Nimbix Terms of Service
UPON USING THE NIMBIX ACCELERATED COMPUTE CLOUD (“Nimbix Cloud”), USING NIMBIX APPLICATIONS (“NIMBIX APPLICATIONS”), OR CREATING A NIMBIX APPLICATION ENVIRONMENT (“NAE”) ON THE NIMBIX WEBSITE YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO THIS AGREEMENT, IN WHICH CASE “YOU” SHALL MEAN SUCH ENTITY.
IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT USE THE SERVICES.
1. The Services
The services covered by this Agreement include services that NIMBIX (referred to herein as “we” or “us”) makes available for a fee (the “Services”).
1.2. Services. Services include all web services and any related support services that we make available to you for a fee on the NIMBIX website, except those web services for which we specifically provide a separate customer agreement. Our Services include, but are not limited to:
* Nimbix Accelerated Compute Cloud or Nimbix Cloud
* Nimbix Applications
* Nimbix Application Environments / JARVICE
* Nimbix Cloud Storage
2. Modifications to this Agreement
You agree that we may modify this Agreement or any policy or other terms referenced in this Agreement (collectively, “Additional Policies”) at any time by posting a revised version of the Agreement or such Additional Policy on the NIMBIX Website or our “Terms” page accessible at http://www.nimbix.net/terms-and-conditions
By continuing to use or receive the Services after the effective date of any revisions to this Agreement or any Additional Policies, you agree to be bound by the revised Agreement or any revised Additional Policies. It is your responsibility to check the NIMBIX Website and the Developer page regularly for changes to this Agreement or the Additional Policies, as applicable.
3. Term, Termination and Suspension
3.1. Term. The term of this Agreement (“Term”) will commence, and you may begin using the Services, once this Agreement has been executed by both You and Nimbix. The Agreement will remain in effect until terminated by you or us in accordance with this Section 3.
3.2. Termination by You for Convenience. You may terminate this Agreement for any reason or no reason at all, at your convenience, by (i) providing us written notice of termination in accordance with Section 15 and (ii) closing your account for any Service for which we provide an account closing mechanism.
3.3. Termination or Suspension by Us Other Than for Cause.
3.3.1. Services. We may suspend your right and license to use any or all Services (and any associated Nimbix Applications) or terminate this Agreement in its entirety (and, accordingly, cease providing all Services to you), for any reason or for no reason, at our discretion at any time, upon not less than 30 days’ notice, in accordance with the notice provisions set forth in Section 15 below.
3.4. Termination or Suspension by Us for Cause. We may suspend your right and license to use any individual Service or any set of Services, or terminate this Agreement in its entirety (and, accordingly, your right to use all Services), for cause effective as set forth below:
3.4.1. Immediately upon our notice to you in accordance with the notice provisions set forth in Section 15 below if: (i) you attempt a denial of service attack on any of the Services; (ii) you seek to hack or break any security mechanism on any of the Services or we otherwise determine that your use of the Services or The Nimbix Cloud poses a security or service risk to us, to any user of services offered by us, to any third party sellers on any of our websites, or to any of our or their respective customers or may subject us or any third party to liability, damages or danger; (iii) you otherwise use the Services in a way that disrupts or threatens the Services; (iv) you are in default of your payment obligations hereunder and there is an unusual spike or increase in your use of the Services; (v) we determine, in our sole reasonable discretion, there is evidence of fraud with respect to your account; (vi) you use any of the NIMBIX Content (as defined in Section 6.1) other than as expressly permitted herein; (vii) we receive notice or we otherwise determine, in our sole reasonable discretion, that you may be using NIMBIX Services for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party; (viii) we determine, in our sole reasonable discretion, that our provision of any of the Services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (ix) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets, failure to continue your business, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy or similar proceeding.
3.4.2. Fifteen (15) days following our provision of notice to you in accordance with the notice provisions set forth in Section 15 below if you are in default of any payment obligation with respect to any of the Services or if any payment mechanism you have provided to us is invalid or charges are refused for such payment mechanism, and you fail to cure such payment obligation default or correct such payment mechanism problem within such 15 day period.
