These Terms and Conditions of are entered into by and between you ("Customer" or "You") and Nymble IO, Inc. ("Provider," "we," or "us"). Provider and Customer may be referred to individually as a "Party" and collectively as the "Parties." The following terms and conditions, together with any Subscription, Order Forms or other documents they expressly incorporate by reference (collectively, the "Agreement"), govern your access to and use of nymble.io and our Services.
FOR VISITORS TO OUR WEBSITE:
This Website is offered and available to users who are 18 years of age or older. By using this Website, you represent and warrant that you are of legal age to form a binding contract with Provider. If you do not meet all of these requirements, you must not access or use the Website.
We may revise and update the visitor terms from time to time in our sole discretion. All changes are effective immediately when we post them here, and apply to all access to and use of the Website thereafter.
Your continued use of the Website following the posting of any revisions means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users.
The Website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by Provider, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website, except as expressly permitted by us.
You may use the Website only for lawful purposes and in accordance with this Agreement. Additionally, you agree not to: use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website; or use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.
This Website may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Provider, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Provider. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties. If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
THE WEBSITE AND ITS CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER PROVIDER NOR ANY PERSON ASSOCIATED WITH PROVIDER MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. TO THE FULLEST EXTENT PROVIDED BY LAW, PROVIDER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
All other feedback, comments, requests for technical support, and other communications relating to the Website should be directed to: [email protected].
These Terms of Service, a Subscription, an Order Form, or any additional document incorporated herein are collectively referred to as the “Agreement” and is a legally binding agreement between Nymble IO, Inc., and you (the “Customer”). Customer and Nymble IO, Inc. may each be referred to as a “Party” and collectively referred to as the “Parties”.
This Agreement governs your access to and use of the Services. By accepting this Agreement, either by purchasing a Subscription and/or executing an Order Form that references this Agreement, you agree to the terms of this Agreement. If you are entering into this Agreement on behalf of a company, an enterprise, or other legal entity, you represent that you have the authority to bind such legal entity and its affiliates to these terms and conditions. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use these Services.
“Affiliate” means a person or entity that owns is owned by or is under common control of a Party. “Control” means that a person or entity owns more than 50% of the equity interest of any entity and/or has the ability to control the management of such an entity.
"Availability" means the total available minutes in a given calendar month less any minutes attributable to a Scheduled Downtime. Availability is calculated and viewable at https://status.nymble.io.
“Authorized Users” means individuals who are authorized by Customer to use the Platform and Services with varying levels of control and access specified by Customer and who have been supplied user identifications and passwords by Customer. Authorized Users may include the employees, consultants, contractors, agents, or other designees of Customer and its Affiliates, but shall not include any employee or agent of any Nymble IO, Inc. competitor.
“Critical Malfunction” means Nymble IO, Inc. administrative interfaces at app.nymble.io are unreachable, or external, mission-critical endpoints are returning errors.
“Customer Information” means all information and data submitted to Nymble IO, Inc. by or on behalf of Customer in connection with the creation and management of Customer’s account for the Services.
“Documentation” means the instruction manuals, guides, and frequently asked questions made available on nymble.io.
“Monitored Vendor Count” means the total number of products monitored for privacy scores, litigation, or document monitoring by Nymble IO, Inc. on behalf of Customer.
“Monthly Unique Visitors (MUVS)” means the number of unique users who access the Customer’s links on a monthly basis as measured.
“Platform” means the Nymble IO, Inc. proprietary Software as a Service including but not limited to hosted software SDKs, libraries, APIs, and user interfaces.
“Privacy Regulation” means the California Consumer Privacy Act and the California Consumer Privacy Act Regulations (together, the “CCPA”), the Privacy and Electronic Communications Directive 2002/58/EC (“ePrivacy Directive”), the General Data Protection Regulation (EU) 2016/679 (“GDPR”) and the Lei Geral de Proteçāo de Dados (“LGPD”).
“Order Form” means a document issued by Nymble IO, Inc. and executed or otherwise agreed upon by authorized representatives of the Customer, which specifies, among other things and as applicable, a description of the Services, the Fees, and any other details specifically related to the Services.
