Terms of Use

Updated: May 5th/2017

Naborly Inc. Terms of Use

These Terms of Use (the “Terms of Use”) are made by and between Naborly Inc. (“Naborly”), the Landlord (as defined below) and the Tenant (as defined below) (collectively a “Party” and the “Parties”) and sets out the general terms and conditions pursuant to which Naborly shall supply Landlords and Tenants with Services (as such term is defined below).

By using or accessing the Services, the User agrees to be bound by these Terms of Use.

In consideration for the mutual promises set out below, and for other good and valuable consideration acknowledged by the Parties agree as follows:

  1. Definitions. The following words and phrases have the following meanings, unless otherwise defined in these Terms of Use:
    1. “Authorized User” means an employee of Landlord that Landlord has authorized to order or access the Services and who is trained on Landlord’s obligations under these Terms of Use with respect to the ordering and use of the Services, and the information provided through same, including, inter alia, Landlord’s applicable provincial and federal consumer reporting, security and privacy laws (collectively, the “Canadian Consumer Laws”) and other obligations with respect to the access and use of consumer reports.
    2. “Effective Date” means the date Landlord executes these Terms of Use.
    3. “End User” means a person who uses the Services to make a tenancy decision.
    4. “Including” means “including without limitation” and “includes” means “includes without limitation.”
    5. “Input Data” means any and all information collected and/or stored by or on behalf of Naborly in connection with or derived from a User’s use of the Services.
    6. Landlord(s)” means the individual, group or entity that is the authorized recipient of Naborly Reports, which includes landlords and property management service providers and those parties authorized to make tenancy decisions on behalf of a Landlord or property owner.
    7. “Naborly Report” means a documented composition of reliably sourced data that presents a corresponding tenancy-related outcome analysis.
    8. “Naborly Score” means the numerical summary assessment of the combination of a Tenant’s Input Data and external market and property data.
    9. “Personnel” means a party’s employees, officers, directors, agents and sub-contractors.
    10. Services” means the tenancy decision support services and Naborly website(s) that Naborly delivers, supplies to, or provides for the Landlord, including Naborly Reports, software, data, documentation, information and support, which shall be delivered in accordance with the terms and conditions outlined in these Terms of Use.
    11. Subject Property” means the property (whether a house, condominium unit or apartment) which a Landlord is tendering applications for from Tenants.
    12. Tenant(s)” means the individual who is the qualified applicant for tenancy at a Subject Property or an individual that is the subject of a data file provided to Naborly via Naborly’s vendors, end-users, API users, or partners.
    13. “Users” means both Landlords and Tenants.
  2. Identity Verification and Credentialing. In order to receive and use the Services, Users must meet all requirements set out by Naborly in relation to an application. For Landlords, this means being successfully identified and credentialed by Naborly pursuant to a set of statutory requirements and third-party verification measures. It is a condition of these Terms of Use that Landlords promptly give Naborly notice of any change to the information provided in an application.
  3. License and Use of Services
    1. License. During the currency of these Terms of Use, Naborly grants to User a non-exclusive, non-transferable, revocable license to access and use the Services, including access to and use of the whole or part of the Naborly Report, which may be received as a result of User’s receipt of Services, for User’s internal business purposes only. For clarity, User may not use the Services to validate any independently developed analytical model or method. User acknowledges and agrees that it shall not acquire or claim any title to any of Naborly’s (or its relevant licensor’s) intellectual property rights in the Services or Naborly Report by virtue of the rights granted to User under these Terms of Use. For clarity, all intellectual property rights in the Services and Naborly Report shall remain vested in Naborly (or its relevant licensors, if applicable) and User agrees that it will not, at any time, do, or omit to do, anything which is likely to prejudice Naborly’s ownership (or its licensors’ ownership) of such rights. User covenants and agrees that no action whatsoever will be taken to access, store, merge, aggregate, compile, decompile, manipulate, copy, reverse engineer, create derivative products, create and/or disseminate competitive products, use for the purpose of gathering or conducting market research, derive the source code, sublicense, sell, white label, re-package or re-format, distribute, commercially exploit or otherwise make available for use the Services, including information received as a result of using the Services.
