Terms & Conditions

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V1.0 Effective July 15, 2019

These Software Use & Contribution License Terms (“Terms”) are a binding agreement between you and Nimbella, Corp. (“Nimbella”).

  1. General Terms

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    1. Your use of the Nimbella Services is governed by this Agreement ((the "Terms"). “Nimbella” means Nimbella Corporation, located at 4677 Old Ironsides Dr., Suite 180, Santa Clara, CA 95054 and its subsidiaries or affiliates involved in providing the Nimbella Services. The “Nimbella Services” means the services Nimbella makes available through this website, the Nimbella platform, and any other software or services offered by Nimbella in connection to any of those.
    2. In order to use the Nimbella Services, you must first agree to the Terms. You can agree to the Terms by actually using the Nimbella Services. You understand and agree that Nimbella will treat your use of the Nimbella Services as acceptance of the Terms.
    3. You may not use the Nimbella Services if you are a person barred from receiving the Nimbella Services under the laws of the United States or other countries, including the country in which you are resident or from which you use the Nimbella Services.
    4. You agree that purchase of Nimbella Services is not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Nimbella regarding future functionality or features.
  2. Use of The Nimbella Services

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    1. You must provide accurate information when you register to use the Nimbella Services. You are responsible for the security of passwords and for any use of your account.
    2. Your use of the Nimbella Services must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.
    3. You agree not to (a) access (or attempt to access) the administrative interface of the Nimbella Services by any means other than through the interface that is provided by Nimbella in connection with the Nimbella Services, unless you have been specifically allowed to do so in a separate agreement with Nimbella, or (b) engage in any activity that interferes with or disrupts the Nimbella Services (or the servers and networks which are connected to the Service).
    4. Your account has “hard” and “soft” usage limits, as further explained here (or such URL as Nimbella may provide). The Nimbella Services does not permit you to exceed the hard usage limits. Nimbella reserves the right to enforce soft usage limits in its sole discretion, which may result in Nimbella serving a “quota exceeded” page to you or users to whom you serve web pages via the Nimbella Services (“End Users”). Repeated exceeding of the hard or soft usage limits may lead to termination of your account.
  3. Services Policies and Privacy

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    1. You agree to comply with the Nimbella Acceptable Use Policy available at https://www.nimbella.com/acceptable-use (the “Acceptable Use Policy”) which is incorporated herein by this reference and which may be updated from time to time.
    2. Nimbella Services shall be subject to the privacy policy available at https://www.nimbella.com/privacy. You agree to the use of your data in accordance with such privacy policy.
    3. Nimbella shall use commercially reasonable efforts to make the Nimbella Services available 24 hours a day, 7 days a week, except for planned downtime (of which you are given notice), or any unavailability caused by circumstances beyond Nimbella’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Nimbella employees), Internet service provider failures or delays, or denial of service attacks.
  4. Fees for Use of the Nimbella Services

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    1. Subject to the Terms, the Nimbella Services is provided to you without charge up to certain limits. Usage over this limit may result in rate limiting, reduced performance or termination of your account.
  5. Content and Cloud Applications

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    1. You understand that all information (such as data files, written text, computer software) to which you may have access to as part of, or through your use of, the Nimbella Services are the sole responsibility of the person from which such content originated. All such information is referred to below as the “Content.” The term Content shall specifically exclude applications that you create using the Nimbella Services and any source code written by you to be used with the Nimbella Services (collectively, “Cloud Applications”).
    2. You are solely responsible for (and Nimbella has no responsibility to you or to any third party for) the Cloud Applications or any Content that you create, transmit or display while using the Nimbella Services and for the consequences of your actions (including any loss or damage which Nimbella may suffer) by doing so.
    3. You agree that Nimbella has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the Nimbella Services. You further acknowledge that you are solely responsible for securing and backing up your own Cloud Applications and any Content.
  6. Proprietary Rights