3.4.3. Ten (10) days following our provision of notice to you in accordance with the notice provisions set forth in Section 15 below if you breach any other provision of this Agreement and fail, as determined by us, in our sole reasonable discretion, to cure such breach within such 10 day period.
3.5. Effect of Suspension or Termination.
3.5.1. Suspension. Upon our suspension of your use of any Services, in whole or in part, for any reason, (i) you remain liable for all fees, charges and any other obligations you have incurred through the date of suspension with respect to the Services; and (ii) all of your rights with respect to the applicable Services shall be terminated during the period of the suspension.
3.5.2. Termination. Upon termination of this Agreement for any reason: (i) you remain liable for all fees, charges and any other obligations you have incurred through the date of termination with respect to the Services; (ii) all of your rights under this Agreement shall immediately terminate; and (iii) each party shall immediately return, or if instructed by the other party, destroy all Confidential Information (as defined in Section 9 below) of the other party and any Nimbix Applications then in your possession.
3.6. Survival. In the event this Agreement is terminated for any reason, Sections 3.5, 3.6, 3.7, 3.8, 4.2, 6, 8 (with respect to payments that are accrued but unpaid at the time of termination), and 9 through 16 will survive any such termination.
3.7. Data Preservation in the Event of Suspension or Termination.
3.7.1. In the Event of Suspension Other Than for Cause. In the event of a suspension by us of your access to any Service for any reason other than a for cause suspension under Section 3.4.1 (other than under 3.4.1(viii)), during the period of suspension, (i) we will not take any action to intentionally erase any of your data stored on the Services and (ii) applicable Service data storage charges will continue to accrue.
3.7.2. In the Event of Termination Other Than for Cause. In the event of any termination by us of any Service or any set of Services, or termination of this Agreement in its entirety, other than a for cause termination under Section 3.4.1 (other than under 3.4.1(viii)), (i) we will not take any action to intentionally erase any of your data stored on the Services for a period of thirty (30) days after the effective date of termination; and (ii) your post termination retrieval of data stored on the Services will be conditioned on your payment of Service data storage charges for the period following termination, payment in full of any other amounts due us, and your compliance with reasonable terms and conditions we may establish with respect to such data retrieval.
3.7.3. In the Event of Other Suspension or Termination. Except as provided in Sections 3.7.1 and 3.7.2 above, we shall have no obligation to continue to store your data during any period of suspension or termination or to permit you to retrieve the same.
3.8. Post-Termination Assistance. Following the suspension or termination of your right to use the Services by us or by you for any reason other than a for cause termination (i.e., a termination under Section 3.2 or under Section 3.3), you shall be entitled to take advantage of any post-termination assistance we may generally make available with respect to the Services, such as data retrieval arrangements we may elect to make available. We may also endeavor to provide you unique post-suspension or post-termination assistance, but we shall be under no obligation to do so. Your right to take advantage of any such assistance, whether generally made available with respect to the Services or made available uniquely to you, shall be conditioned upon your acceptance of and compliance with any fees and terms we specify for such assistance.
4. Authorization and License to Use the Services
Subject to your acceptance of and compliance with this Agreement and with the payment requirements for the Services that are set forth on the applicable Service detail page on the NIMBIX Website (as such payment terms may be updated from time to time), we hereby grant you a limited, non-exclusive, non-transferable, non-sublicenseable right and license, in and under our intellectual property rights, to access and use the Services, solely in accordance with the terms and conditions of this Agreement.
4.1. Permitted Uses Generally.
4.1.1. You may enable access and use of Your Content by your end users in accordance with the terms of this Agreement. “Your Content” means any Application, data or other content that you may (a) provide to us pursuant to this Agreement, (b) make available to any end users in conjunction with the Services, or (c) develop, or use in connection with the Services. Your Content includes, but is not limited to, software, data, and content that you or your end users upload to ours systems as a part of an Application. You are responsible for all terms and conditions applicable to Your Content.