    2. Data Ownership.
      1. User owns and retains all right, title and interest in and to the Input Data other than the limited rights expressly granted in section 3.2(b) below. Naborly shall take commercially reasonable precautions to protect the Input Data from interference by third parties, but assumes no responsibility for the failure of the Services to store any Input Data. User is solely responsible for maintaining independent backup copies of the Input Data in the event of data loss or corruption.
      2. User acknowledges that use of the Services may require access to and use of the Input Data and other similar data collected from its other Users in a manner that is not directly identifiable with the User or any other User of Naborly (“Anonymous Data”). For this sole purpose, User hereby grants Naborly a perpetual, irrevocable, non-exclusive, worldwide, transferable and royalty free right to use, copy, modify, distribute and display the Anonymous Data and any derivatives thereof. The limited license granted herein shall survive termination, cancellation, or expiration of these Terms of Use.
    3. Permissible Purpose. User warrants that it will request and use Services only for the purpose of entering into or renewing a tenancy relationship or agreement and only pursuant to the procedures prescribed and set forth by Naborly from time to time.
    4. Compliance with Applicable Laws. When requesting and/or using Services, Landlord agrees to comply with all applicable Canadian, Provincial and local laws, including but not limited to the various provincial consumer reporting acts or equivalent, the Personal Information Protection and Electronic Documents Act (Canada) or equivalent provincial privacy acts, and any applicable regulations, judicial orders and/or orders of an administrative tribunal, as now or as may become effective throughout the term of these Terms of Use. Without limiting the foregoing, Landlord must obtain any consent from and give any notice to an individual that is required by law, including applicable privacy legislation, before using the Services. Landlord agrees to make such changes to its business practices as Naborly may request from time to time that are necessary, in the sole opinion of Naborly, for Naborly to lawfully provide the Services.
    5. Verification by Tenant. It is Tenant’s sole responsibility to ensure that, prior to requesting from Naborly any Services or providing consent to any Landlord to use the Services in connection with a Tenant, Tenant will have obtained any and all assurances and confirmation that the Landlord is rightly connected to the Subject Property.
    6. Changes. Naborly reserves the right at all times, in its sole and absolute discretion, to change, evolve, modify, enhance or supplement the Services, its databases and/or its systems.
  4. Naborly Reports
    1. The Landlord must keep all Naborly Reports secure and confidential, and shall only disclose them to the party instructed by the Tenant and shall not disclose or transfer any part of them to a third party unless:
      1. The disclosure or transfer is required by law; or
      2. The individual who is the subject of the Naborly Report has consented to the disclosure or transfer in writing.
    2. No Guarantee. Naborly does not guarantee the predictive value of the scores produced in Naborly Reports. Neither Naborly nor its officers, employees, agents, subsidiaries, affiliated companies or third party contractors, licensees or suppliers shall be liable to a User for any damages, losses, costs or expenses incurred by a User resulting from any failure of the score used to accurately predict apparent worthiness or loss potential of its applicants and landlords.
    3. Limitation of Use. Users are only permitted to use the Services to explore a landlord-tenant relationship in connection with a Subject Property. Landlords are not permitted to use the Services on themselves and Tenants are not permitted to register for or use the Services as Landlords.
  5. Access to Services.
    1. The Landlord shall:
      1. Ensure that only Authorized Users can access and use the Services;
      2. upon request by Naborly, immediately provide to Naborly documentary evidence of its authority to use the Services in connection with the real property in question, such documentary evidence to be deemed sufficient in Naborly’s sole discretion;
      3. only use the Services as permitted by these Terms of Use and any applicable supplemental policy or regulation.
