1. Introduction, Definitions and Acceptance
“Device” – the handheld or tablet device onto which you downloaded the Application and are using the Nirvana Service.
“End User License Agreement” or “EULA” is an alternative name for these TOU, but only in the context of the Application that you downloaded onto your Device.
“Nirvana” refers to Nirvanahq Inc., a duly incorporated company in the province of Quebec, Canada. Where the present Policy refers to “Nirvana”, it may refer to Nirvana or its employees, officers, directors, subcontractors, agents or representatives, depending on the context. In this TOU, a Website visitor or Service user may be referred to as “you”. If you have upgraded to Nirvana Pro, you may also be referred to as a “Customer” (and awesome!).
“Service” is the software service that Nirvana has developed to help you GTD® that you may sign up for, access and use either through the Website or the Application. It comes in two flavours, the free and Pro versions. The Pro version may be referred to as “Nirvana Pro”. If you are using the Service, you may be said to have an “Account”.
“Website” is the website of Nirvana located at https://nirvanahq.com/, and includes all subdomains, present and future. These subdomains include but are not limited to https://focus.nirvanahq.com/, which is where you can access your Account and use the Service on the Web.
By visiting the Website, using the Service on the Website, and / or installing, using or accessing the Application on your Device, you hereby accept to be bound by these TOU or EULA without qualification. In English, that means you agree to these TOU as if they were a contract, no matter how you interact with Nirvana. In fact, the TOU are a contract! If you don’t agree to be bound by this contract between you and Nirvana, don’t use the Service and delete the Application from your Device (if you have downloaded it).
These TOU were last modified on September 1, 2015. Nirvana reserves the right, at any time and without prior notice, to modify or replace any portion of the TOU. Any changes to the TOU can be found at this URL. It is your responsibility to check the TOU periodically for changes. Your use of the Service following any changes to the TOU constitutes acceptance of those changes. If there are any significant changes to the TOU that materially affect your relationship with Nirvana, you will be notified upon logging-in to the Service or via email.
If you have any questions about these TOU, please contact:
Nirvana Legal Services
Or by email firstname.lastname@example.org
2. General Code of Conduct for Use of the Website or Service
By visiting the Website and / or using the Service, you agree to:
(i) Not use the Website or Service in any manner that in any way violates these TOU;
(ii) Not use the Website or Service in any manner that violates any intellectual property rights of any third party;
(iii) Not use the Website or Service in any manner to propagate spam, including but not limited to unsolicited advertising or bulk electronic mail or messages, including to link to a spam or phishing website;
(iv) Not use the Website or Service in any manner to propagate software viruses, Trojan horses, worms, or any other malicious or non-malicious computer code, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment in any form whether belonging to Nirvana or a third party, or to damage or obtain unauthorized access to any system, data, password or other information (whether Personal Information or not) of Nirvana, other Website or Service users, or any other third party;
(v) Not: (1) take any action that imposes or may impose (as determined by Nirvana in its sole discretion) an unreasonable or disproportionately large load on Nirvana’s (or its third party providers’) infrastructures; (2) interfere or attempt to interfere with the proper functioning of the Website or Service or any activities conducted on the Website or Service; (3) bypass any measures Nirvana may use to prevent or restrict access to the Website or Service or any element thereof; (4) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Website or Application; or (5) harvest or scrape any content from the Website or Application in an unreasonable manner;
(vi) Use the Website or Service in compliance with all applicable local, state / provincial, national, and international laws.
3. Use of the Application
a. The Application is licensed, not sold. Nirvana grants you the non-exclusive, non-transferable, non-sublicensable, limited right and license to install and use the Application solely and exclusively for your personal use on the Device, or the use of any other third party with access to the Device that you control, and as permitted by the Usage Rules set forth in the App Store Terms and Conditions for the iOS Application or the Google Play Terms of Service for the Android Application;
b. You may not use the Application in any manner that could damage, disable, overburden, or impair the Application (or servers or networks connected to the Application), nor may you use the Application in any manner that could interfere with any other party’s use and enjoyment of the Application (or servers or networks connected to the Application).
c. You agree that you are solely responsible for (and that Nirvana has no responsibility to you or to any third party for) your use of the Application, any breach of your obligations under the TOU, and for the consequences (including any loss or damage which Nirvana may suffer) of any such breach. Where a third party uses the Application on your Device, you are solely responsible for conforming these TOU and any breach thereof shall be your responsibility.
b. By installing, accessing or using the Application or Service, you consent to those information collection and usage terms.