4.1.2. You may make network calls or requests to the Services at any time that the Services are available, unless otherwise set forth herein.
4.2. Restricted Uses Generally.
4.2.1. You may not interfere or attempt to interfere in any manner with the functionality or proper working of the Services.
4.2.2. You may not compile or use the Nimbix Applications for the purpose of direct marketing, spamming, unsolicited contacting of sellers or customers, or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming regulations.
4.2.3. You may not remove, obscure, or alter any notice of any Mark, or other intellectual property or proprietary right designation appearing on or contained within the Services or on any Nimbix Applications.
4.2.4. Subject to the terms and conditions of this Agreement, you may generally publicize your use of the Services; however, you may not issue any press release with respect to the Services or this Agreement without our prior written consent.
4.3. Accounts. Unless otherwise stated, you may only create one account per email address. NIMBIX accounts are associated with one email address, which is used to access the service. Account Identifiers (i) identify your account and (ii) allow you to make requests to NIMBIX. The Account Identifier is immutable and will always uniquely identify your NIMBIX account. You should contact us immediately if you believe a third party may be using your account. You are responsible for maintaining up-to-date and accurate information (including contact information) for your NIMBIX account.
4.4. Monitoring Your Use of the Nimbix Services. You further acknowledge and agree that, with respect to:
4.4.1. Online Applications, we may crawl or otherwise monitor the external interfaces of your Application for the purpose of verifying your compliance with this Agreement. You may not seek to block or otherwise interfere with such crawling or monitoring (and we may use technical means to overcome any methods used on your Application to block or interfere with our crawling or monitoring).
4.4.2. Client-Side Applications, you agree to furnish a copy of your Application upon request for the purpose of verifying your compliance with this Agreement.
5. Acceptable Use Policy and Service Terms
You may only use the Services in accordance with this Agreement.
6. License to Use the Nimbix Applications
6.1. Nimbix Applications. We may make available to you, for your installation, copying and/or use in connection with the Services, from time to time, a variety of software, data and other content and printed and electronic documentation (all such materials except those specifically made available by us under separate license terms, the “Nimbix Applications”). Subject to your acceptance of this Agreement, ongoing compliance with its terms and conditions with respect to the subject Service, and payment if and as required for your right to use the subject Service, we hereby grant to you, without the right to sublicense, a limited, non-exclusive, non-transferable license during the Term, under our intellectual property or proprietary rights in the Nimbix Applications, only to install, copy and use the Nimbix Applications solely in connection with and as necessary for your use of such Services and solely to the extent in compliance with all the terms and conditions of this Agreement. The Nimbix Applications may include, without limitation:
* Proprietary applications;
* Developer tools;
* Specifications describing the operational and functional capabilities, use limitations, technical and engineering requirements, and testing and performance criteria relevant to the proper use of a Service;
* Text materials made available as part of the Service (“Text Materials”); and
* Other forms of digital content, data, text, images, logos, user interface designs and other creative designs, audio and video (with the Text Materials, collectively, “NIMBIX Content”).
Except as may be expressly authorized under this Agreement:
* You may not, and may not attempt to, modify, alter, tamper with, repair, or otherwise create derivative works of any software included in or accessed via the Nimbix Applications.
* You may not, and may not attempt to, reverse engineer, disassemble, or decompile the Nimbix Applications or the Services or apply any other process or procedure to derive the source code of any software included in or accessed via the Nimbix Applications. If certain applications provided by Nimbix are protected under the GNU General Public License, Nimbix will so indicate and use of such applications and its associated source code will be governed by the applicable GNU license terms and conditions.