      4. ensure that Authorized Users do not order Naborly Reports for personal reasons or provide them to any third party except as permitted by these Terms of Use;
      5. inform Authorized Users that unauthorized access to consumer reports or Naborly Reports may subject them to civil and criminal liability under the Canadian Consumer Laws punishable by fines and imprisonment;
      6. ensure that all devices used by Landlord to order or access the Services are placed in a secure location and accessible only by Authorized Users, and that such devices are secured when not in use through such means as screen locks, shutting power controls off, or other commercially reasonable security procedures;
      7. monitor compliance with the obligations of these Terms of Use and any applicable Naborly policies, and immediately notify Naborly if Landlord suspects or knows of any unauthorized access or attempt to access the Services. Such monitoring will include, without limitation, a review of Naborly invoices for the purpose of detecting any unauthorized activity;
      8. use commercially reasonable efforts to assure data security when disposing of any information or record obtained from Naborly. Such efforts must include the use of those procedures issued by the federal or provincial or other regulatory agency charged with oversight of Landlord’s activities (e.g., the Federal Trade Commission, the Canadian Trade Commissioner Service, the applicable banking or credit union regulator) applicable to the disposal of consumer report information of records;
      9. provide immediate notification to Naborly of any change in address or office location and are subject to an onsite visit of the new location by Naborly or its designated representative;
      10. in the event Landlord has a security incident involving Naborly Confidential Information, Landlord will folly cooperate with Naborly in a security assessment process and promptly remediate any finding;
      11. Landlord shall implement, and shall take measures to maintain, reasonable and appropriate administrative, technical, and physical security safeguards (“Safeguards“) designed to: (i) ensure the security and confidentiality of Personal Information; (ii) protect against anticipated threats or hazards to the security or integrity of Personal Information; and, (iii) protect against unauthorized access or use of Personal Information that could result in substantial harm or inconvenience to any Landlord. Subscriber shall implement and maintain reasonable security procedures and practices appropriate to the nature of the information and to protect the Personal Information from unauthorized access, destruction, use, modification, or disclosure including without limitation, ensuring any Subscriber intentional deletion, destruction and/or disposal of Personal Information (whether in paper, electronic, or any other form, and regardless of medium on which such Personal Information is stored) is performed in a manner so as to reasonably prevent its misappropriation or other unauthorized use including, but not limited to, cross-shredding printed information and pulverizing or incinerating tapes, disks and other such non-paper media; and
      12. Landlord must be a qualified enterprise account holder in order to have Authorized Users.
    2. The Landlord will be responsible for providing and installing all hardware and software at its premises necessary to access the Services. Naborly will provide reasonable consultation to Landlord to assist in defining those hardware and software needs.
    3. If Naborly reasonably believes that Landlord has violated this section 5, Naborly may, in addition to any other remedy authorized by these Terms of Use, with reasonable advance written notice to Landlord, conduct, or have a third party conduct on its behalf, an audit of Landlord’s network security systems, facilities, practices and procedures to the extent Naborly reasonably deems necessary, including an on-site inspection, to evaluate Landlord’s compliance with the data security requirements of these Terms of Use.
  6. Audits
    1. Naborly, at its discretion, may audit the Landlord’s practices and procedures to determine its compliance these Terms of Use and any applicable policies or regulations. Landlord shall reasonably cooperate in all such audits.
    2. Naborly, or such party appointed by Naborly, may conduct an audit in person at the Landlord’s premises upon reasonable notice, by telephone or in writing. In addition, Naborly may conduct audits by mail that may require Landlord to provide documentation regarding permissible purposes for particular uses of the Services.
    3. The Landlord must provide all relevant information and documentation Naborly reasonably requests during an audit to establish the Landlord’s compliance with the terms hereof.
  7. Pricing, Payments and Fees
    1. User agrees to pay to Naborly the fees and charges for the Services provided to User under this Agreement and remit payment as directed by Naborly. Such pricing is hereby incorporated by reference into this Agreement via a pricing agreement (the “Pricing Agreement“).
