accordance with its provisions and procedures for consumer-related disputes, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with this Agreement. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, HeyNearby will pay the additional cost. You and HeyNearby hereby expressly waive trial by jury. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if HeyNearby is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act.

The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court.

Class-Action Waiver

The parties further agree that any arbitration shall be conducted in their individual capacities only, and not as a class action or other representative action. If any court or arbitrator determines that the class-action waiver set forth in this section is void or unenforceable for any reason, or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

Exception—Litigation of Small-Claims-Court Claims

Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.

Thirty-Day Right to Opt Out

You have the right to opt out and not be bound by the arbitration- and class-action-waiver provisions set forth in this section by sending written notice of your decision to opt out to the following address: Nearby, Inc., Attn: Conrad Lai, 1981 N Broadway Suite 200, Walnut Creek, CA 94596. The notice must be sent within 30 days of registering to use the Services; otherwise, you shall be bound to arbitrate disputes in accordance with these Terms. If you opt out of these arbitration provisions, HeyNearby also will not be bound by them. In addition, if you elect to opt out of these arbitration provisions, HeyNearby may terminate your use of the Services.

Time Limitation on Claims

You agree that any claim you may have arising out of or related to your relationship with HeyNearby and these Terms must be filed within one year after such claim arose; otherwise, your claim is permanently barred.

Choice of Law and Forum

Any action related to the Terms, Content, the Services, and your relationship with the HeyNearby shall be governed by, and construed and interpreted in accordance with, the laws of the State of California without regard to its conflict of laws principles AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. Subject to the Section entitled “Dispute Resolution”, the parties irrevocably consent to bring any action to enforce this Agreement in the federal or state courts embracing San Francisco, California and you consent to the exclusive jurisdiction of the federal or state courts embracing San Francisco, California. If any party hereto brings any suit or action against another for relief, declaratory or otherwise, arising out of these Terms, the prevailing party will have and recover against the other party, in addition to all court costs and disbursements, such sum as the court may adjudge to be reasonable attorneys’ fees. Except to the extent prohibited by applicable law, the parties agree that any claim or cause of action arising out of or related to use of the Services or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.

United States Operation

This Services are controlled by HeyNearby from its offices within the United States of America. HeyNearby makes no representation that the Content or the Services are appropriate or available for use in other locations. Access to or use of the Content or the Services from territories where such access or use is illegal is prohibited. Those who choose to access the Services from locations outside of the United States do so on their own initiative and are responsible for compliance with applicable local laws. You may not use or export the Content in violation of U.S. export laws and regulations.

Termination

You agree that HeyNearby may, under certain serious circumstances and without prior notice, immediately terminate your account and/or access to the Services. Cause for such termination shall include, but not be limited to, (a) breaches or violations of the Terms or other incorporated agreements, policies or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Services (or any portion thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, and/or (g) nonpayment of any fees owed by you in connection with the Services. Termination of your account may include (x) removal of access to all offerings within the Services, (y) deletion of your information, files and Content associated with your account, and (z) barring of further use of the Services. Further, you agree that all terminations for cause shall be made in HeyNearby’s sole discretion and that HeyNearby shall not be liable to you or any third party for any termination of your account or access to the Services. The following Sections shall survive termination of your account and/or the Terms: User Content Submitted to the Services, Proprietary Rights, Your Feedback, Disclaimer of Warranties and Liability, Indemnity, Applicable Laws and General.

General

You agree that no joint venture, partnership, joint controllership, employment or agency relationship exists between you and HeyNearby as a result of the Terms or your use of the Services. The Terms constitute the entire agreement between you and HeyNearby with respect to your use of the Services. The failure of HeyNearby to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. You may not assign, delegate or otherwise transfer your account or your obligations under these Terms without the prior written consent of HeyNearby. HeyNearby has the right, in its sole discretion, to transfer or assign all or any part of its rights under these Terms and will have the right to delegate or use third party contractors to fulfill its duties and obligations under these Terms and in connection with the Services. HeyNearby’s notice to you via email, regular mail or notices, posts, or links on the Services shall constitute acceptable notice to you under the Terms. A printed version of the Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Section titles and headings in the Terms are for convenience only and have no legal or contractual effect. Any rights not expressly granted herein are reserved.

Modification of the Terms and Services

Certain provisions of the Terms may be supplemented or superseded by expressly designated legal notices or terms located on particular pages on the Services. HeyNearby reserves the right to update the Terms at any time and for any reason in its sole discretion. HeyNearby will notify you of any material changes to the Terms or to any service or other features of the Services. By continuing to access or use the Services after we have provided you with notice of a modification, you are agreeing to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Services.

HeyNearby and its third party service providers may make improvements and/or changes in the Services, products, services, mobile applications, features, programs, and prices described at any time and for any reason in its sole discretion. The mobile application may download and install upgrades, updates and additional features in order to improve, enhance, and further develop the Services. HeyNearby reserves the right at any time to modify or discontinue, temporarily or permanently, the Services or any portion thereof with or without notice. You agree that HeyNearby shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.

Support and Questions

We will respond to any questions regarding the Services and these Terms via hello@heynearby.com.