This TERMS OF SERVICE (this “Agreement“) is made between Managing Solutions International, LLC (“MSI”) and you, or, if you represent an entity or other organization, that entity or organization (in either case “You”).
MSI provides certain business management services relating to time and attendance tracking, CRM and project management, and billing and invoicing (the “Services”) though its Nimbulis software as a service Nimbulis Platform (the “NimbulisPlatform”), which may be accessed through the website located at www.nimbulis.com, or any other website operated by Nimbulis with a hyperlink to this Agreement (each website shall be considered part of the Nimbulis Platform for purposes of this Agreement).
All access to and use of the Services available through the Nimbulis Platform is subject to the terms of this Agreement and the Sales Agreement (whether in the form of an online Sales Agreement submitted through the Nimbulis Platform, by way of email, phone or otherwise) with MSI (Your “Sales Agreement”).
PLEASE CAREFULLY READ THIS AGREEMENT. by ACCESSING OR USING THE Nimbulis Platform OR SERVICES (or BY SUBMITTING A SALES AGREEMENT for any services), YOU agree THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, MSI IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE Nimbulis Platform or SERVICES and YOU MUST NOT ACCESS OR USE THE Nimbulis Platform or SERVICES. IF YOU ACCESS OR USE THE Nimbulis Platform or SERVICES, YOU ACKNOWLEDGE that you AGREE TO BE BOUND BY THIS AGREEMENT.
This Agreement is entered into as of the earlier of the date You first submit a Sales Agreement relating to the Services or first access or use the Services or a Nimbulis Platform (the “Effective Date”).
1. Terms used in this Agreement will have the definitions given in this Agreement or, if not defined in this Agreement, will have their plain English meaning as commonly interpreted in the United States.
2. Modifications to the Nimbulis Platform and Services. MSI reserves the right, at any time, to modify the Nimbulis Platform, Services, or this Agreement, by making such modification available on the Nimbulis Platform or by providing other notice to You. Any modification will be effective immediately upon posting on the Nimbulis Platform or such other notice. As applicable, You will be deemed to have agreed to such modification through Your continued use of the Nimbulis Platform or Services.
3. Sales Agreements and Confirmation. All Sales Agreements placed by You for any Services will be governed by the terms of this Agreement. MSI will confirm Your Sales Agreement either through the Nimbulis Platform at the time you submit Your Sales Agreement or by providing You with access to the Services specified in Your Sales Agreement (each, a “Confirmation”). If the terms of any Sales Agreement conflict with the terms of any Confirmation of that Sales Agreement, the terms of the Sales Agreement will govern and control with respect to the Services provided to You. This Agreement will govern and control the terms of each Sales Agreement and Confirmation under this Agreement. By accessing or using any of the Services, You agree to be bound by the terms of this Agreement and each applicable Sales Agreement and Confirmation with respect to those Services.
4. This Agreement will be effective upon the Effective Date. The term of this Agreement will continue for the initial period stated in the applicable Sales Agreement for the Services and will thereafter automatically renew for successive additional periods of equal duration. If no initial period is stated in the applicable Sales Agreement for the Services, this Agreement will continue for an initial period of 1 year and will thereafter automatically renew for successive additional 1-year periods. Unless terminated as set forth herein, the term of this Agreement will continue to renew until You notify MSI that You do not wish to renew the Agreement at least 30 days prior to the end of the then-current period. In all other cases, the term of this Agreement will continue until terminated as set forth herein.
5. Subscription. Subject to this Agreement, during the term of this Agreement MSI will provide You with a limited subscription to access and use the Services under this Agreement, solely for Your own use in connection with your own business purposes. Your rights to access and use the Services are personal, non-exclusive, non-transferable and non-sublicensable. You understand that MSI may from time to time, in its sole discretion, update, change, revise, suspend or discontinue the Services (or any portion thereof) with or without notice.
6. Access to the Services.
o Upon Confirmation of Your Sales Agreement by MSI, the rights granted to You under this Agreement entitle You to access the Services through an account (Your “Account”). If You are an organization, you may allow designated employees or subcontractors within Your organization to access the Services through Your Account (each such individual, as applicable, a “User” of the Account). If You are an individual, then you may access the Services through Your Account as the sole User of that Account. You (and if you are an organization, each User) will be provided with a user identification and will select a password (each such user identification and password, a “User ID”). Each User ID is personal in nature and may be used only by You or, if You are an organization, by the applicable User.