6.2. Restrictions with Respect to Use of Marks. Your use of any trademarks, service marks, service or trade names, logos, and other designations of NIMBIX and its affiliates or licensors, hereinafter “Marks”, shall strictly comply with the following provisions. You may use the Marks in conjunction with the display of the NIMBIX Content and for the purpose of indicating that your Application was created using the Services. You may use the Marks only in the form in which we make them available to you and not in any manner that disparages Nimbix, its affiliates or its licensors, or that otherwise dilutes any Mark. Other than your limited right to use the Marks as provided in this Agreement, we and our licensors retain all right, title, and interest in and to the Marks. You will not at any time now or in the future challenge or assist others to challenge the validity of the Marks, or attempt to register confusingly similar trademarks, trade names, service marks or logos. You agree to follow our the Trademark Use Guidelines posted on the Nimbix Services Trademark Guidelines page (the “Trademark Guidelines”) as those guidelines may change from time to time. The Trademark Guidelines are incorporated herein by reference. You must immediately discontinue use of any Mark as specified by us at any time in writing. We may modify any Marks provided to you at any time, and upon reasonable notice, you will use only the modified Marks and not the old Marks. Other than as specified in this Agreement, you may not use any trademark, service mark, trade name or other business identifier of Nimbix or its affiliates unless you obtain Nimbix’s or its affiliates’ prior written consent. The foregoing prohibition includes the use of “Nimbix,” any other trademark of NIMBIX, Nimbix or its affiliates, or variations or misspellings of any of them, in the name of an Application or in a URL to the left of the top-level domain name (e.g., “.com”, “.net”, “co.uk”, etc.)-for example, a URL such as “Nimbix.mydomain.com”or “Nimbixauctions.net” are expressly prohibited. Any use you make of the Marks shall inure to our benefit and you hereby irrevocably assign to us all right, title and interest in the same. In addition, both parties agree not to misrepresent or embellish the relationship between us and you, for example by implying that we support, sponsor, endorse, or contribute money to you or your business endeavors.
6.3. Nonexclusive Rights. The rights granted by Nimbix in this Agreement with respect to the Nimbix Applications, the Marks and the Services are nonexclusive, and Nimbix reserves the right to: (i) itself act as a developer of products or services related to any of the products that you may develop in connection with the Nimbix Applications or via your use of the Services; and (ii) appoint third parties as developers or systems integrators who may offer products or services which compete with Nimbix or your Application. Notwithstanding anything to the contrary, Nimbix shall not, and shall have no right to, use Your Content, your data, your Applications, or your results from use of the Services.
7. Downtime and Service Suspensions; Security
7.1. Downtime and Service Suspensions. In addition to our rights to terminate or suspend Services to you as described in Section 3 above, you acknowledge that: (i) your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions; and (ii) we shall also be entitled, without any liability to you, to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to you or to any of our other customers if the Service were not suspended; or (c) in the event that we determine that any Service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Suspensions”). Without limitation to Section 11.5, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension. In the event of downtime or service suspension, as provided for in this Section 7.1, which interrupts any of your services, processes or computations, reasonably requiring that they be begun anew (“Interrupted Services”), you shall not be required to pay for any such Interrupted Services. To the extent we are able, we will endeavor to provide you email notice of any Service Suspension in accordance with the notice provisions set forth in Section 15 below and to post updates on the NIMBIX Websites regarding resumption of Services following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so.
7.2. Security. We strive to keep Your Content secure, but cannot guarantee that we will be successful at doing so, given the nature of the Internet. We strongly encourage you, where available and appropriate, to (a) use encryption technology to protect Your Content from unauthorized access, (b) routinely archive Your Content, and (c) keep your Applications or any software that you use or run with our Services current with the latest security patches or updates. We will have no liability to you for any unauthorized access or use, corruption, deletion, destruction or loss of any of Your Content or Applications.
