This Subscription Agreement sets forth the legally binding terms for the use of Nimbus-T Global products and services, including Nimbus-Key® ID and related solutions.
This subscription agreement (this “Agreement”) sets forth the legally binding terms for use of the Products and with respect to Order Forms (each as defined below). This Agreement is by and between Nimbus-T Global Inc. (“Nimbus-T”) and the company or entity on whose behalf you are accepting this Agreement (“Customer”).
You represent that you have the authority to bind Customer to the terms of this Agreement. By agreeing to the terms of this Agreement, by accessing, using or installing any part of the Products, or by executing an Order Form that references this Agreement, Customer expressly agrees to and consents to be bound by all of the terms of this Agreement. If Customer does not agree to any of the terms of this Agreement, Customer is prohibited from downloading, installing, activating or using the Products or executing an Order Form that references this Agreement.
The effective date of this Agreement is the date set forth on an Order Form (if applicable) or otherwise the date on which Customer downloads, installs, activates or uses the Products (the “Effective Date”). Collectively, Nimbus-T and Customer may be referred to as the “Parties” or in the singular as a “Party”.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
“Administrator” is an individual who has been granted administrative permissions by Customer to the Service.
“Affiliate(s)” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Customer Data” means all electronic data or information provided to the Service by (i) Customer and its Users and (ii) any Third Party Services (as defined herein). Customer Data may include Personal Data.
“Customer Identity” means, unless otherwise set forth on an Order Form, a unique set of identity attributes associated with (i) customers of Customer, if such customer is an individual, or (ii) employees, contractors, subcontractors or temporary staff of customers of Customer, if such customer is an entity, in each case acting on such individual’s behalf. Customer Identities are only permitted to access resources of Customer.
“Documentation” means Nimbus-T’s then current on-line administrator user’s manuals for the Products made generally available by Nimbus-T on its website.
“Malicious Code” means viruses, worms, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order Form” means any ordering document for Customer’s purchases from Nimbus-T that is executed by both Parties.
“Partner Identity” means, unless otherwise set forth on an Order Form, a unique set of identity attributes associated with an employee, contractor, subcontractor or temporary staff of a business partner of Customer, acting on behalf of such business partner and not for the benefit of such individual. Partner Identities are only permitted to access resources of Customer.
“Personal Data” has the meaning assigned to it in the DPA.
“Products” means the Software, Service, Trial Products and Beta Versions.
“Service” means hosted, software-as-a-service offerings provided by Nimbus-T that are identified on an Order Form or otherwise made available to Customer.
“Software” means the downloadable software programs offered by Nimbus-T that are identified on an Order Form or otherwise downloaded or installed by Customer, including in connection with its use of the Service.
“Support Services” means those maintenance and support services that Customer obtains from Nimbus-T as set forth in Section 2.7 below.
“Users” means any Administrator and individuals (including non-human devices) who are provisioned by Customer (or Customer’s authorized third parties accessing Customer’s services) to utilize the Products, or with whom Customer utilizes the Products, in connection with Customer’s use of the Products. Order Forms define the specific number and type of Users that Customer is authorized to permit to utilize the Products.
“Workforce Identity” means, unless otherwise set forth on an Order Form, a unique set of identity attributes associated with an employee, contractor, subcontractor, or temporary staff acting on Customer’s behalf.
2.1 Provision of Service.
Subject to the terms and conditions of this Agreement, Nimbus-T shall make the Service available to Customer during the term specified in the applicable Order Form(s) so that Customer may utilize the Service, solely for Customer’s business use, all in accordance with this Agreement, the applicable Order Form(s) and the Documentation. Customer agrees that its purchase of the Products is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Nimbus-T with respect to future functionality or features.
2.2 Software License Grant.
Subject to the terms and conditions of this Agreement, Nimbus-T hereby grants Customer, during the term specified in the applicable Order Form(s), a limited, non-exclusive, non-sublicensable, non-transferable license to install the Software, in machine-readable form only, and to use the Software solely for Customer’s business use, all in accordance with this Agreement, any applicable Order Form(s) and the Documentation.
2.3 Evaluation and Developer Licenses.
If Nimbus-T provides Customer with a trial, evaluation or developer license to the Products (the “Trial Products”), Customer agrees to use the Trial Products solely for evaluation purposes, in a non-production environment, for a thirty (30) day evaluation period unless a different period is otherwise agreed to in writing by Nimbus-T (the “Trial Period”). At the end of the Trial Period, Customer’s right to use the Trial Products automatically expires and Customer agrees to uninstall the Trial Products and return to Nimbus-T all copies or partial copies of the Trial Products and, upon request, certify to Nimbus-T in writing that all copies or partial copies of the Trial Products have been deleted from Customer’s computer libraries and/or storage devices and destroyed. If Customer desires to continue its use of the Trial Products beyond the Trial Period, Customer shall contact Nimbus-T to acquire a license to, or subscription for, the Trial Products for the applicable fee.
2.4 Beta Versions.
If Nimbus-T and Customer mutually agree in writing, Customer may receive beta, preview or other pre-release Products or features from Nimbus-T (“Beta Versions”). Beta Versions may not have been tested or debugged and are experimental, and any documentation may be in draft form. Nimbus-T may change or discontinue Beta Versions at any time without notice.