“Regulatory Agency” means an independent governmental body established by legislative act and charged with the supervision, regulation or enforcement of a Privacy Regulation.
"Scheduled downtime" means regular Platform maintenance, upgrades, and may take place on Sunday mornings between midnight and 4 AM U.S. Eastern Time.
“Services” means access to the platform and services, via an account, made available by Nymble IO, Inc., including user guides, documentation, and help/training materials provided by Nymble IO, Inc..
“Service Start Date” means, for each Subscription or Order Form, the earlier of (i) the date set forth on the Order Form or (ii) the first date on which Customer is granted access to the Services purchased pursuant to the Order Form.
“Software as a Service” (“SaaS”) means a software delivery model in which a hosted software platform is made available on a Subscription basis.
“Subscription” means creation of an account or a purchase with or without a credit card activating access to the software as a service.
“Usage Data” means all data, information, and statistics collected by Nymble IO, Inc. related to the Customer’s consent and data activity, including, without limitation, those pertaining to the consents, traffic, and PII storage.
2. Nymble IO, Inc. Services.
2.1 Services. During the Term (as defined herein), subject to the terms and conditions of this Agreement for such Services, and solely for Customer’s business purposes, Nymble IO, Inc. shall make the Services available to Customer in accordance to an active account, Subscription or with an executed Order Form.
2.2. Updates and Functionalities. Customer acknowledges that, from time to time, Nymble IO, Inc. may apply updates to the Services and that such updates may result in changes in the appearance and/or functionality of such Platform and Services. Excluding the addition of wholly new products, Nymble IO, Inc. will provide, implement, configure, install, support, and maintain at its own cost any and all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches, and modifications to the Services (collectively, the “Updates”). In no way is Nymble IO, Inc. required to customize its Services for Customer, and Nymble IO, Inc. does not represent or warrant that its Platform or Services will be compatible with Customer’s systems.
2.3 Acceptable Use Policy.
- be responsible for Authorized Users’ compliance with this Agreement;
- use commercially reasonable efforts to prevent unauthorized access to or use of the Platform or Services, including keeping passwords and usernames confidential and not permitting any third-party to access or use its or any of its Authorized Users’ usernames, passwords, or Customer account for the Services;
- be solely responsible and liable for all activity knowingly conducted through its Customer account in connection with the Services;
- promptly notify Nymble IO, Inc. if Customer becomes aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of Customer’s (or any Authorized User’s) username, password, or Customer account; and
- use, or otherwise access in connection with Customer’s use thereof, the Services only in accordance with applicable laws and government regulations;
Customer must not:
- make the Platform or Services available to anyone other than its Authorized Users;
- sell, trade, or otherwise transfer the Platform or Services to another party;
- use the Services to store or transmit any content that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law; upload to, or transmit from, the Platform or Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component;
- attempt to reverse engineer, decompile, hack, disable, interfere with, disassemble, modify, copy, translate, or disrupt the features, functionality, integrity, or performance of the Platform or Services (including any mechanism used to restrict or control the functionality of the Platform or Services), any third-party use of the Platform or Services, or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law);
- attempt to store fake consent records or other data records;
- attempt to load test the Platform or Services without prior written approval from Nymble IO, Inc.;
- attempt to modify or cause to be hidden any Nymble IO, Inc. “powered by” branding without prior written consent.
- attempt to gain unauthorized access to the Platform or Services or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the Platform or Services;
- access the Platform or Services in order to build a similar or competitive product or service to Platform or Services;
- commit any act or do anything which might: (i) reasonably be considered immoral, deceptive, or obscene; (ii) injure, tarnish, damage or otherwise negatively affect the reputation and goodwill associated with Nymble IO, Inc.;
- knowingly implement Nymble IO, Inc. in a manner which is inconsistent with data privacy laws of Customer's website visitor(s) or application user(s); or
- authorize, assist, or encourage any third-party to do any of the above.
Nymble IO, Inc. may, with prior written notice to Customer, suspend or terminate access to the Platform or Services for a violation of this Section 2.3 or for any abusive practices that degrade the performance of any Service for Customer and/or other Nymble IO, Inc. customers. In the event of such a suspension, if Customer does not reasonably resolve issue within thirty (30) days, Nymble IO, Inc. may terminate this Agreement.