5. Accessing and Downloading the iOS Application from the Apple iTunes Store, and Related Acknowledgements
a. You acknowledge and agree that (i) these TOU are concluded between you and Nirvana only, and not Apple, and (ii) Nirvana, not Apple, is solely responsible for the Application and content thereof. Your use of the Application must comply with the Apple App Store Terms and Conditions, which you are responsible to review from time to time.
b. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
c. Apple will have no warranty obligation whatsoever with respect to the Application. As between Nirvana and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Nirvana, or as further specified and limited hereinafter.
d. You and Nirvana acknowledge that, as between Nirvana and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the Application or your possession and use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
e. You and Nirvana acknowledge that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Nirvana, not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim, as specified in section 3 above.
f. You and Nirvana acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these TOU as related to your license of the Application, and that, upon your acceptance of these TOU, Apple will have the right (and will be deemed to have accepted the right) to enforce these TOU as related to your license of the Application against you as a third party beneficiary thereof.
g. You acknowledge 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.
h. Without limiting any other of these TOU, you must comply with all applicable third party terms of agreement when using the Application.
6. Accounts and Passwords
In order to use the Service, you will be required to open an Account by submitting a valid email address under your control and choosing a password. It is your responsibility to create a password of sufficient strength that cannot easily be discovered by third parties. It is strongly suggested that you log out of your Account at the end of every session, or not leave a logged-in Account unattended for any period of time. Nirvana will not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from your failure to log out at the end of the session, an unattended logged-in session, or a third party using the Service with your Account information by accessing your Account through any other means, and disclaims any responsibility in this regard.
7. Nirvana Pro and Subscription Payment Information
For the purposes of billing of your Subscription, a month is calculated from the day the Subscription was originally purchased through to the end of the day prior to the same day in the following calendar month. So for example if you purchased your monthly Subscription on September 10th, the current month goes through to the end of October 9th. A year is calculated from the day the license was originally purchased through to the end of the day prior to the same day in the following calendar year. So for example if you purchased your annual Subscription on September 10th, 2015, the current year goes through to the end of September 9th, 2016. The payment period of your Subscription, whether a month or a year, shall be referred to in the present TOU as a “Billing Period”.
Your Subscription recurs automatically at the end of every Billing Period. Just so we’re clear, you will be charged again if you don’t cancel in time. If you wish to cancel your Subscription, you must do so prior to the end of the current Billing Period so that your credit card or other payment method will not be charged again. Please refer to the section “Cancellation of Your Subscription” below for further information and instructions.
7a. Payment Processing
7b. Prices and Refunds
Pricing of the Subscriptions can be found on the Upgrade page. All prices are firm and include all applicable taxes, though the price may be reduced by use of a valid coupon. Prices are in American dollars, which may be converted to other currencies by the Payment Processor at the time of payment processing, depending on your country of origin and / or credit card account agreement, or the terms of your account of other payment method.
In the event that a Subscription is mistakenly listed at an incorrect price or a coupon malfunctions, Nirvana reserves the right to refuse or cancel any orders placed for a Subscription listed at the incorrect price or affected by a malfunctioning coupon. Nirvana reserves the right to refuse or cancel any such orders whether or not the order has been confirmed and the Customer's credit card or other payment method. If the Customer has already been charged for the purchase and the order is cancelled, Nirvana shall issue a credit to the credit card or other payment method used to make the purchase in the amount of the incorrect price (plus any taxes).
Please note that Nirvana will not issue any refund or pro-rated refund if a Customer chooses to stop using Nirvana Pro in the middle of a Billing Period. Nirvana will waive this practice under exceptional circumstances, however, but at Nirvana’s sole discretion.
7c. Cancellation of Your Subscription
As already mentioned, your Subscription will recur automatically unless it is canceled as per this section of the TOU. Your Subscription can be cancelled by logging into the Service, and choosing “My Account” from the Settings menu. At that point, you may either cancel your Account or downgrade to the free version of the Service, by following the relevant instructions. Either one of these actions will cancel your Subscription and avoid being billed for the subsequent Billing Period.
You must cancel your Subscription at least 24 hours prior to the expiry of the current Billing Period to avoid your credit card or other payment method being charged for the subsequent Billing Period.