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    1. You acknowledge and agree that Nimbella owns all legal right, title and interest in and to the Nimbella Services, including any intellectual property rights which subsist in the Nimbella Services.
    2. Except as provided in Section 8, Nimbella acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content or Cloud Applications that you create, submit, post, transmit or display on, or through, the Nimbella Services, including any intellectual property rights which subsist in that Content and the Cloud Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Nimbella, you are responsible for protecting and enforcing those rights and that Nimbella has no obligation to do so on your behalf.
  7. License from Nimbella and Restrictions

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    1. Nimbella hereby grants you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to access and use the Nimbella Services and to use the software provided to you by Nimbella. This license is for the sole purpose of enabling you to use the Nimbella Services as provided by Nimbella, in the manner permitted by the Terms.
    2. You may not (and may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Nimbella Services or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically granted permission to do so by Nimbella, in writing (e.g., through an open source software license); or (b) attempt to disable or circumvent any security mechanisms used by the Nimbella Services.
    3. Open source software licenses for components of the Nimbella Services released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms, the open source licenses govern your agreement with Nimbella for the use of the components of the Nimbella Services released under an open source license.
    4. Nimbella hereby grants you a limited, non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to display the Nimbella trademarks and/or logos (“Marks”) for the sole purpose of promoting or advertising that you use the Nimbella Services and solely in accordance with Nimbella’s then current Trademark Usage Guidelines, which may be found at https://www.nimbella.com/trademark. You agree that all goodwill generated through your use of the Nimbella Marks shall inure to the benefit of Nimbella.
  8. License from You

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    1. Nimbella claims no ownership or control over any Content or Cloud Application. You retain copyright and any other rights you already holds in the Content and/or Cloud Application, and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through the Nimbella Services, you give Nimbella a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling Nimbella to provide you with the Nimbella Services. Furthermore, by creating a Cloud Application through use of the Nimbella Services, you give Nimbella a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Cloud Application for the sole purpose of enabling Nimbella to provide you with the Nimbella Services.
    2. By adding a collaborator to Cloud Application(s), you hereby grant to that user a non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to use, display, perform, reproduce, modify, publish, distribute, list information regarding, edit, translate and analyze such Cloud Application(s) and Content as permitted by the relevant Nimbella Services functionality or features for the sole purpose of collaborating on development of the Cloud Application(s).
    3. You may choose to or we may invite you to submit comments or ideas about the Nimbella Services, including without limitation about how to improve the Nimbella Services or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Nimbella under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.
    4. You agree that Nimbella, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the Nimbella Services.
  9. Recommendations

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    1. Nimbella may, and you grant us permission to, make recommendations via the Nimbella Services for products or services we think may be of interest to you based on your Application(s), Content, and/or use of the Nimbella Services. We will never make recommendations directly to your End Users.
  10. Modification and Termination of the Nimbella Services

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    1. Nimbella is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Nimbella Services which Nimbella provides may change from time to time without prior notice to you, subject to the terms in Section 4. Changes to the form and nature of the Nimbella Services will be effective with respect to all versions of the Nimbella Services; examples of changes to the form and nature of the Nimbella Services include without limitation changes to fee and payment policies, security patches, added functionality, and other enhancements.
    2. You may terminate these Terms at any time by canceling your account on the Nimbella Services. You will not receive any refunds if you cancel your account.
    3. You agree that Nimbella, in its sole discretion and for any or no reason, may terminate your account or any part thereof. You agree that any termination of your access to the Nimbella Services may be without prior notice, and you agree that Nimbella will not be liable to you or any third party for such termination.
    4. You are solely responsible for exporting your Content and Application(s) from the Nimbella Services prior to termination of your account for any reason, provided that if we terminate your account, we will provide you a reasonable opportunity to retrieve your Content and Application(s).
    5. Upon any termination of the Nimbella Services or your account these Terms will also terminate, but Sections 6.1, 10, 11, 12, 13, and 17 shall continue to be effective after these Terms are terminated
  11. EXCLUSION OF WARRANTIES