2.4 Non-Exclusivity. Customer acknowledges that the rights granted to it under this Agreement and any Subscription or Order Form are non-exclusive and that nothing in this Agreement or any Order Form will be interpreted or construed to prohibit or in any way restrict Nymble IO, Inc.’s right to license, sell, or otherwise make available the Platform or Services to any third-party.
3. Intellectual Property.
3.1 Platform and Services. As between Customer and Nymble IO, Inc., Nymble IO, Inc. retains all right, title, and interest in and to the Platform and Services. Nothing herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely affect the Services or any of Nymble IO, Inc.’s rights or interests therein or any other Nymble IO, Inc. intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest in and to the Services not expressly granted in this Agreement are reserved by Nymble IO, Inc..
3.2 Feedback. Customer may from time to time provide suggestions, comments, or other feedback to Nymble IO, Inc. with respect to the Services (“Feedback”). Feedback, even if designated as confidential by Customer and, notwithstanding Article 5 of this Agreement, shall not create any confidentiality obligation for Nymble IO, Inc.. Customer shall, and hereby does, grant to Nymble IO, Inc. a non-exclusive, worldwide, perpetual, irrevocable, transferable, royalty-free, license to use the Feedback for the purpose of improving its Platform or Services.
3.3 Customer and Usage Data. Customer hereby grants Nymble IO, Inc. a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 10.1) license, with the right of sublicense, to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, index the Customer’s Usage Data and Customer Information for the sole purpose of providing and developing the Platform and Services to Customer and supporting Customer’s use of the Platform and Services. Nymble IO, Inc. may use aggregated and anonymized Usage Data for analytics to improve the Platform and Services, provided that such Usage Data cannot be in any way linked to Customer or any individual person or used to identify Customer or any individual person. Subject only to the limited license expressly granted herein, Customer and its Authorized Users shall retain all right, title and interest in and to, and all intellectual property rights in the Customer Information. Nothing in this Agreement will confer on Nymble IO, Inc. any right of ownership or interest in or to or the intellectual property rights in the Customer Information.
3.4 Data Processing. Customer is solely responsible for the Customer Information submitted to the Platform by Customer. Nymble IO, Inc. may use the Customer Information or Usage Data to provide the Services, as provided herein and in accordance with applicable data privacy laws. Customer is a Business and Nymble IO, Inc. is a Service Provider for purposes of the California Consumer Privacy Act and Customer is a Controller and Nymble IO, Inc. is a Processor for purposes of the General Data Protection Regulation. Nymble IO, Inc. will not: (a) sell the Customer Information or Usage Data; (b) retain, use or disclose the Customer Information or Usage Data for any purpose other than for the specific purpose of performing the Services; (c) retain, use or disclose the Customer Information or Usage Data for a commercial purpose other than providing the Services; or (d) retain, use or disclose the Customer Information or Usage Data outside of the direct business relationship between Customer and Nymble IO, Inc..
4. Fees and Payment.
4.1 Fees. Customer will pay all fees as and when described in a Subscription or Order Form(s) (the “Fees”).
4.2 Invoicing. Nymble IO, Inc. shall invoice Customer for the fees in the currency set forth on the applicable Subscription or Order Form. Unless otherwise stated on an Order Form, all undisputed invoices shall be payable on the schedule provided in an Order Form. Any disputed amounts shall not affect the payment of non-disputed amounts. Customer shall make payments to Nymble IO, Inc. online automatically with a Subscription or via the entity and address set forth in Order Form and any subsequent invoice, either via check, wire, credit card, automated clearing house (“ACH”), or other payment method made available by Nymble IO, Inc..
4.3 Auto-Renewal. Customer agrees and authorizes Nymble IO, Inc. to issue a recurring charge for Customer’s utilization of the Platform and Services absent termination consistent with Article 6. The total fees paid by Customer for any renewal term shall not increase by more than five percent (10%) over the total fees paid by Customer in the previous term for service in the same tier of usage.