o Responsibility for User Actions. You are solely responsible for all use of the Services through Your Account, for the actions of each User of Your Account, and for compliance by each User with the applicable terms of this Agreement. You will ensure the security and confidentiality of each User ID and will notify MSI immediately if any User ID is lost, stolen or otherwise compromised. You acknowledge that You are fully responsible for all costs, fees, liabilities or damages incurred, and material transferred, stored, modified or shared through use of each User ID (whether lawful or unlawful). You acknowledge that any Services ordered or transactions completed through Your Account under any User ID will be deemed to have been lawfully completed by You. In no event will MSI be liable for the foregoing obligations or the failure by You to fulfill such obligations. You will be solely responsible, at Your own expense, for acquiring, installing and maintaining all hardware, software and other equipment as
may be necessary for You and each User to connect to, access, and use the Services and the Nimbulis Platform.
o Account Authority. If You are an organization, then the individual who establishes Your Account (the “Account Authority”) will have control over Your Account. If You are an individual, then You will be the Account Authority for Your Account, unless you designate a different Account Authority as specified below. The Account Authority may: (a) add or remove new Users to or from the Account; (b) grant or revoke permissions for Users under the Account; (c) direct MSI in the case of any dispute among Your Users; (d) receive notices and other communications from MSI; and (e) take such other actions as MSI may provide to Account Authorities through the Services. There must be one and only one Account Authority for each Account at all times. The Account Authority may be changed (i) by an email sent to MSI from the registered email address of the current Account Authority; (ii) by bona fide legal written notice provided to MSI by one of Your corporate officers; or (iii) as separately set forth in an Sales
Agreement or Confirmation. It is Your responsibility to properly designate a new Account Authority whenever appropriate. In the event of a dispute where multiple persons claim to be the rightful Account Authority, MSI reserves the right, at its election and in its sole discretion, to (1) suspend all access to Your Account until the Account Authority is properly designated to MSI’s sole satisfaction, or (2) terminate Your Account and delete Your Content (as defined below).
7. Any software or code available on or download through the Nimbulis Platform or Services (“Software”) is protected by IPR (as defined below) of MSI and its suppliers. Unless otherwise expressly stated in a written license or other agreement separate from this Agreement that You may have entered into (or may enter into) with MSI relating to any Software (each such license or other agreement, a “Software License Agreement”), MSI grants you a limited, non-exclusive right and license to download, install and execute the Software in accordance with the instructions provided on the Nimbulis Platform and solely for your own business purposes in connection with Your access to and use of the Services. Except as expressly set forth in the foregoing sentence (or any applicable Software License Agreement), You are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Software or any IPR therein or related thereto, and You may not modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit any portion of the Software without the prior written permission of MSI. Except as set forth in this Agreement, any Software License Agreement will control in the event of a conflict between the terms of this Agreement and that Software License Agreement.
8. Third-Party Services. The Services may include services or functionality developed, provided, or maintained by third-party service providers (“Third Party Services”). In addition to the terms of this Agreement, Your access to and use of any Third Party Services is also subject to any other agreement separate from this Agreement that You may enter into (or may have entered into) relating to those Third Party Services (each, a “Third Party Service Agreement”). The terms of any Third Party Service Agreement will apply to the applicable Third Party Services provided under that Third Party Service Agreement in addition to the terms of this Agreement. Except as set forth in this Agreement, the terms of any Third Party Service Agreement will control in the event of a conflict between the terms of this Agreement and that Third Party Service Agreement. All other Third Party Services will be subject to the terms of this Agreement. Third Party Services may be subject to additional Fees as set forth on the Nimbulis Platform. Notwithstanding the terms of any Third Party Services Agreement, MSI may change, modify, replace or discontinue any Third Party Service at any time and without notice to You. Except as expressly set forth in this Agreement or any Third Party Service Agreement, You are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Third Party Services.
9. You acknowledge that the Services, Nimbulis Platform, and the databases, software, hardware and other technology used by or on behalf of MSI to provide the Services and operate the Nimbulis Platform (the “Technology”) and their structure, organization, and underlying data, information and source code are the sole and exclusive property of MSI. You will not, and will not permit any third party to: (1) access or use the Technology, in whole or in part, except as expressly provided in this Agreement; (2) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (3) use automated scripts to collect information from or otherwise interact with the Technology; (4) use the Technology to intimidate or harass any other people or entities, alter, modify, reproduce, create derivative works of the Technology; (5) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Your rights to access or use the Technology, including, without limitation, providing outsourcing, service bureau, hosting, application service provider or on-line services to third parties, or otherwise make the Technology, or access thereto, available to any third party; (6) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Technology; (7) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; or (8) interfere in any manner with the operation or hosting of the Technology, or attempt to gain unauthorized access to the Technology. You will not allow any access to or use of the Technology by anyone other than Your authorized Users, and any such use will be consistent with the terms, conditions and restrictions set forth in this Agreement. You further acknowledge that any Nimbulis database and source code constitute the valuable trade secrets of MSI, and shall be considered MSI’s Confidential Information as that term is used in this Agreement.
