Last updated December 5, 2018
nerByte GmbH (as "nerByte", "We" or "Us") develops and publishes apps for mobile devices, such as Horoscope (the "Service").
This Agreement requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute.
End User License Agreement
Subject to the terms of this Agreement, nerByte grants you a non-transferable, non-exclusive, license to (a) use for your personal use, and (b) copy, for the purpose of downloading, installing and executing, the number of copies for which you are authorized by the download site of each App on a mobile device that you own or control for your use (the "License").
The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit any App; (b) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Apps, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) you shall not access any App in order to build a similar or competitive service or application; (d) except as expressly stated herein, no part of any App may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, or (e) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in any App. Any future release, update, or other addition to functionality of any App (including in-App purchases, additional levels, and gameplay enhancements) shall be subject to the terms of this Agreement, unless otherwise provided in terms associated with such addition. All copyright and other proprietary notices on any App content must be retained on any copies.
Your personal data will be treated in accordance with the provisions of the Data Protection Act. Data such as gender, place of birth, time of birth and name will be used to calculate your zodiac sign and will not be passed on to third parties.
You are solely responsible for compliance with all applicable laws, including without limitation export and import regulations.
nerByte reserves the right, at any time, to modify, suspend, or discontinue the Apps or any part thereof with or without notice. You agree that nerByte will not be liable to you or to any third party for any modification, suspension, or discontinuance of any App or any part thereof.
Apps provided to you are licensed to you and not sold. nerByte (and its licensors, where applicable) own all right, title and interest, including all related intellectual property rights, in and to all Apps, excluding your User Content (defined below). This Agreement is not a sale and does not convey to you any rights of ownership in or related to any App. The nerByte name, logo, and the product names associated with the Apps belong to nerByte (or its licensors, where applicable), and no right or license is granted to use them by implication, estoppel or otherwise. nerByte (and its licensors, where applicable) reserve all rights not granted in this Agreement.
When you start or stop an App, it may display an ad. During gameplay, banner and/or interstitial ads may be displayed.
Our analyses and horoscopes contain recommendations derived from astrological or numerological rules. The application of the recommendations is your sole responsibility. We assume no liability for any disadvantages that may arise as a result.
"User Content" of a user means any and all content that such user uploads, distributes, or otherwise provides via any App. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by nerByte. nerByte is not obligated to backup any User Content and User Content may be deleted at any time. You are solely responsible for creating backup copies of your User Content if you desire.
By uploading, distributing, or otherwise using your User Content with any App, you automatically grant, and you represent and warrant that you have the right to grant, to nerByte an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license, with the right to grant sublicenses, to reproduce, distribute, publicly display, publicly perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, solely to display your User Content on any App.
If you provide nerByte any feedback or suggestions ("Feedback"), you hereby assign to nerByte all rights in the Feedback and agree that nerByte shall have the right to use such Feedback and related information in any manner it deems appropriate. nerByte will treat any Feedback you provide to nerByte as non-confidential and non-proprietary. You agree that you will not submit to nerByte any information or ideas that you consider to be confidential or proprietary.
Acceptable Use Policy
The following sets forth nerByte's "Acceptable Use Policy":
- You agree not to use any App to upload, distribute, or otherwise use any User Content (a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) that is tortious, trade libelous, defamatory, false, or intentionally misleading, (c) that is harassing, abusive, threatening, harmful, vulgar, obscene, or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual, or is otherwise objectionable, (d) that is harmful to minors in any way; (e) that constitutes unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; or (f) that violates of any law, regulation, or contractual obligations.
- You agree not to use any App to: (a) upload or distribute any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (b) collect information or data regarding other users, including e-mail addresses, without their consent (e.g., using harvesting bots, robots, spiders, or scrapers); (c) disable, overly burden, impair, or otherwise interfere with servers or networks connected to Apps (e.g., a denial of service attack); (d) attempt to gain unauthorized access to the Site or App or servers or networks connected to Apps (e.g., through password mining); or (e) interfere with another user's use and enjoyment of any App.
We reserve the right (but have no obligation) to review any User Content in our sole discretion. We may remove or modify your User Content at any time for any reason in our sole discretion with or without notice to you.
Term and Termination
This Agreement commences on the date you accept this Agreement (as described in the preamble) and will remain in full force and effect while you use the App, unless earlier terminated in accordance with this Agreement.
Notwithstanding the forgoing, if you used any App prior to the date you accepted this Agreement (as described in the preamble), you hereby acknowledge and agree that this Agreement commences on the date you first use any App (which ever is earlier and which may be prior to the Agreement Version Date) and will remain in full force and effect while you use any App, unless earlier terminated in accordance with this Agreement.
nerByte may (a) suspend your rights to use any App, and/or any related services or (b) terminate this Agreement, at any time for any reason at our sole discretion with or without notice to you, including if we in good faith believe you have violated the Acceptable Use Policy or any other provision of this Agreement. Without limiting the foregoing, nerByte reserves the right to terminate its Agreement with any user who repeatedly infringes third party copyright rights upon prompt notification to nerByte by the copyright owner or the copyright owner's legal agent.