4.4 Re-Pricing of Fees and Fee True-Up. In the event it is determined that the Customer’s usage exceeds the quantity set forth in a Subscription tier or Order Form, Customer agrees that Nymble IO, Inc. may adjust the fees set forth within the Subscription tier or Order Form and Customer shall pay any additional fees commensurate with the actual quantities and prices listed for Subscriptions or as attached to an Order Form.
4.5 Late Payment. If any undisputed amounts invoiced hereunder as Fees or otherwise are not received by Nymble IO, Inc. by the due date, then at Nymble IO, Inc.’s discretion, such charges may accrue late interest at the rate of 18% per year or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. In addition, upon 30 days’ written notice to Customer provided after the due date of any undisputed fees, Nymble IO, Inc. may suspend Customer’s access to the Services, if any, if Nymble IO, Inc. has not received the amounts invoiced hereunder at the expiration of such period as defined by the Subscription or in the Order Form.
4.6 Taxes and Withholdings. Customer is responsible for paying all taxes, assessments, charges, fees, and levies that may be levied or based upon Customer’s Subscription to the Services, and any interest, fines, and penalties with respect thereto, imposed by any governmental authority. If Nymble IO, Inc. has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4.6, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Nymble IO, Inc. with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. Confidential Information and Security Requirements.
5.1 Confidential Information. Each Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of a like-kind (but in no event less than reasonable care consistent with industry standards) and will not disclose or use any Confidential Information (as defined below) of the other Party for any purpose outside of the scope of this Agreement, and each Party shall limit access to Confidential Information to those of its, or its Affiliates’, employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the receiving Party containing protections no less stringent than those herein. In this Agreement, “Confidential Information” means all information, data, and financial information relating to the business, commercial strategies, pricing, personnel, customers, products, or services of each Party. Confidential Information includes (i) Each party’s proprietary system offerings, including the Platform and/or Services, along with documentation and plans related thereto; (ii) Passwords, authorization keys, or codes used to access or operate such system offerings; (iii) Any results, Usage Data, or statistics collected through the use of the system offerings; or (iv) Any nonpublic business information that is either marked physically or identified orally as “confidential” or “proprietary.” For the avoidance of doubt, Customer Information and Usage Data will be the Confidential Information of Customer.
Confidential Information excludes any information that
- was in the receiving party’s possession before receiving it from the disclosing party;
- is provided to the receiving party by a third-party without restriction on use or disclosure and without breaching any rights of the disclosing party;
- is or becomes generally known or available to, or accessible by, the public through no act or omission of the receiving party; or
- was or is independently developed by the receiving party without reference to the disclosing party’s Confidential Information.
In the event the receiving party or any representative of the receiving party becomes legally compelled (by law, rule, regulation, subpoena, or similar court process) to disclose any of the Confidential Information, the receiving party will (if permitted to do so) provide the discloser with notice of such circumstances and will limit such disclosure to the required disclosure.
5.2 Security Requirements. Nymble IO, Inc. has implemented technical and organizational security measures consistent with the industry standards. However, Nymble IO, Inc. cannot guarantee that unauthorized third-parties will never be able to defeat those measures and expressly denies any responsibility for damages, monetary or otherwise, resulting from unauthorized third-party access to Customer’s account or use, alteration, or disclosure of the Customer Information or Usage Data except in the event of Nymble IO, Inc.' gross negligence or willful misconduct.
6. Term and Termination.
6.1 Term of Agreement. This Agreement shall commence on the Service Start Date (the “Effective Date”) and shall continue in effect until all Subscriptions or Order Forms have expired or this Agreement has been terminated in accordance with this Article 6 (the “Term”).
6.2 Term of Subscriptions. The term of each Subscription shall start on the Service Start Date specified on the Subscription and shall continue for the term specified therein. Except as expressly stated otherwise in an Subscription, all Subscriptions shall automatically renew for subsequent renewal periods, unless a Subscription is canceled within the product or a party gives written notice of non-renewal at least 30 days prior to the end of the then-current term. Upon renewal, Nymble IO, Inc. reserves the right to increase the Fees for Services by providing Customer written notice thereof (which notice may be provided by email) at least 30 days prior to the end of the then-current term.
