WELCOME TO NIMBLE ACCOUNTING.
NIMBLE ACCOUNTING, LLC. PROVIDES THE SERVICES TO YOU SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS. BY USING AND ACCESSING NIMBLE ACCOUNTING SERVICES YOU ACCEPT THESE TERMS GOVERNING THE USE OF OUR SERVICES (THE “AGREEMENT”). PLEASE READ THEM CAREFULLY.
This Agreement takes effect, when you use our Services (the “Effective Date”). You represent that you are lawfully able to enter into contracts (you are not a minor). If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the term ‘you’ or ‘your’ shall refer to such entity. You may not access the Services if you are our direct competitor or a direct or indirect representatives of our competitor. For the purpose of this Agreement the term ‘competitor’ is defined as any person or entity in the same business areas of focus or interest to us except certain entities or specific persons who have the express written authorization from us. You may not access the Services for the purpose of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purpose.
“Data” means the data entered by you, or Users for the purpose of using the Purchased Services or facilitating your use of the Purchased Services.
“Purchased Services” means the Services that you purchase through our website, as distinguished from those provided pursuant to a free trial.
“Services” means the subscription Software services provided by us through Amazon Web services or other designated hosting services notified to you from time to time, including the corresponding technical support services and any additional configuration, integration and customization services that are purchased by you.
“Software” means the computer software programs in object code format that designed, developed, owned by us that will be made available to you under this Agreement as part of the Services, including any updates or upgrades of such software programs which are generally offered from time to time by us to customers who are subscribed to the Services.
“Users” means individuals who are authorized by you to use the Services, for whom subscription to Services have been purchased, and who have been supplied user identifications and passwords. Users may include but are not limited to your employees, consultants, contractors and agents or third parties with whom you transact business.
“we”, “us”, or “our” means Nimble Accounting, LLC., a Delaware limited liability company.
“you” or ‘your” means the company or other legal entity for which you are accepting this Agreement.
2. Free Trial.
We will make one or more Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered or are registering to use the applicable Service or (b) the start date of any Purchased Services ordered by you. Any Data you enter into the Services, and any customizations made to the Services by or for you, during your free trial will be permanently lost unless you purchase a subscription to the same Services as those covered by the free trial, before the end of the free trial period. During the free trial the Services as provided on an ‘as is’ basis without any warranty or representations.
3. Purchased Services.
In consideration of the payment of subscription fees we will provide you a non-exclusive, non-transferable access and use of the Services. The use of the Services are subject to the terms of this Agreement. You will remain responsible for Users compliance with this Agreement. We will use reasonable efforts to make the Services available three hundred sixty-five (365) days a year, 24 hours a day, other than for routine or emergency maintenance and force majeure events including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or cloud web service provider failures or delays or any other reasons which are beyond our reasonable control. Wherever, practical, we will only conduct routine maintenance between hours of 8:00 pm Eastern Standard Time on Fridays and 10:00 pm Eastern Standard Time on Sundays, or any time after 8:00 pm Eastern Standard Time and before 7:00 am Eastern Standard Time during the week. We may make changes in the Services that we determines in our sole discretion to be necessary and appropriate. We will use reasonable commercial efforts to preserve all Software and Service functionality at the level previously provided to you. During the term of Purchased Services, we will provide technical support to you, including providing access to a member of our support services staff via online chat, email or telephone help line. You agree that your purchases hereunder are not contingent on the delivery of any future functionality or features of the Services. We may, without your prior consent, modify or delete any of the features of the Services provided that such modifications or deletions are based on reasonable commercial factors with the intent of improving the Services and that such modifications or deletions do not have a material adverse impact on the Services. We may, without your consent, substitute old features with new features that have similar or improved functionality or as necessary to meet any applicable legal, regulatory or industry-standard requirements or demands. We shall not modify the technology utilized in, features or functionality of our systems in a manner that would significantly adversely affect your use of or ability to use the Services, without your prior written consent. If you provide us with notice of any objection to modification or deletion with such thirty day notice period, the parties agree to discuss such objections and negotiate in good faith towards a prompt resolution.