    2. All fees and charges are in the local currency of the jurisdiction in which the Landlord is located. The fees and charges are exclusive of any shipping, insurance costs or any taxes, duties or other charges of any kind that may be imposed by any federal, provincial or local government entity for the Services, the payment of which User shall be responsible for.
    3. Naborly reserves the right to change the fees and charges from time to time.
  8. Term and Termination
    1. These Terms of Use shall come into force on the Effective Date and shall remain in force and effect for as long as a User is using the Services. If a User disagrees with any of these Terms of Use, they must immediately cease using the Services and shall immediately delete all materials or information collected or held by them through the Services.
    2. Naborly may, without any liability to Users, terminate these Terms of Use immediately if, at any time and for any reason, as a result, the User is no longer eligible to use the Services under applicable laws or Naborly ‘s policies or is not using the Services in accordance with these Terms of Use.
  9. Suspension of Services
    1. Naborly may, without any liability to the User, indefinitely suspend the supply of all, some or any part of the Services immediately if Naborly:
      1. reasonably believes that the User is not using the Services in compliance with these Terms of Use or applicable supplemental policies or regulations;
      2. reasonably believes that the Services may infringe upon a third party’s intellectual property rights; or
      3. is required to stop supplying the Services in order to comply with applicable laws.
  10. Confidential Information. Users agree to hold in strict confidence the Naborly Reports and any information it receives or derives from the Services or any information received by User as part of the Services and not to distribute any copy to any other party, except as strictly required by any law or other lawful order. However, this restriction shall not prohibit Landlord from discussing with the subject of the report. Furthermore, User agrees that it will receive information of a confidential and/or proprietary nature during the performance of these Terms of Use, including but not limited to any information contained in the Services, member codes or passwords, and such confidential and proprietary information will be held in strict confidence by the User and (i) distributed internally only on a need to know basis to its Representatives who are under similar confidentiality restrictions as contained in these Terms of Use, or (ii) disclosed only upon demand to governmental regulatory agencies; (iii) disclosed as required by law; or (iv) as directed by the Tenant who is the subject if the report. User shall protect any such confidential or proprietary information with at least the same degree of care it uses to protect its own information of a similar nature (although not less than a reasonable degree of care) or as required under applicable laws.
  11. Warranties
    1. Naborly warrants that:
      1. it will use reasonable skill and care to perform and supply the Services in a professional and diligent manner; and
      2. the Services do not infringe on any third party’s intellectual property rights.
    2. Naborly makes no representations, warranties or guarantees other than those expressly set out in these Terms of Use and disclaims any implied warranty or representation that the Services will meet the User’s requirements, or that they are merchantable or fit for a particolar purpose. Naborly cannot predict future events and any indication or guidance in respect of a particolar outcome provided by Naborly is strictly limited by the information Naborly is provided by Users.
    3. The User acknowledges that Naborly sources and receives information included in Naborly Reports from third parties, including Input Data, which Naborly does not control or independently verify. Naborly is not under any circumstances responsible for the contents of any credit report or criminal record check report or any credit score, whether correct or incorrect. Credit reports and criminal record check reports can contain incorrect information. If there are discrepancies in a User’s credit report and/or criminal record check report that have been provided through the Services, User may have rights to dispute it through the third-party credit reporting agency that provides such services.
    4. The Landlord agrees that Naborly Scores shall not be the sole basis for any decision it makes affecting a specific consumer and acknowledges that prudent tenancy-related decisions must be based on factors beyond Naborly Scores and the contents of Naborly Reports, and should include consideration of, among other things, the factors a reasonable decision-maker in a similar situation would take into consideration as part of their tenancy-related decision. Nothing in any of the Services is an endorsement or a determination of a person’s qualifications as a tenant, or for any other purpose. Landlords have differing risk assessment and tenant standards, so Landlords should not assume that a result or finding in a Naborly Report will result in any particular outcome. Naborly does not represent that the Naborly Report is identical or similar to any other credit score, rating model or evaluation tool. Any results or findings produced pursuant to a Naborly Report are provided for informational purposes only and do not constitute a determination or direction by Naborly. In all instances, the information used to create a Naborly Report is derived from one or more credit reports produced by one of the national credit reporting bureaus, amongst other data points. The consumer credit information contained in these credit reports reflects the latest information provided to the pertinent credit reporting agency. Recent activity may not yet be reflected in a user’s credit report. In addition, a user’s credit score may change every time new information is added to or removed from a credit reporting system as well as with the passage of time.