6.3 Termination for Cause. Either Party may terminate this Agreement for cause (i) upon 30 days' written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. No refund shall be issued in the event of termination of Customer for cause by Nymble IO, Inc..
6.4 Effects of Termination. Upon termination of this Agreement for any reason, all Subscriptions will automatically terminate and: (i) Customer will immediately cease all use of the Services; (ii) Customer will have no further access to its Customer account provided by Nymble IO, Inc., and (iii) Customer will pay Nymble IO, Inc. all unpaid Fees owing to Nymble IO, Inc.. If Customer terminates this Agreement in accordance with Section 6.3, Nymble IO, Inc. may in good faith, refund to Customer any unearned Fees that Customer paid in advance for the Services but is not required to. If Nymble IO, Inc. terminates this Agreement in accordance with Section 6.3, then, without limiting any other remedies that may be available, Customer will pay any unpaid Fees covering the remainder of the term of each Subscription after the date of termination. In no event will termination relieve Customer of its obligation to pay any amounts and Fees payable to Nymble IO, Inc. for the period prior to the date of termination and other obligations that survive termination of this Agreement. At such time that all unpaid Fees owing to Nymble IO, Inc. have been received by Nymble IO, Inc., Nymble IO, Inc. shall return to Customer all Customer Information and Usage Data in a form to be agreed upon by the parties at no additional charge to Customer.
6.5 Survival. Any provision of this Agreement that, either by its terms or to give effect to its meaning, must survive, and such other provisions that expressly or by their nature are intended to survive termination shall survive the expiration or termination of this Agreement. Without limiting the foregoing, Section 4.1 as well as Articles 3, 5, 7-10 shall survive the expiration or termination of this Agreement.
7. Warranties and Warranty Disclaimer.
7.1 Mutual Warranties. Each Party represents and warrants that it has the power and authority to enter into this Agreement and to perform its obligations and duties under this Agreement and that doing so is not in conflict with any other agreement.
7.2 Nymble IO, Inc. Warranties. Nymble IO, Inc. warrants that (i) subject to Section 2.2, the Services will materially perform in accordance with the applicable documentation and the functionality of the Services will not be materially decreased during the term of the applicable Subscription; and (ii) the Services do not contain any malicious code or viruses. For any breach of the above warranties, Customer’s exclusive remedies are those described in Section 6.3. (i).
7.3 Disclaimer. SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT, THE CONTENTS OF THIS SECTION 7.3 MAY NOT APPLY TO CUSTOMER. EXCEPT AS EXPRESSLY PROVIDED SECTIONS 7.1 AND 7.2, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, Nymble IO, Inc. EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Nymble IO, Inc. SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NON-INFRINGEMENT, THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. IN ADDITION, Nymble IO, Inc. DOES NOT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Nymble IO, Inc. OR ELSEWHERE NOR ANY COURSE OF DEALING WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THE SERVICES AND ANY INFORMATION PROVIDED BY Nymble IO, Inc. ARE NOT LEGAL ADVICE AND CUSTOMER IS RESPONSIBLE FOR ITS OWN COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS.
Nymble IO, Inc. DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING USAGE DATA, CUSTOMER INFORMATION, AND ANY CONTENT OR SERVICES PROVIDED BY THIRD-PARTIES. Nymble IO, Inc. DOES NOT CONTROL OR VET CUSTOMER INFORMATION AND IS NOT RESPONSIBLE FOR WHAT CUSTOMERS POST, TRANSMIT, OR SHARE ON OR THROUGH THE SERVICES. Nymble IO, Inc. EXPRESSLY DENIES ANY RESPONSIBILITY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR THE INFORMATION CONTAINED THEREIN AS WELL AS YOUR CUSTOMER ACCOUNT AND CUSTOMER INFORMATION.
8. Mutual Indemnification.
8.1 Indemnification by Nymble IO, Inc.. Nymble IO, Inc. shall defend, indemnify, and hold harmless Customer its Affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature that are in connection with or arising out of a third-party claim alleging that the use of the Services or Platform as permitted hereunder infringes a valid intellectual property right (a “Claim”) and shall indemnify Customer for any damages finally awarded against, and for reasonable attorneys’ fees incurred by Customer in connection with any such Claim.