8. Proprietary Rights
You acknowledge that (a) the Website and Application contains proprietary and confidential information that is protected by applicable intellectual property and other laws, and (b) Nirvana and/or third parties own all right, title and interest in and to the Application and Website and content, excluding content provided by you, that may be presented or accessed through the Application and Website, including without limitation all Intellectual Property Rights therein and thereto. The Application is being licensed to you and you hereby acknowledge that no title or ownership in the Application is being transferred or assigned and these TOU should not be construed as a sale of any rights in the Application. All rights not specifically granted under these TOU are reserved by Nirvana and its licensors. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
You agree that you will not, and will not allow any third party, to (i) copy, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Application or Application or content that may be presented or accessed through the Application for any purpose, unless otherwise permitted; (ii) take any action to circumvent or defeat the security or content usage rules provided, deployed or enforced by any functionality (including without limitation digital rights management functionality) contained in the Application or Website; (iii) use the Application or Website to access, copy, transfer, transcode or retransmit content in violation of any law or third party rights; or (iv) remove, obscure, or alter Nirvana’s or any third party’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Application or Website.
9. Copyright and Intellectual Property Rights
The content, arrangement and layout of the Website and Application, including, but not limited to, the trademarks, libraries, Sketches, photos, logos, videos, audio, images, text (in the form of plain text, HTML, or PDFs) and computer code are proprietary to Nirvana, either owned or under license, and may not be copied, imitated, reproduced, displayed, distributed, transmitted, decompiled or otherwise used without the express permission of Nirvana, or as permitted by the functionality of the Website or Application or these TOU. Any unauthorized use of the content, arrangement or layout of the Website or Application, computer code, images, logos, videos, audio or trademarks found in the Website or any derivative works thereof may violate civil or criminal laws, including but not limited to intellectual property laws, and Nirvana may take action accordingly.
If you choose to communicate to Nirvana suggestions for improvements to the Website or the Service (collectively, “Feedback”), Nirvana shall own all right, title, and interest in and to the Feedback and will be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to Nirvana and waive in favor of Nirvana, its successor and assigns all your moral rights in the Feedback, and agree to provide Nirvana such assistance as Nirvana may require to document, perfect, and maintain Nirvana’s rights to the Feedback. You acknowledge and agree that, by providing any Feedback to Nirvana, you are not entitled to any compensation or reimbursement of any kind from Nirvana under any circumstances.
Certain intellectual property is used on the Website or in the Application that belongs to third parties. GTD® and Getting Things Done® are registered trademarks of the David Allen Company. Nirvana is not affiliated with or endorsed by the David Allen Company. Apple and iOS are registered trademarks of Apple Inc. Android is a registered trademark of Google Inc.
10. Interruption of Website or Service
From time to time, the Website or Service may be unavailable for brief periods of time for maintenance and / or modifications to the Website or Service. While we will endeavour to make this unavailability as brief as possible, Nirvana shall not be held liable for any losses or damages, pecuniary or non-pecuniary, resulting from the interruption of the normal functioning of the Website or Service, and disclaims any responsibility thereto.
11. Termination of the Website or Service and these TOU
You agree that Nirvana, in their sole discretion, with or without cause, has the right (but not the obligation) to block your IP address, suspend your login credentials, or otherwise terminate your access to or use of the Website or Service (or any part thereof), immediately and without notice, for any reason, including, without limitation, if Nirvana believes that you have acted inconsistently with the letter or spirit of the TOU.
In addition, if you are using the free version of the Service, Nirvana reserves the right to cancel your Account and delete all of your information after one year of inactivity. In such a case, you will be given two email notices prior to the cancellation and deletion.
Nirvana may also, in their sole discretion and at any time, discontinue providing the Website or Service, or any part thereof, with or without notice. Furthermore, you agree that the Nirvana shall not be liable to you or any third party for any losses or damages, pecuniary or non-pecuniary, resulting from termination of your access to the Website or Service, or from Nirvana’s termination of the Website or Service or any part thereof.
These TOU will continue to apply until terminated by either you or Nirvana as set forth herein. You may terminate these TOU at any time by permanently deleting the Application from your Device in its entirety. Your rights automatically and immediately terminate without notice from Nirvana or any Third Party if you fail to comply with any provision of these TOU. In such event, you must immediately delete and destroy all copies of the Application and all of its component parts and cease and desist from accessing any Service components of the Application.
All provisions of these TOU which by their nature should survive termination of the Website or Service or any other event leading to the cancellation of these TOU between you and Nirvana shall survive termination, including without limitation, intellectual property ownership provisions, disclaimers, indemnity and limitations of liability.