8.1. Service Fees. In consideration of your use of any of the Services, you agree to pay applicable and undisputed fees for Services in the amounts set forth on the respective Service detail pages on the Nimbix Portal. You are responsible for any undisputed fees assessed by Nimbix for transactions that you submit. Fees for any new Service will be effective upon 30 days’ notice of posting by us on the NIMBIX Website for the applicable Service. We may increase or add new fees for any existing Service or Service feature by giving you 30 days’ advance notice. Such notice will be posted on the NIMBIX Website on the Service detail page for the affected Service. All fees payable by you are exclusive of applicable taxes and duties, including, without limitation, VAT and applicable sales tax. You will provide such information to us as reasonably required to determine whether we are obligated to collect VAT from you, including without limitation your VAT identification number.
8.2. Payment. We shall invoice you monthly in arrears. You shall pay all undisputed amounts within 45 days of your receipt of such invoice.
9.1. Use and Disclosure. Neither party shall disclose the Confidential Information of the other. As used in this Agreement, ” Confidential Information” means all nonpublic information disclosed by either party, their business partners or their respective agents or contractors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes, without limitation, (i) nonpublic information relating to either party’s business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs (including, but not limited to, any information about or involving one of our so-called beta tests or a beta test product that you obtain as a result of your participation in such beta test), (ii) third-party information that either party is obligated to keep confidential, (iii) the nature, content and existence of any discussions or negotiations between you and us, and (iv) Your Content, your data, your Applications, or your results from use of the Services. Confidential Information does not include any information described in Section 9.2 or any information that you are required to disclose by law.
9.2. Excluded Information. Notwithstanding any other provision in this Agreement, you shall not have any confidentiality obligation to us under Section 9.1 above, with respect to any information provided or made available by us hereunder, and we shall not have any confidentiality or non-use obligation to you hereunder with respect to any information, software application, data or content provided or made available by you hereunder that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the receiving party.
9.3. Conflict with Separate Non-Disclosure Agreement. If you and we are parties to a separate non-disclosure agreement (“NDA”) and there is a conflict between the terms of the NDA and the terms of this Section 9, the terms of the NDA shall control.
10. Intellectual Property
10.1. Our Services and Nimbix Applications. Other than the limited use and access rights and licenses expressly set forth in this Agreement, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) the Services; (ii) the Nimbix Applications; (iii) any other technology and software that we provide or use to provide the Services and the Nimbix Applications. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the Services, the Nimbix Applications, or other technology and software (including third party technology and software), except for the limited use and access rights described in this Agreement.
10.2. Your Applications, Data and Content. Other than the rights and interests expressly set forth in this Agreement, and excluding Nimbix Applications and works derived from Nimbix Applications, you reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) Your Content; and (ii) your Applications. Nimbix does not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in Your Content, your data, your applications, or your results from use of the Services.
10.3. Feedback. In the event you elect, at your sole option, in connection with any of the Services, to communicate to us suggestions for improvements to the Services and Nimbix Applications (collectively, “Feedback”), we shall own all right, title, and interest in and to the same, even if you have designated the Feedback as confidential, and we shall be entitled to use the Feedback without restriction.
11. Representations and Warranties; Disclaimers; Limitations of Liability
11.1. Use of the Services. You represent and warrant that you will not use the Services, Nimbix Applications and/or your Application and Your Content: (i) in a manner that infringes, violates or misappropriates any rights of us or any third party; (ii) to engage in spamming or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming regulations, including, without limitation, the CAN SPAM Act of 2003; (iii) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms or other data that is subject to export controls; and/or (iv) in a way that is otherwise illegal or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.
11.2. Applications and Content. You represent and warrant that you are solely responsible for the development, operation, and maintenance of your Application and for Your Content.
11.3. Public Software and Feedback. You represent and warrant that you will not use, and will not authorize any third party to use, any Public Software in connection with the Services in any manner that requires, pursuant to the license applicable to such Public Software, that any Nimbix Applications or Services be (a) disclosed or distributed in source code form, (b) made available free of charge to recipients, or (c) modifiable without restriction by recipients. “Public Software” means any software, documentation or other material that contains, or is derived (in whole or in part) from, any software, documentation or other material that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models, including, but not limited to software, documentation or other material licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (i) GNU’s General Public License (GPL), Lesser/Library GPL (LGPL), or Free Documentation License, (ii) The Artistic License (e.g., PERL), (iii) the Mozilla Public License, (iv) the Netscape Public License, (v) the Sun Community Source License (SCSL), (vi) the Sun Industry Standards License (SISL), (vii) the BSD License and (viii) the Apache License.