Nymble IO, Inc. will have no liability for any Claim to the extent it arises from:
- a modification of the Platform or Services by or at the direction of Customer or an Authorized User;
- use of the Platform or Services in violation of this Agreement or applicable law;
- use of the Platform or Services by Customer after Nymble IO, Inc. notifies Customer to discontinue use because of an infringement or misappropriation claim;
- the customer's combination, operation, or use of the Platform or Services with any other software, program, or device not provided or specified by Nymble IO, Inc. to the extent such infringement would not have arisen but for such combination, operation, or use; or
- Customer’s use of the Platform or Services in a manner that is inconsistent with its intended use.
If a Service has become, or in Nymble IO, Inc.’s opinion is likely to become, the subject of any such Claim, Nymble IO, Inc. may at its option and expense:
- procure for Customer the right to continue using the Service as set forth hereunder;
- replace or modify the Service or certain functionalities to make it non-infringing; or
- if options (a) or (b) are not reasonably practicable, terminate either this Agreement or the Subscription for such Service.
This Section 8.1 sets forth Nymble IO, Inc.’s sole liability (and the Customer's sole remedy) regarding infringement or misappropriation of third-party rights.
8.2 Indemnification by Customer. Subject to Nymble IO, Inc.’s compliance with Section 8.3, Customer shall defend, indemnify, and hold harmless Nymble IO, Inc., its Affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature that are in connection with or arising out of a third-party claim relating to, or arising from, Customer Information, Usage Data, or Customer’s breach of Section 2.3 or Section 7.1.
8.3 Indemnification Procedure. The indemnified Party shall (i) promptly give written notice of the claim to the indemnifying Party, although failure to provide prompt notice will not relieve the indemnifying Party of its obligation to indemnify unless the indemnifying Party is materially prejudiced by the delay; (ii) give the indemnifying Party sole control of the defense and settlement of the claim (provided that the indemnifying Party may not settle or defend any claim without the indemnified Party’s prior written consent unless it unconditionally releases the indemnified Party of all liability); and (iii) provide the indemnifying Party with reasonable cooperation and assistance at the indemnifying Party’s expense.
9. Limitation of Liability.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID BY CUSTOMER FOR THE SERVICES SUBJECT TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT.
ANY CLAIMS OR DAMAGES THAT ONE PARTY MAY HAVE AGAINST THE OTHER PARTY SHALL ONLY BE ENFORCEABLE AGAINST THE PARTIES TO THIS AGREEMENT AND NOT ANY OTHER ENTITY OR ITS OFFICERS, DIRECTORS, REPRESENTATIVES OR AGENTS.
THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE INDEMNITY OBLIGATIONS SET FORTH IN THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF Nymble IO, Inc. WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR SHALL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF Nymble IO, Inc. FOR (I) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF Nymble IO, Inc., ITS EMPLOYEES, OR ITS AGENTS; (II) WILLFUL MISCONDUCT, FRAUD, OR GROSS NEGLIGENCE OF Nymble IO, Inc. OR ITS EMPLOYEES; OR (III) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
10.1 Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations hereunder, without the prior written consent of the other Party, and any attempted assignment without such consent will be void. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all exhibits), without the consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its shares or assets to an entity that is not a competitor to the other Party. In the event the non-assigning Party determines in good faith that the assignment would be or is to a competitor, such non-assigning Party shall be entitled to terminate this Agreement immediately.
10.2 Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither Party has any authority of any kind to bind the other in any respect.
10.3 Publicity. Customer agrees that Nymble IO, Inc. may disclose that Customer is a customer of the Services in Nymble IO, Inc. advertising, press, promotion, and similar public disclosures. In addition to the foregoing, Customer hereby grants Nymble IO, Inc. a non-exclusive license to list Customer’s name and display Customer’s logo as an Nymble IO, Inc. customer on Nymble IO, Inc.’s website.