4. Intellectual Property Rights.
You acknowledges and agrees that the Services is owned by, and shall remain the sole property of, us and that we are the sole owner of all intellectual property rights in and to the Service including, without limitation, its software, hardware infrastructure, documentation, user guides, release narratives, system and work-flow process descriptions, system rules, screen layouts, report layouts, database layouts, process flow, thesauruses, data mappings and implications or any other documentation that pertains to the creative work and the intellectual property of us and other components, any derivative works of the Service provided that any Data stored on the Services are, and shall remain, the property of you. This Agreement does not convey to you title or ownership of the Service, nor its software, hardware infrastructure or other components, but only a right of limited use of the Services in accordance with the terms of this Agreement. If we or any of our customers is faced with a credible claim that the Services infringe on the intellectual property rights of a third party, and we are not reasonably able to obtain the right to use the infringing element or modify the Services such that they do not infringe, then we may terminate the Services on reasonable notice of at least thirty days, and will not have any liability on account of such termination except to refund amounts paid for Services not used as of the time of termination.
5. Fees and Payment.
The fees for Purchased Services shall be at the prices stated in our website, or otherwise agreed by us from time to time. The fees are payable in United States dollars. The fees are based on Services purchased and not on actual usage. The fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term or otherwise as decided by us in our sole discretion. You will provide us with valid and updated credit card for charging the fees. You authorize us to charge such credit card for all Purchased Services during the subscription term. Such charges shall be made in advance in accordance with monthly subscription periods. You are responsible for maintaining complete and accurate billing and contact information in the Services. The payment obligations are non-cancelable and fees paid are non-refundable. If we have not received the payment within 10 days after the due date, and without prejudice to any other rights and remedies we may, without liability to you, disable your account and access to all or part of the Services and we shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid. If any fees are not received from you by the due date, then at our discretion, such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. The fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction. You responsible for paying all taxes associated with Services hereunder. If we have the legal obligation to pay or collect taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. Fees for any new Services or a new feature of the Services will be effective when we post updated fees and charges on the website unless we state otherwise in a notice. We may increase or add new fees and charges for Purchased Services by giving you at least 30 days’ advance notice. In case of termination of Purchased Service due to non-payment we reserve the right to impose a reinstating fee if you requests to resume the Purchased Services.
6. Use of the Services.
You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Data and of the means by which you acquired the Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks. In addition, the Services shall not be used by you for any unlawful purpose. We have the right, but not the obligation, to monitor your use of the Services to determine compliance with the terms of this Agreement. We reserves the right, without limiting any other right or remedy available at law, in equity, or under this Agreement, to immediately suspend your access (and therefore, all Users access) to and use of the Services and/or immediately terminate this Agreement if we determines, in its sole discretion, that you are engaging (or have engaged) in any of the prohibited activities set forth in this paragraph.
7. Third-Party Providers.
You agree that in order to provide Services, we may be required to purchase and provide you with access to certain software applications and services provided by third parties (e.g Amazon Web Services, Authorize.net etc.). You further acknowledge that we are required to flow-down to you the terms and conditions that we have agreed with such third-party providers to ensure that you with comply certain obligations that we agreed to with such third-party providers. All such applicable terms are available to you upon your written request to us and are incorporated herein by reference with their full force and effect. While we may control key components, on which the Services rely on, there are components and services outside the scope of our control, which are utilized by you in order to receive the Services. Such outside components and services include, but are not limited to your internal infrastructure, email services, the internet service provider, the user workstation and more. Thereby, you acknowledges that the delivery of Services depends on the reliability of these services. You hereby agree to take responsibility and make every effort to help resolve any obstacles to normal operation beyond the control of us.