12. External Links
In no way will Nirvana be held responsible for any damages, direct or indirect, pecuniary or non-pecuniary: (1) for your use of websites or other services that may be linked to from the Website or the information thereon; (2) for any virus, Trojan horse, worm or other similar destructive file received as a result of your use of those websites or services; (3) caused by or in connection with, use of or reliance on any content, or products or services (whether free or for purchase) available on or through any linked-to website or service; or (4) for the actions of the operators of any such website or service.
Notwithstanding any other term of the TOU or any act or failure to act by Nirvana or its agents or subcontractors, you agree to indemnify, defend and hold harmless Nirvana and their officers, directors, owners, partners, partnerships, principals, affiliates and other related entities, servants, agents, representatives, successors, assigns and subcontractors where applicable from and against any damages, liabilities, costs and expenses (including attorneys’ fees), claims or demands, arising out of (i) your use of or connection to the Website or Service or the information thereon; (ii) your participation in any activities arising from the Website or the Service or the information thereon; (iii) your violation of, or failure to perform your obligations under the TOU; or (iv) your violation of any rights of a third party.
14. Disclaimer of Warranties
You expressly understand and agree that your use of the Website or Service, the information thereon (whether provided by Nirvana or third parties), or any activity arising from the use of the Website or Service or the information thereon is at your sole risk. The Website or Service, or any third party materials, are provided on an "as is" and "as available" basis, and you will be solely responsible for any damage to your computer system or loss of data that results from the download, stream or access of any material obtained through the use of the Website or Service or any other functionalities of the Website or Service, or damages (financial or otherwise) resulting from your use of the Website or Service, the information thereon, or any activity arising from the use of the Website or Service or the information thereon.
The information provided through the Website or Service written by Nirvana staff, freelance writers or other subcontractors (whether paid or voluntary) is known to be as accurate as possible at the time of writing, and every effort has been made to ensure that the information from the Website or Service is as accurate and up-to-date as possible. However, certain information may change, and errors or omissions may occur, and Nirvana shall not be responsible for any loss or damage, financial or otherwise, resulting from changes or errors in information, or any omission, on the Website or Service.
Nirvana expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to, warranties of title and non-infringement, warranties that the Website or Service and any third party materials will be uninterrupted, error-free, accurate, reliable and free from virus and other harmful components, and the implied warranties of merchantability and fitness for a particular purpose. Without limiting the generality of the foregoing, Nirvana, and its directors, agents, suppliers, partners and subcontractors do not warrant that: (i) the Website or Service will be secure or available at any particular time or location; (ii) any defects or errors or omissions will be corrected; (iii) any content or software available at or through the Website or Service is free of viruses or other harmful components; or (iv) the results of using the Website or Service will meet your requirements.
You are solely responsible for any damage to your Device, or other Device, or loss of data that results from use of the Application.
The Application is not intended for use in the operation of nuclear facilities, life support systems, emergency communications, aircraft navigation or communication systems, air traffic control systems, or any other activities in which the failure of the Application could lead to death, personal injury, or severe physical or environmental damage.
15. Limitation of Liability
You expressly understand and agree that Nirvana, its subsidiaries and affiliates, and its licensors are not liable to you under any theory of liability for any direct, indirect, incidental, special consequential or exemplary damages that may be incurred by you through your use of the Website or Service, including any loss of data or damage to your Device, whether or not the company or its representatives have been advised of or should have been aware of the possibility of any such losses arising.
16. Governing Laws and Jurisdiction
Use of the Website or Service, and these TOU, shall be governed by and construed in accordance with the laws of the Province of Quebec, Canada, in force at the time without regard to conflict of law provisions. You agree that any legal action or proceeding between you and Nirvana shall be brought exclusively in the courts located in the Judicial District of Montreal, in the province of Quebec, Canada.
c. The failure of Nirvana to exercise or enforce any right or provision of these TOU does not constitute a waiver of such right or provision, which will still be available to Nirvana.
e. The rights granted in these TOU may not be assigned or transferred by either you or Nirvana without the prior written approval of the other party. Where a third party uses the Application installed on your Device or the Service on the Website, you are legally responsible for that third party’s use and are bound by these TOU. Neither you nor Nirvana are permitted to delegate their responsibilities or obligations under these TOU without the prior written approval of the other party.
f. You hereby agree that if these TOU are not specifically enforced, Nirvana will be irreparably damaged, and therefore you agree that Nirvana shall be entitled, without bond, other security or proof of damages, to all appropriate equitable or similar remedies, including injunctive relief, with respect to your breach of any of the terms of these TOU, in addition to any other available remedies.
© Nirvana 2015