10. Fees and Payment. You agree to pay MSI all fees set forth in each Sales Agreement. You also agree to pay MSI all other fees incurred through Your Account in connection with additional services or products obtained through the Nimbulis Platform or Services (whether by You or by any User or other individual accessing or using Your Account) Nimbulis Platform (all such fees, collectively, the “Fees”). You acknowledge that the subscription fees for the Services specified in any Sales Agreement or Confirmation are subject to limitations on Your use of the Services, and that You may incur additional Fees for Your use of the Services in excess of these limitations. All Fees will be billed as indicated in each Sales Agreement or Confirmation or as specified on the Nimbulis Platform or through the Services. If the applicable Sales Agreement or Confirmation does not specify any applicable billing terms, the initial payment of Fees specified under that Sales Agreement or Confirmation for each period in Your subscription will be due and payable by You in advance on or before the Effective Date and again on or before the completion of each subsequent period under this Agreement. If You have specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, You grant MSI the right to charge the credit card or debit the bank account provided to MSI for all Fees incurred under this Agreement. All Fees will be non-refundable once paid to MSI (including upon any termination or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law. MSI may change any portion of the Fees by posting the changes to the Nimbulis Platform or otherwise notifying You through the Services of the change, such changes to take effect at the beginning of the next period of this Agreement. If MSI requires use of collection agencies, attorneys, or courts of law for collection on Your account, You will be responsible for those expenses. You will be responsible for all use, sales, and other taxes imposed on the Services provided under this Agreement.
11. This Agreement may be terminated by MSI, immediately upon any breach by You (or any User) of this Agreement that remains uncured 10 days after MSI first learns of such breach. You may terminate this Agreement at any time upon 30 days prior notice to MSI. Upon termination or expiration of this Agreement for any reason: (1) all rights and subscriptions granted to You under this Agreement will terminate; (2) You (and all Your Users) will immediately cease all use of and access to the Nimbulis Platform and Services; (3) all Fees then owed by You will become immediately due and payable; (4) You will immediately either return to MSI or, at MSI’s discretion, destroy the Service Content (as defined below) and MSI Confidential Information (as defined below), and other information related to this Agreement in Your possession or control; and (5) MSI may delete any of Your Content held by MSI at any time. Sections 10 (Restrictions), 11 (Fees and Payment), 12 (Termination), 14 (Ownership), 16.3 (Warranties and Disclaimer: Disclaimer), 17 (Indemnity), 18 (Limitation on Liability), 19 (Data Privacy), 20 (Confidentiality), 22 (Governing Law and Venue), and 23 (General) will survive any expiration or termination of this Agreement.
12. Without limiting MSI’s right to terminate this Agreement, MSI may also immediately and indefinitely suspend Your access to the Nimbulis Platform or Services, including, without limitation, all of Your Content, with or without notice to You, upon any actual, threatened, or suspected breach of this Agreement or applicable law or upon any other conduct deemed by MSI to be inappropriate or detrimental to the Nimbulis Platform, Services, MSI, or any other MSI customer or user. MSI may at any time following any suspension, suspend access to or delete any of Your Content held by MSI or the Nimbulis Platform or Services.
13. Ownership. MSI retains all right, title and interest, including, without limitation, all IPR, in and to the Nimbulis Platform, Services, Technology, Service Content, any Software, and any additions, improvements, updates, and modifications thereto. You acknowledge that You are not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to You to use them apart from Your right to access the Services under this Agreement. The MSI and Nimbulis name, logo and the product and service names associated with the Services are trademarks of MSI (or its third party providers), and no right or license is granted to You to use them. For purposes of this Agreement, “IPR” means any and all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
o Service Content. The Services may provide You with access to certain data, information, and other content through the Nimbulis Platform and Services (“Service Content”). While the Service Content will include or be based on data, information, or content from third party providers (“Third Party Content”), unless otherwise noted on the Nimbulis Platform, as between You and MSI, all Service Content is owned by MSI and its third party providers. Subject to this Agreement, You (and Your Users) may access and use the Service Content as indicated and permitted through the Services solely for Your own internal business purposes in connection with Your use of the Services. Except as expressly provided in this Agreement, You will not, and will not permit any User to: (a) alter, modify, reproduce, or create derivative works of the Service Content; (b) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer the Service Content, including, without limitation, providing outsourcing, service bureau, commercial hosting, application service provider or on-line services to third parties; or (c) alter, obscure, or remove any copyright, trademark, or any other notices that are provided on or in connection with the Service Content.