2.5 Trial Products and Beta Versions Disclaimers.
IN ADDITION TO ANY DISCLAIMERS IN SECTION 8.4, ANY TRIAL PRODUCTS AND BETA VERSIONS ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AT CUSTOMER’S SOLE RISK. NIMBUS-T SHALL NOT HAVE ANY LIABILITY FOR CUSTOMER’S USE OF THE TRIAL PRODUCTS OR BETA VERSIONS UNDER THIS AGREEMENT UNDER ANY THEORY OF LIABILITY. Nimbus-T does not provide support for Trial Products or Beta Versions. Trial Products and Beta Versions may be subject to reduced or different security, compliance and privacy commitments. The following Sections of this Agreement shall not apply to Trial Products or Beta Versions: 2.7, 6.6, 6.7, 8.1, 8.2, 8.3, 9.1 and 10.1.
2.6 Delivery, Installation and Acceptance of the Software.
(a) Delivery, Installation and Acceptance. The Software will be delivered to Customer by electronic download. Customer will be solely responsible for installing any Software as permitted under this Agreement unless otherwise set forth in an Order Form. All Software will be deemed accepted upon delivery.
(b) Nimbus-T Assistance. In the event that Customer requires any administration, training, installation, health check or similar services with respect to the Products, any such services and related Fees shall be set forth in an Order Form and such services shall be provided by Nimbus-T without the need for a separate professional services agreement unless otherwise agreed to by the Parties.
2.7 Support for Products.
Nimbus-T will provide those Support Services for the Products in accordance with Nimbus-T’s support agreement available (the “Support Policy”). Nimbus-T is not obligated under the terms of this Agreement to provide any customer service or support to any User other than Administrators; such responsibility (if any) shall remain with Customer.
2.8 Order Forms.
Customer and its Affiliates may place orders under this Agreement by executing Order Form(s). When an Affiliate of Customer signs an Order Form under this Agreement, the Affiliate shall be considered the Customer for purposes of such Order Form and shall be bound by the terms and conditions of this Agreement.
2.9 Resellers.
In the event that Customer purchases subscriptions to the Products through an authorized reseller of Nimbus-T (a “Reseller”), no Order Forms will be executed between Nimbus-T and Customer. Nimbus-T’s official ordering documentation with the Reseller will contain the details of the subscriptions to the Products (including the scope of permitted use, quantities of licenses, etc.), and references to Order Forms herein will refer to such documentation. Customer should obtain such details from the Reseller, but Nimbus-T can also confirm to Customer any such details of the subscription other than amounts payable. Fees and Taxes (if any) will be payable to Reseller, and the billing and payment terms will be determined pursuant to Customer’s agreement(s) with Reseller in lieu of Section 4 hereof. Resellers have no authority to modify any of the terms of this Agreement, and may not grant Customer any rights to the Products beyond what is set forth in the ordering documentation between Nimbus-T and Reseller.
Customer shall use the Products solely for its own business purposes in accordance with this Agreement and any related Order Form. Customer shall obtain any required authorizations or consents from Users and Third-Party Providers for the transmission of Customer Data to Nimbus-T and other third parties in connection with the Products and related processing by such persons, including as may be necessary under any data protection laws and regulations.
Customer shall not:
4.1 Fees.
Customer shall pay all fees specified in any Order Forms hereunder (“Fees”). Except as otherwise specified, all Fees are based on the Products and Services purchased, not actual usage, and payment obligations are non-cancelable. Fees paid are non-refundable unless otherwise stated in this Agreement.
4.2 Invoicing and Payment.
Unless otherwise stated in the applicable Order Form, invoices are due within thirty (30) days of invoice date. Late payments may accrue interest at the rate of 1.5% per month or the maximum rate permitted by law, whichever is less.
4.3 Taxes.
Customer is responsible for all taxes, duties or governmental assessments associated with its purchases hereunder, excluding taxes based on Nimbus-T’s net income. If Nimbus-T has the legal obligation to pay or collect taxes for which Customer is responsible, Nimbus-T shall invoice Customer and Customer shall pay that amount.
4.4 Suspension of Service and Acceleration.
If any amount owing by Customer under this Agreement is thirty (30) or more days overdue, Nimbus-T may, without limiting its other rights, suspend Services until such amounts are paid in full, provided that Nimbus-T gives Customer at least ten (10) days’ prior notice.
4.5 Audit.
Nimbus-T may, at its expense and upon reasonable notice, audit Customer’s use of the Products to verify compliance. Customer agrees to cooperate fully and provide reasonable access to records as needed for verification.
5.1 Definition.
“Confidential Information” means all non-public information disclosed by one Party (“Disclosing Party”) to the other (“Receiving Party”), including business and technical information, trade secrets, and proprietary data.
5.2 Protection.
The Receiving Party shall use the same degree of care to protect the Disclosing Party’s Confidential Information as it uses to protect its own, but in no event less than reasonable care. The Receiving Party shall not disclose any Confidential Information to any third party except as expressly permitted herein.