10.4 Force Majeure. Except for payment obligations, neither Party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such Party’s reasonable control, including the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lockouts or labor disruptions; and any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
10.5 Counterparts and Interpretation. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one single agreement between the Parties. Headings are for convenience only and are not to be considered in construing or interpreting this Agreement. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or interference against the Party drafting this Agreement in construing or interpreting the provisions hereof.
10.6 Amendment. No amendment, supplement, restatement, or termination of any provision of this Agreement shall be valid unless it is in writing and signed by each Party to this Agreement at the time of the amendment, supplement, restatement, or termination.
10.7 Severability. Each provision of this Agreement is severable. If any provision of this Agreement is or becomes illegal, invalid, or unenforceable in any jurisdiction, the illegality, invalidity, or unenforceability of that provision will not affect the legality, validity, or enforceability of the remaining provisions of this Agreement or of that provision in any other jurisdiction.
10.8 Notices. For communication about Customer’s account and services, Nymble IO, Inc. may email Customer or contact its Authorized Users through its Customer account or through other means including email, mobile number, telephone, or delivery services such as the postal service. Customer acknowledges and agrees that Nymble IO, Inc. shall have no liability associated with or arising from Customer’s failure to maintain accurate contact or other information, including, but not limited to, Customer’s failure to receive critical information about the Services. Notices to Nymble IO, Inc. must be delivered by email to [email protected].
10.9 Waivers. No waiver of any provision of this Agreement is binding unless it is in writing and signed by all Parties to this Agreement, except that any provision that does not give rights or benefits to particular Parties may be waived in writing, signed only by those Parties who have rights under, or hold the benefit of, the provision being waived if those Parties promptly send a copy of the executed waiver to all other Parties. No failure to exercise and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
10.10 Governing Law, Jurisdiction and Venue. This Agreement and each of the documents contemplated by or delivered under or in connection with this Agreement are governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in the State of Minnesota. Each of the parties irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in Minnesota, as applicable, for any matter arising out of or relating to this Agreement, except that in actions seeking to enforce any order or any judgment of such federal or state courts located in Minnesota, such personal jurisdiction shall be nonexclusive.
10.11 Binding Arbitration. It is the intention of the Parties to use their reasonable best efforts to informally resolve, where possible, any dispute, claim, demand or controversy arising out of the performance of this Agreement by mutual negotiation and cooperation, a period of which shall be no less than five (5) business days from first notice of any such dispute. In the event the Parties are unable to informally resolve any such dispute, including relating to this Agreement, the Parties agree to arbitrate any controversy, claim or dispute between them arising out of or in any way related to this Agreement and any disputes upon termination of the relationship, including claims for violation of any local, state or federal law, statute, regulation or ordinance or common law. The arbitration will be conducted in Travis County, Texas, by a single neutral arbitrator and in accordance with the American Arbitration Association’s (“AAA”) then current Commercial Arbitration Rules’ expedited procedures for resolution. Notwithstanding the provision in the preceding or subsequent paragraph with respect to applicable substantive law, the arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). The arbitrator shall have the power to enter any award that could be entered by a judge of the trial court of the State of Texas, and only such power, and shall follow the law. In the event the arbitrator does not follow the law, the arbitrator will have exceeded the scope of his or her authority and the parties may, at their option, file a motion to vacate the award in court. The parties agree to abide by and perform any award rendered by the arbitrator. Judgment on the award may be entered in any court having jurisdiction thereof. The prevailing party shall be entitled to costs and attorneys’ fees.
10.12 Entire Agreement. The terms of this Agreement, together with any and all Exhibits and other terms incorporated by reference constitute the entire agreement between the Parties with respect to the subject matter thereof and supersede any prior or inconsistent agreements, negotiations, representations, and promises, written or oral, with respect to the subject matter and is binding upon the Parties and their permitted successors and assigns. In the event of any conflict between this Agreement and the terms of an Order Form, the provisions of the Order Form shall prevail. The terms of this Agreement will apply to all orders submitted to Nymble IO, Inc. and shall supersede any additional terms that may be incorporated in a purchase Subscription, Order Form or any other Customer-generated form. Any such Customer terms shall be null and void.