Upon termination of this Agreement, your right to use the App will automatically terminate immediately. You understand that any termination may involve deletion of your User Content associated therewith from our live databases. nerByte will not have any liability whatsoever to you for any termination of this Agreement, including deletion of your User Content. Even after this Agreement is terminated, the provisions of this Agreement will remain in effect.
You agree to defend, indemnify and hold harmless nerByte (and its suppliers) from and against any claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) brought by third parties resulting from or relating to: (i) your use of any App, (ii) your User Content, or (iii) your violation of this Agreement. nerByte reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify nerByte and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of nerByte. nerByte will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
You acknowledge and agree that the availability of the App is dependent on the third party from which you received App, e.g., the Apple iPhone or Android stores ("Application Store"). You acknowledge that this Agreement is between you and nerByte and not with the Application Store. The Application Store is not responsible for the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). You agree to pay all fees charged by the Application Store in connection with App (if any). You agree to comply with, and your license to use App is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the Application Store's terms and policies) when using App. You acknowledge that the Application Store (and its subsidiaries) are third party beneficiaries of this Agreement and will have the right to enforce this Agreement.
Third Party Services
An App may contain User Content provided by other users of the App. nerByte is not responsible for and does not control User Content. nerByte has no obligation to review or monitor, and does not approve, endorse, or make any representations or warranties with respect to User Content. You use all User Content and interact with other users at your own risk. Your interactions with other users are solely between you and the other user and we are under no obligation to become involved. You agree that nerByte will not be responsible for any liability incurred as the result of any such interactions.
APPS ARE PROVIDED "AS-IS" AND AS AVAILABLE AND nerByte (AND ITS SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. NERBYTE (AND ITS SUPPLIERS) MAKE NO WARRANTY THAT ANY APP: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
Limitation on Liability
IN NO EVENT SHALL NERBYTE (OR ITS SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR NERBYTE'S PRIVACY PRACTICES, ANY APP, EVEN IF NERBYTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, ANY APP ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NERBYTE'S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR NERBYTE'S PRIVACY PRACTICES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE AMOUNT YOU'VE PAID NERBYTE IN THE PRIOR 12 MONTHS (IF ANY). IN NO EVENT SHALL NERBYTE'S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
You agree to pay all fees and applicable taxes incurred by you or anyone making purchases through the App. nerByte may revise the pricing for the goods and services offered to you through the App at any time. YOU ACKNOWLEDGE THAT nerByte IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL ITEMS WHEN YOU CLOSE YOUR ACCOUNT OR WHEN YOU CEASE TO USE THE APP
Changes to this Agreement
This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by prominently posting notice of the changes on our Site. Any changes to this Agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Apps. Continued use of our Apps following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. The date on which the latest update was made is indicated at the top of this document. We recommend that you print a copy of this Agreement for your reference and revisit this webpage from time to time to ensure you are aware of any changes.
If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
Apple Application Store Additional Terms and Conditions
The following additional terms and conditions apply to you if you are using an App from the Apple Application Store.
nerByte and you acknowledge that this Agreement is concluded between nerByte and you only, and not with Apple, and nerByte, not Apple, is solely responsible for App and the content thereof. To the extent this Agreement provides for usage rules for App that are less restrictive than the Usage Rules set forth for App in, or otherwise is in conflict with, the Application Store Terms of Service, the more restrictive or conflicting Apple term applies.
Scope of License
The license granted to you for App is limited to a non-transferable license to use App on an iOS Product that you own or control and as permitted by the Usage Rules set forth in the Application Store Terms of Service.
Maintenance and Support
nerByte is solely responsible for providing any maintenance and support services with respect to App, as specified in this Agreement (if any), or as required under applicable law. nerByte and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to App.
nerByte is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of App to conform to any applicable warranty, you may notify Apple, and Apple may refund the purchase price for App to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be nerByte's sole responsibility.
nerByte and you acknowledge that nerByte, not Apple, is responsible for addressing any claims of you or any third party relating to App or your possession and/or use of App, including, but not limited to: (i) product liability claims; (ii) any claim that App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit nerByte's liability to you beyond what is permitted by applicable law.
Intellectual Property Rights
nerByte and you acknowledge that, in the event of any third party claim that App or your possession and use of App infringes that third party's intellectual property rights, nerByte, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Third Party Terms of Agreement
You must comply with applicable third party terms of agreement when using App.
Third Party Beneficiary
nerByte and you acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
Company: nerByte GmbH
Address: Brötzenberger Strasse 17-19/4/3; 2201 Gerasdorf; Austria
nerByte Website: https://www.nerByte.com
Horoscope Website: https://www.HoroscopeCompany.com