11.4. Authorization and Account Information. Each party represents and warrants that: (i) the information provided in connection with your registration for the Services is accurate and complete; (ii) (a) they are duly authorized to do business in the country or countries where they operate, (b) this Agreement has been authorized by all necessary corporate action.
11.5. Disclaimers. NIMBIX APPLICATIONS, THE MARKS, THE SERVICES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY US OR OUR LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS”. OTHER THAN AS PROVIDED, WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROVIDED OTHERWISE OR PROHIBITED BY APPLICABLE LAW, WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, , QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WE AND OUR LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS,. WE AND OUR LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS, INCLUDING THOSE THAT AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY PAYMENT SERVICES. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
11.5.5 Nimbix Representations and Warranties. Nimbix represents and warrants that:
Nimbix is organized, validly existing and in good standing under the laws of the jurisdiction of its organization; that this Agreement has been authorized by all necessary corporate (or other entity) action; and that this Agreement is the legal, valid, and binding obligation of Nimbix, enforceable against Nimbix in accordance with its terms.
Nimbix has obtained all consents, permits, licenses and authorizations necessary for or in connection with providing the Services to you. Nimbix’s entry into or performance of this Agreement does not and shall not violate any other agreement by which Nimbix is bound, and Nimbix has full power, authority, unrestricted ability and all rights necessary: (i) to enter into this Agreement and to perform all of Nimbix’s obligations hereunder; and (ii) to provide the Services for use as contemplated by this Agreement.
The Services and your use thereof as contemplated by this Agreement do not and shall not infringe on any intellectual property rights, rights of publicity or privacy, or other proprietary rights of any person, whether contractual, statutory or at common law.
11.6. Your Applications are Your Responsibility. In addition to the foregoing, we specifically disclaim all liability, and you shall be solely responsible for the development, operation, and maintenance of your Application and Your Content and you agree that you shall, without limitation, be solely responsible for:
11.6.1. The technical operation of your Application and all related equipment;
11.6.2. The accuracy and appropriateness of Your Content (including, among other things, any product-related materials);
11.6.3. ensuring that Your Content is not illegal and does not promote illegal activities, including without limitation any activities that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age;
11.6.5. any of your users’ or customers’ claims relating to your Application or any Services utilized in connection with your Application; and
11.6.6. your election to utilize sample code and libraries that may be made available on the NIMBIX Website, many of which may be provided by third parties and many of which we have not tested or screened in any way.
11.7. Links. The NIMBIX Website and/or the Services may contain links to websites that are not under our control (“Third Party Sites”). We are not responsible for the contents or functionality of any Third Party Sites or any website that can be accessed via links on any Third Party Site. We provide these links to you as a convenience and the inclusion of any such links does not constitute or imply our endorsement or validation of any Third Party Site.
11.8. Limitations of Liability. OTHER THAN FOR BREACHES OF CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONSE HEREUNDER, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, OTHER THAN FOR BREACHES OF CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONSE HEREUNDER, THE AGGREGATE LIABILITY OF EACH PARTY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
12.1. General. You agree to indemnify, defend and hold us, our affiliates and licensors, each of our and their business partners (including third party sellers on websites operated by or on behalf of us) and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys fees), arising out of or in connection with any claim arising out of (i) your use of the Services and/or Nimbix Applications in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, and/or applicable law, (ii) your Application, Your Content, or the combination of either with other applications, content or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion and/or marketing of your Application and/or Your Content, (iii) your violation of any term or condition of this Agreement or any applicable Additional Policies, including without limitation, your representations and warranties, or (iv) you or your employees’ or personnel’s negligence or willful misconduct.