You shall own all rights, title and interest in and to all of the Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Data. In the event of any loss or damage to Data, your sole and exclusive remedy shall be for us to use reasonable commercial endeavor’s to restore the lost or damaged Data from the latest back-up of such Data maintained by us in accordance with the archiving procedure maintained by us. We shall not be responsible for any loss, destruction, alteration or disclosure of the Data caused by any third party. We recommends that you should take a periodic data back up and retain in for your own data archival and retrieval purposes.
You may terminate the subscription Services for any reason by: (i) providing us written notice and (ii) closing your account via ‘Account’ page or otherwise as instructed by us. We does not provide refunds or credits for any partial months of the Services. If you cancel the Services you will not be entitled to a refund of any charged and paid fees. We will have the right to terminate this Agreement or cancel the Services if you materially breach this Agreement and such breach has not been cured within ten (10) days’ of notice of such breach. In the event of termination of this Agreement or cancellation of Services for any reason: (i) all access granted to you shall immediately terminate; and (ii) we may destroy or otherwise dispose of any of the Data in stored in the Services unless we receives, no later than ten (10) calendar days after the effective date of the termination of this Agreement or cancellation of Services, a written request for the delivery to you of the then most recent back-up of the Data. We will use reasonable commercial endeavor’s to deliver the back-up to you within 30 days of the receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination).
10. Confidential Information.
Each of us agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under this Agreement, or as may be required by law. Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows: (i) to each of our respective service providers, agents and representatives, provided that such service providers, agents or representatives agree to confidentiality measures that are at least as stringent as those stated herein; (ii) to a law enforcement or government agency if requested; (iii) as required by law; or (iv) in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven days prior to disclosing Confidential Information under this subparagraph (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law or a reasonable interpretation of it, forbids such notice.
We warrant that we will perform in a competent manner. You represent and warrant to us that you own the entire right, title and interest to, or have an appropriate license to use, all materials provided to us, or which may be accessed or transmitted using the Services.
THE SERVICES ARE PROVIDED “AS IS.” WE AND OUR LICENSORS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES OR THE THIRD PARTY COMPONENT, INCLUDING ANY WARRANTY THAT THE SERVICES OR THIRD PARTY COMPONENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR DATA, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
12. Limitation of Liability.
WE WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, WE WILL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICES, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (c) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR DATA. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.
If we, or any of our respective employees, agents, or suppliers is/are faced with a legal claim by a third party arising out of your use of the Services, including, without limitation, claims related to actual or alleged negligence, willful misconduct, violation of law, or violation of this Agreement, then you will indemnify and defend the claim and any damage award, fine or other amount that is imposed on us as a result of the claim. Your obligations under this paragraph include claims arising out of the negligent acts or omissions of your employees or agents, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. You must also pay reasonable actual attorneys’ fees and other expenses you incur in connection with any dispute between persons having a conflicting claim to control your account with us.
14. Governing Law, Jurisdiction.
This Agreement is governed by the laws of the State of Delaware (exclusive of its choice of law principles) and the laws of the United States of America, as applicable. This Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. The exclusive venue for all disputes arising out of this Agreement shall be in the federal courts in state of Delaware, or, if the federal courts do not have jurisdiction, in the appropriate Delaware state courts. We each agree not to bring an action in any other venue, and further agree to waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. Each of us agrees that we will not bring a claim under this Agreement more than one year after the time that the claim accrued.
15. General Contractual Terms.
15.1 Force Majeure. We will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
15.2 Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other, except as otherwise mentioned in this Agreement.
15.3 No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
15.4 Import and Export Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the Service Offerings, including your transfer and processing of Data.
15.5 Notice. We may provide any notice to you under this Agreement by: (i) posting a notice on our website; or (ii) sending a message to the email address then associated with your account.
15.6 Assignment. You will not assign this Agreement, or delegate or sublicense any of your rights under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Section 15.6 will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
15.7 No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of any such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
15.8 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
15.9 Entire Agreement. This Agreement is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement.
15.10 Modifications to the Agreement. We may modify this Agreement at any time by posting a revised version on our web site. The modified terms will become effective upon posting. By continuing to use the Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check our website regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the beginning of this Agreement.