15. Warranties and Disclaimer.
o By MSI. MSI represents and warrants to You that MSI will use commercially reasonable efforts to maintain and verify that the Services operate in accordance with this Agreement. MSI’s sole obligation and Your sole and exclusive remedy in the event of any failure by MSI to comply with the foregoing sentence will be for MSI to, at MSI’s option, re-perform the affected Services or refund to You the fees (if any) You have actually paid for the affected Services during the month in which the failure occurred. Notwithstanding the foregoing, You remain solely and entirely responsible for Your compliance with, and will defend, indemnify and hold harmless MSI from and against any claims arising from any actual or alleged violation by You of any international, federal, state or local treaties, laws, rules, regulations or ordinances regarding Your use of or access to the Nimbulis Platform or Services or regarding your business, products or services, including, without limitation, regarding data and data privacy and the transmission of electronic mail messages, whether solicited or unsolicited.
o By You. You hereby represent, warrant, and covenant for the benefit of MSI that: (a) You have the legal right and authority to enter into this Agreement, and, if You are accepting this Agreement on behalf of a company or other entity, to bind the company or other entity to the terms of this Agreement; (b) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement You enter into in connection with any of the Services; (c) Your Content, and any other data, information or content You provide to MSI in connection with this Agreement and Your access to the Nimbulis Platform and use of the Services, is correct and current; and (d) Your use of and access to the Services and Nimbulis Platform will comply at all times with all applicable laws, rules, and regulations of any jurisdiction and will not cause MSI to violate any applicable laws, rules, and regulations of any jurisdiction.
o EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 16, THE NIMBULIS PLATFORM and SERVICES (AND all SERVICE CONTENT provided through the Nimbulis Platform and services) ARE PROVIDED TO YOU STRICTLY “AS IS” AND “AS AVAILABLE” and MSI AND ITS providers EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO ANY SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, title or non-infringement. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MSI, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES expressly SET FORTH IN THIS SECTION 16.
16. You hereby indemnify, defend, and hold harmless MSI and its affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising from Your accessing or using the Nimbulis Platform, Services, Software, Your Content, Service Content, or any breach of any term or condition of this Agreement. MSI will provide You with notice of any such claim or allegation, and MSI will have the right to participate in the defense of any such claim at its expense.
17. Limitation on Liability. IN NO EVENT WILL MSI or its third party providers BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THE USE OF THE NIMBULIS PLATFORM, SERVICES (OR any SERVICE Content provided through the Nimbulis Platform or services WHETHER DIRECTLY OR ON BEHALF OF ANY USER OR OTHER THIRD PARTY), EVEN IF MSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. the TOTAL CUMULATIVE LIABILITY of MSI or its service providers IN CONNECTION WITH THIS AGREEMENT AND all SERVICES or products provided under this agreement, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO MSI HEREUNDER IN THE 1 MONTH PRECEDING ANY SUCH initial occurrence of LIABILITY (OR, IF NO SUCH FEES HAVE BEEN PAID, $100). You agree THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND acknowledge THAT MSI WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, MSI’s LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
20. Linked Sites. The Nimbulis Platform and electronic information provided through the Services may contain links to third-party sites that are not under the control of MSI, and MSI is not responsible for any content on any linked site. If you access a third-party site from the Nimbulis Platform or from electronic information provided through the Services, then you do so at your own risk. MSI provides links only as a convenience, and the inclusion of the link does not imply that MSI endorses or accepts any responsibility for the content on those third-party sites. You may establish a link to the Site, provided that the link does not state or imply any sponsorship or endorsement of Your site by MSI or any group or individual affiliated with MSI. You may not use on your site any content trademarks or service marks appearing on the Nimbulis Platform in establishing the link. You may not frame or otherwise incorporate into another site the content or other materials on the Nimbulis Platform without MSI’s prior written consent.
21. Governing Law and Venue. This Agreement will be governed by the laws of the State of Colorado as such laws apply to contracts between Colorado residents performed entirely within the State of Colorado. Any action or proceeding arising from or relating to this Agreement will be brought in a state or federal court located in the State of Colorado, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The parties expressly waive any right to a jury trial in any lawsuit brought in connection with this agreement.
22. General. Unless otherwise amended as provided herein, this Agreement will exclusively govern Your access to and use of the Services and the Nimbulis Platform and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding Your access to and use of the Services and the Nimbulis Platform. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. Neither this Agreement nor any of Your rights or obligations hereunder may be assigned or transferred by You without the prior written approval of MSI. Any assignment in violation of the foregoing will be null and void. MSI may assign this Agreement to any party that assumes MSI’s obligations hereunder, including by sale, merger, consolidation, or operation of law or otherwise. The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. This Agreement is the complete and exclusive statement of the agreement between the parties with respect to the subject matter of this Agreement, and this Agreement supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. MSI may reference You as a user of the Services and use Your name and logo, as applicable, in listings of users of the Services appearing on the MSI web site and for other marketing and promotional purposes relating to the Services.