12.2. Notification. We agree to promptly notify you of any claim subject to indemnification; provided that our failure to promptly notify you shall not affect your obligations hereunder except to the extent that our failure to promptly notify you delays or prejudices your ability to defend the claim. At our option, you will have the right to defend against any such claim with counsel of your own choosing (subject to our written consent) and to settle such claim as you deem appropriate, provided that you shall not enter into any settlement without our prior written consent and provided that we may, at any time, elect to take over control of the defense and settlement of the claim.
12.3 By Nimbix. Nimbix shall indemnify, and hold harmless you, your affiliates, yours and their respective directors, officers, employees, sublicensees, agents, attorneys, customers, successors or assigns (collectively, the “Indemnified Parties”) against and from any and all claims, liabilities, damages, costs, expenses, suits, actions, government procedures, taxes, penalties or interest (“Claim”), and shall pay all related damages, settlements and associated legal expenses, including reasonable attorneys’ fees that may be imposed on, incurred by or asserted against any Indemnified Party resulting from, arising out of, or relating to: (i) to Nimbix’s or its personnel’s misrepresentation or breach of any representation, warranty, obligation, or covenant of this Agreement, including any of documents attached hereto or incorporated herein by reference; (ii) Nimbix’s or its personnel’s performance of the Services or Nimbix’s other obligations under this Agreement; (iii) any claim that all or any portion of the Services or the use thereof infringes any intellectual property right of a third party, is a misappropriation of any third party trade secret, or violates any other rights of a third party (“IP Claim”); (iv) any violation of applicable law by Nimbix or its personnel; and (v) any negligence, willful misconduct, errors or omissions of Nimbix or its personnel.
13. Import and Export Compliance and Restrictions. Each party shall, in connection with this Agreement, comply with all applicable import, export and re-export control and regulations of any country, including the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, Council Regulation (EC) No 428/2009 on the control of exports of dual-use items and technology, and country-specific economic sanctions programs or embargoes adopted against countries or individuals under any applicable national or international legislation, including any measures implemented by the U.S. Office of Foreign Assets Control.
14.1. Notwithstanding anything to the contrary, either party may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of either party’s or any third party’s intellectual property and/or proprietary rights. You further acknowledge that our rights in the Nimbix Applications are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages. We further acknowledge that your rights in Your Content, your data, your applications, and your results from use of the Services are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages.
14.2. Governing Law. By using the Services, you agree that the regulations of the State of Texas, without regard to principles of conflicts, will govern this Agreement and any dispute of any sort that might arise between you and us. The parties expressly exclude application of the United Nations Convention for the International Sale of Goods to this Agreement.
15. Except as otherwise set forth herein, notices made by us to you under this Agreement that affect our customers generally (e.g., updated fees, etc.) will be conspicuously posted on the NIMBIX Website. Notices made by us under this Agreement for you or your account specifically (e.g., notices of breach and/or suspension) will be delivered to: _____________________
15.1. For notices made by you to us under this Agreement and for questions regarding this Agreement or the Services, you may contact Nimbix as follows: tos@Nimbix.net
16. Miscellaneous Provisions
16.1. Severability. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.
16.2. Waivers. The failure by either party to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect such party’s right to enforce such provision thereafter. All waivers by either party must be in writing to be effective.
16.3 Successors and Assigns. This Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
16.4. Entire Agreement. This Agreement constitutes the entire agreement between you and us regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between you and us, whether written or oral, regarding such subject matter.
16.5. No Endorsement. You understand and acknowledge that we are not certifying nor endorsing, and have no obligation to certify or endorse, any of your Applications or Your Content.
16.6. Relationship. Nothing in this Agreement is intended to or does create any type of joint venture, creditor-debtor, escrow, partnership or any employer/employee or fiduciary or franchise relationship between you and us.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date of the last signature below.