    5. Naborly does not warrant that the Services will operate or be performed without interruption or errors. If a Naborly Report contains incorrectly determined scores, Naborly’s sole liability to the Landlord arising from that error will be for Naborly to reprocess the Landlord’s request and determine the correct scores.
    6. Naborly does not act for or on behalf of any Landlord, Tenant, property manager or property owner and as such is not responsible under any circumstances for vetting, identifying or verifying the identity or qualifications or security and/or privacy practices and policies of any such group, including a Landlord. Under no circumstances is Naborly responsible for the outcome of any landlord-tenant transaction or any other type of transaction that may occur between users of the Services. In the event of a dispute or grievance between a landlord and tenant or any other users of the Services, Naborly strongly encourages each respective party to seek its own qualified advisor.
    7. If a transaction arises between a Landlord and Tenant or any other users of the Services, no aspect of the Services is intended nor does it create any kind of contract or other legal obligation between a landlord and a prospective tenant or any other groups of persons. Naborly’s application form is not a rental or lease agreement or any other form of legal agreement or understanding. A rental or lease agreement SHOULD be signed by both the Landlord and tenant.
  12. IndemnificationUser shall indemnify and hold harmless Naborly and its directors, officers, employees, representatives and agents from any and all claims, losses, liabilities or damages, including consequential damages, and costs (including reasonable attorney’s fees) arising directly or indirectly from, but not limited to: (i) the failure or alleged failure of User to perform any of its obligations described in these Terms of Use, including but not limited to, any breach which result in the non-permissible use of Naborly Reports provided hereunder; (ii) the negligence or intentional wrongful conduct of User, its directors, officers, or employees; or (iii) the use of Naborly Reports or any other Service.
  13. Limitation of Liability. IN NO EVENT SHALL NABORLY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES INCURRED BY USER AND ARISING OUT OF THE PERFORMANCE OF THESE TERMS OF USE, INCLUDING BUT NOT LIMITED TO LOSS OF GOODWILL, LOSS OF DATA AND LOST PROFITS OR REVENUE, WHETHER OR NOT SUCH LOSS OR DAMAGE IS BASED IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF NABORLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, IN NO EVENT SHALL NABORLY’S TOTAL AGGREGATE LIABILITY TO USER OR ANY THIRD PARTY ARISING UNDER THESE TERMS OF USE AND/OR IN RESPECT OF THE SERVICES EXCEED THE TOTAL AMOUNT OF FEES PAID TO NABORLY BY USER DURING THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING AN EVENT GIVING RISE TO A CLAIM FOR LIABILITY, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE. THESE LIMITATIONS SHALL SURVIVE AND APPLY NOTWITHSTANDING THE VALIDITY OF THE LIMITED REMEDIES PROVIDED FOR IN THESE TERMS OF USE.
  14. Third Party Sites. The Services may contain links to third party websites. Naborly does not represent, guarantee, or endorse any website that Users may access from this website. In addition, if Naborly provides a link to a website, it does not represent, guarantee, or endorse that website (or associated group, entity, corporation or individual) or any of its offerings. Links contained on this website are provided solely as a convenience to Users. When Users access a non-Naborly website, they acknowledge that the linked website and its content are not under Naborly’s control. Naborly is not responsible for webcasting or any other form of transmission received from any linked websites. Users are responsible for protecting their systems from viruses and other invasive items.
  15. GENERAL PROVISIONS
    1. Conflicts or Inconsistencies. If there is any conflict or inconsistency between the main body of these Terms of Use and exhibits to these Terms of Use, the order of precedence of interpretation, to the extent of such conflict or inconsistency, shall be as follows: (1) main body of Terms of Use and (2) the exhibits.