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    1. NOTHING IN THESE TERMS, INCLUDING SECTIONS 10 AND 11, SHALL EXCLUDE OR LIMIT NIMBELLA’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
    2. YOU EXPRESSLY UNDERSTAND AND AGREE THAT USE OF THE NIMBELLA SERVICE IS AT YOUR SOLE RISK AND THAT THE NIMBELLA SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”
    3. NIMBELLA, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE NIMBELLA SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NIMBELLA, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE NIMBELLA SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE NIMBELLA SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND © USAGE DATA PROVIDED THROUGH THE NIMBELLA SERVICES WILL BE ACCURATE.
  12. LIMITATION OF LIABILITY

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    1. SUBJECT TO SECTION 10.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT NIMBELLA, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER OR NOT FORESEEABLE. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.
    2. THE LIMITATIONS ON NIMBELLA’S LIABILITY TO YOU IN PARAGRAPH 11.1 ABOVE SHALL APPLY WHETHER OR NOT NIMBELLA HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
  13. Indemnification

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    1. Nimbella agrees to indemnify you against any losses or damages finally awarded against you incurred in connection with a third party claim alleging that your use of the Nimbella Services infringes or misappropriates any U.S. patent, copyright, or trade secret of such third party, provided that you (a) provide prompt written notice of such claim to Nimbella, (b) grant Nimbella the sole right to defend such claim, and © provide to Nimbella all reasonable assistance. In the event of a claim or threatened claim under this Section by a third party, Nimbella may, at its sole option, (i) revise the Services so that they are no longer infringing, (ii) obtain the right for you to continue using the Services, or (iii) terminate the Agreement upon 10 days’ notice.
    2. You agree to hold harmless and indemnify Nimbella, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners (collectively “Nimbella and Partners”) from and against any third party claim arising from or in any way related to (a) your breach of the Terms, (b) your use of the Nimbella Services, © your violation of applicable laws, rules or regulations in connection with the Nimbella Services, or (d) your Content or your Cloud Application, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, Nimbella will provide you with written notice of such claim, suit or action.
  14. Other Content or Resources

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    1. The Nimbella Services may include hyperlinks to other web sites or content or resources or email content. Nimbella may have no control over any web sites or resources which are provided by companies or persons other than Nimbella.
    2. You acknowledge and agree that Nimbella is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
    3. You acknowledge and agree that Nimbella is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
  15. Changes to the Terms

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    1. Nimbella may make changes to the Terms from time to time. If we change the Terms in any substantive way, we will give you at least seven (7) days’ notice before the changes take effect, during which period of time you may reject the changes by terminating your account.
    2. You understand and agree that if you use the Nimbella Services after the date on which the Terms have changed, Nimbella will treat your use as acceptance of the updated Terms.
  16. General Legal Terms

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    1. The Terms, including all Order Forms, constitute the whole legal agreement between you and Nimbella and govern your use of the Nimbella Services (but excluding any services which Nimbella may provide to you under a separate written agreement), and completely replace any prior agreements between you and Nimbella in relation to the Nimbella Services.
    2. There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.
    3. If Nimbella provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.
    4. You agree that Nimbella may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Nimbella Services. By providing Nimbella your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail.
    5. You agree that if Nimbella does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Nimbella has the benefit of under any applicable law), this will not be taken to be a formal waiver of Nimbella’s rights and that those rights or remedies will still be available to Nimbella.
    6. The Terms, and your relationship with Nimbella under the Terms, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You and Nimbella agree to submit to the exclusive jurisdiction of the courts located within the Santa Clara County, California to resolve any legal matter arising from the Terms.
    7. Neither party may assign any of its rights or obligations under these Terms, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the entirety of its rights and obligations under these Terms, without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of your use of the Nimbella Services upon written notice to the assigning party.