5.3 Exceptions.
Confidential Information shall not include information that: (i) is or becomes publicly available through no fault of the Receiving Party; (ii) was in the Receiving Party’s possession prior to receipt; (iii) is received lawfully from a third party; or (iv) is independently developed without reference to the Disclosing Party’s information.
5.4 Compelled Disclosure.
The Receiving Party may disclose Confidential Information to the extent required by law, provided it gives prompt notice and reasonable cooperation to allow the Disclosing Party to seek protective measures.
6.1 Ownership.
As between Nimbus-T and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Nimbus-T shall not access Customer Data except as necessary to provide the Services, prevent or address service or technical issues, or as required by law.
6.2 Security.
Nimbus-T will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data consistent with industry standards and as described in Nimbus-T’s documentation.
6.3 Data Protection Addendum.
Where applicable, processing of Personal Data under this Agreement shall be governed by the Nimbus-T Data Protection Addendum (“DPA”), which forms part of this Agreement.
6.4 Customer Responsibilities.
Customer is responsible for (i) Users’ compliance with this Agreement, (ii) the accuracy, quality, and legality of Customer Data, and (iii) ensuring appropriate consents are obtained for Customer Data provided to Nimbus-T.
7.1 Ownership of Nimbus-T Technology.
Nimbus-T and its licensors own all rights, title and interest in and to the Products and related intellectual property, including all enhancements, modifications and derivative works thereof. No rights are granted to Customer except as expressly set forth herein.
7.2 Feedback.
Customer may from time to time provide suggestions or feedback regarding the Products. Nimbus-T may freely use, copy, disclose, and otherwise exploit such feedback without restriction or compensation to Customer.
8.1 Mutual Warranties.
Each Party represents that it has the legal power to enter into this Agreement.
8.2 Nimbus-T Warranties.
Nimbus-T warrants that: (i) it will provide the Products in a manner consistent with industry standards; and (ii) the functionality of the Products will not be materially decreased during the term. Customer’s exclusive remedy for a breach of this warranty shall be the re-performance of the Services or, if Nimbus-T fails to cure within thirty (30) days, termination of the affected Services and refund of prepaid fees.
8.3 Customer Warranties.
Customer represents that it will use the Products in compliance with all applicable laws and regulations and will not violate third-party rights.
8.4 Disclaimers.
EXCEPT AS EXPRESSLY PROVIDED, THE PRODUCTS ARE PROVIDED “AS IS.” NIMBUS-T MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
9.1 By Nimbus-T.
Nimbus-T shall defend Customer against any claim alleging that the Products infringe a valid patent, copyright or trademark of a third party, and shall indemnify Customer from damages and costs finally awarded, provided that Customer promptly notifies Nimbus-T and allows Nimbus-T sole control of the defense.
9.2 By Customer.
Customer shall indemnify Nimbus-T against claims arising from (i) Customer Data or content, (ii) Customer’s use of the Products in violation of this Agreement, or (iii) any combination of the Products with Customer’s systems or data causing infringement.
9.3 Exclusions.
Nimbus-T shall have no liability for claims arising from modifications, unauthorized use, or combination with non-Nimbus-T products.
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER FOR THE PRODUCTS GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, DATA OR BUSINESS INTERRUPTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.1 Term of Agreement.
This Agreement commences on the Effective Date and continues until all subscriptions hereunder have expired or been terminated.
11.2 Termination for Cause.
Either Party may terminate this Agreement for cause upon thirty (30) days’ written notice of a material breach if such breach remains uncured at the expiration of such period.
11.3 Effect of Termination.
Upon termination, all rights granted hereunder immediately terminate. Customer shall cease all use of the Products and delete all copies of Software in its possession. Sections 5–10 and 12 shall survive termination.
12.1 Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A., without regard to its conflict of laws principles.
12.2 Notices.
All notices under this Agreement shall be in writing and shall be deemed given when delivered personally, sent by certified mail, or by recognized courier to the address stated in the Order Form or such other address as either Party may designate.
12.3 Assignment.
Neither Party may assign this Agreement without the prior written consent of the other, except to an Affiliate or in connection with a merger, acquisition, or sale of substantially all assets.
12.4 Entire Agreement.
This Agreement, together with all Order Forms and any incorporated policies or addenda, constitutes the entire agreement between the Parties and supersedes all prior proposals or agreements.
12.5 Severability.
If any provision of this Agreement is held unenforceable, the remaining provisions shall remain in full force and effect.
12.6 Force Majeure.
Neither Party shall be liable for delay or failure due to causes beyond its reasonable control, including acts of God, internet failure, or governmental actions.
12.7 Relationship of the Parties.
The Parties are independent contractors. Nothing herein shall be construed to create a partnership, joint venture, or agency relationship.
12.8 Waiver.
Failure to enforce any right or provision shall not constitute a waiver unless acknowledged in writing by the Party charged with such waiver.
12.9 Counterparts; Electronic Execution.
This Agreement may be executed in counterparts, including electronically, each of which shall be deemed an original and all of which together shall constitute one instrument.
Patented Technology