    2. Entire Agreement. These Terms of Use, including its exhibits, comprises all the terms, conditions and agreements of the parties hereto with respect to the subject matter herein. These Terms of Use cancel and supersede all prior agreements, understandings and communications on the subject matter of these Terms of Use, whether oral or written, express or implied. These Terms of Use may not be varied except through a document agreed to and signed by an authorized representative of both parties. Headings are for reference only. There are no third party beneficiaries to these Terms of Use.
    3. Force Majeure. Naborly shall not be responsible for any non-performance, delay in performance or inadequate performance caused by conditions beyond its reasonable control, including without limiting the generality of the foregoing, acts or omission of the Landlord, acts of our civil or military authority, state of war, acts of terrorism or other national emergency, strikes, boycotts or other concerted acts of workers, lockouts, failure of utilities or communications carriers, embargoes, insurrections or acts of God, fire, flood or enactment of laws, regolations or other order of public authorities.
    4. Governing Law. These Terms of Use shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein. Any dispute under these Terms of Use arising between the parties will be referred to the exclusive jurisdiction of the Courts of Toronto, Ontario.
    5. Compliance with Laws. Each party shall be responsible for compliance with all applicable Canadian, provincial and local legislation, regolations and judicial actions, as now or may become effective, to which it is subject.
    6. No Publicity. Neither party shall, without the prior written consent of the other, save and except as may be required by law, publicize nor disclose the existence or terms of these Terms of Use to any third party, other than on a confidential basis to its legal and financial advisors. In particolar, no press releases, public announcements or public displays of any Services performed specifically by Naborly shall be made without the written agreement of Naborly.
    7. Status of User. A party and its Representatives shall under no circumstances be considered employees, agents, partners, parties to a joint venture or representatives of the other party, nor shall either party have any authority to bind the other in any respect. Neither party shall act or attempt to act, or represent itself, directly or by implication as agent, party to a joint venture with the other party, partner or representative of the other, or in any manner assume or attempt to assume or create any obligation or liability of any kind, or make any promise, warranty or representation with respect to the Services or any other matter, express or implied, on behalf of, or in the name of, the other.
    8. Survival. Notwithstanding the expiration or termination of these Terms of Use, it is expressly provided that the provisions of these Terms of Use that, by their nature, shoold extend beyond the life of these Terms of Use shall remain in force in accordance with their terms.
    9. Unenforceability of Provisions. Each section and provision of these Terms of Use is severable from the Agreement and if one paragraph or provision is declared invalid, the remaining sections and provisions shall nevertheless remain in foll force and effect and the parties shall, in good faith, negotiate an appropriate amendment to the Agreement to replace the invalid provision. If the parties shall fail to agree upon an appropriate amendment, then these Terms of Use shall be construed (a) as if such invalid or unenforceable provision or part thereof had been effectively modified to the extent necessary to avoid the illegality or unenforceability of such provision, if possible, and if not, then (b) as if such invalid or unenforceable provision or part thereof had not been contained herein.
    10. Headings for Convenience Only. The division of these Terms of Use into articles and sections is for convenience of reference only and shall not affect the interpretation or construction of these Terms of Use.
    11. Waiver. No party shall be deemed to have waived the exercise of any right that it holds under these Terms of Use or at law unless such waiver is expressly made in writing. Failure of a party at any time, and for any length of time, to require performance by the other party of any obligation under these Terms of Use shall in no event affect the right to require performance of that obligation or the right to claim remedies for breach under the Agreement or at law. A waiver by a party of any breach of any provision of these Terms of Use, unless otherwise expressly stated in writing, is not to be construed as a waiver of any continuing or succeeding breach of such provision, a waiver or modification of the provision itself, or a waiver or modification of any right under these Terms of Use or at law.

These Terms of Use have been executed by the undersigned authorized representative(s).