By using Ximble’s employee scheduling services and any related products or services (collectively, the “Service”), you agree to be bound by the terms and conditions of this Terms Of Service Agreement (“Agreement”), and you agree that it is enforceable as if it were a written negotiated agreement signed by Nimble Software Systems, Inc., a Delaware corporation (“Ximble”) and You. If You have previously agreed to an earlier version of Our terms and conditions, Your continued use of the Service constitutes Your agreement to this Agreement.
Please read carefully before using or continuing to use the Service.
If you are signing up for the Service on behalf of a company or other legal entity, you represent that you are duly authorized to represent such company or legal entity and enter into this Agreement on behalf of such company or legal entity. By your acceptance, a binding contract is thereby formed between Ximble and such company or legal entity in accordance with the terms and conditions of this Agreement.
If you are entering into this Agreement on behalf of a company or other legal entity, the terms “You” and “Your” in this Agreement means such company or other legal entity. If you are entering this Agreement on your own behalf, you agree that you are personally bound by this Agreement and in such case, the terms “You” and “Your” in this Agreement mean you. “We” and “Our” means Ximble.
For purposes of this Agreement, each individual user of the Service pursuant to Your subscription shall be defined as a “User.”
If the company you represent, or you, does not agree to this Agreement, do not use the Service.
- Term of Agreement and Renewal
- The terms of this Agreement commence on the date You accept it by Your use (or continued use) of the Service and continues until all subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Service for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period. At times, to comply with legal requirements and for other reasons, this Agreement may be revised or modified. Continued use of the Service after any such changes shall constitute Your consent to such changes. Unless explicitly stated otherwise, any new feature that enhances or augments the current Service shall be subject to this Agreement. You can review the most current version of this Agreement at any time at: http://www.ximble.com/terms/
- Your subscription shall commence upon payment (or, in the case of a free trial, upon signing up for such free trial) and shall continue for the selected subscription term. Except as otherwise specified, Your subscription shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal before the end of the relevant subscription term (30 days before the end of the relevant subscription term if an annual agreement). Annual subscribers will be held responsible for monthly subscriptions at current standard monthly rates and number of users until 30 days notice of cancellation or change to subscription is provided.
- Ximble may, in its sole discretion, revise or modify this Agreement at any time. Such changes, modifications, additions or deletions shall be effective immediately upon their posting on the Ximble website. Ximble may, but shall not be required to, provide You notice of such changes, modifications, additions or deletions.
- Termination and Expiration
- Notwithstanding anything else in this Agreement, the following sections shall survive any termination or expiration of this Agreement: Sections 3.b-3.d and Sections 5-12.
- Software Usage Rights
- For the term of the Agreement, Ximble grants to You a limited, non-transferable, non-exclusive right to access and use its proprietary, commercially available, hosted software products and related documentation ("Software") via a web browser for Your internal business use. The Software is made available to You as a hosted service. Ximble hosts and retains physical control over the Software and only makes it available for access, and use by You over the Internet through a web browser (e.g., Internet Explorer). Nothing in this Agreement obligates Ximble to deliver or make available any copies of computer programs or code from the Software to You, whether in object code or source code form. You agree that You and all of Your Users will use the Service in compliance with all applicable local, state, national, and international laws, rules and regulations.
- You are responsible for all activities that occur in connection with Your subscription (including, without limitation, activities of all Users associated with Your subscription). You shall: (i) provide Ximble with the names and contact paths ("User Data") for Users that will have access to the Service; (ii) provide Ximble with this User Data in a form and format specified by Ximble, if so required; (iii) have sole and exclusive responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all User Data; (iv) maintain a copy of all User Data that You provide to Ximble; (v) designate certain Users to access and use the Service; (iv) ensure that Users shall at all times use the Service and the Software in accordance and in compliance with this Agreement, as may be updated periodically by Ximble; (vi) prevent unauthorized access to, or use of, the Service and Software, and notify Ximble promptly of any such unauthorized use and, notwithstanding anything to the contrary in this Agreement, Ximble shall have no liability for any losses, damages, claims, suits or other actions arising out of or in connection with such unauthorized or improper use of the Service by You or any User; and (vii) comply with all applicable laws; (ix) not cause any disturbances, outages or take any other actions that may adversely affect the Service or Software; and (x) be responsible for payment of any service fees, text messaging fees, and any other third party fees or expenses, associated or incurred in connection with, the access or use of the Service by You and/or Your Users. You acknowledges that You are solely responsible for the content of any information that You make available through the Service and that Ximble will not, except as otherwise expressly herein set forth, monitor Your or Your Users' use of the Service to examine the content passing through it. Notwithstanding anything to the contrary in this Agreement, in no event shall Ximble be liable to You, a User or any other third party for any failure on the part of You to fulfill Your responsibilities pursuant to this Section 3.b and Ximble expressly disclaims any liability arising therefrom.
- You agree and acknowledge that each User will be identified by a unique username and password (a "Login") and that any Login may only be used by one individual. You will be responsible for all uses of Your Users' Logins, without limitation, any use by any unauthorized third parties. You must notify Ximble immediately if You believe any Login has been obtained, or may be accessed or used by, any unauthorized person or entity.
- You shall not, shall not agree to, shall not attempt to, and shall not authorize or encourage any User or third party to:
- use the Service to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, contains viruses, malware, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic email address information, time bombs or other harmful software, or is otherwise objectionable as determined by Ximble in its sole discretion.
- use the Service to engage, directly or indirectly, in transmission of spam, chain letters, junk mail, or any other type of unsolicited solicitation.
- use the Service for any fraudulent or inappropriate purpose.
- attempt to decipher, decompile, hack, phish, SQL inject, delete, augment, alter, disassemble, reverse engineer, or otherwise interfere with any of the software comprising or in any way used or downloaded from the Ximble website.
- resell, duplicate, decompile, make derivative works of, reproduce or exploit any part of, or otherwise attempt to extract the source code or source data from, the Service or the Software without the express written permission of Ximble.
- use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service or the Software.
- rent, lease, distribute, license, assign, time share or resell the Service or the Software, or use the Service or the Software for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Service or the Software.
- publish any material on any Ximble website that contains sexually related text, photographs or other content, or content that is defamatory, harassing, harmful, libelous, obscene, indecent, threatening, abusive, hateful or otherwise inappropriate, in each case, as determined by Ximble in Ximble's sole discretion.
- use the Service or the Software in any application or situation where failure of the Service or the Software could lead to death or bodily injury of any person, or to physical or environmental damage.
- attempt to disable, disrupt, interfere with, or circumvent any security mechanisms used by the Service or the Software, or otherwise attempt to gain unauthorized access to any portion or feature of the Service or the Software.
- forge headers or otherwise manipulate identifiers in order to disguise Your or any User's identity, or the origin of any message or other communication that You or any User sends to Ximble in connection with the Service, otherwise impersonate another person or entity, misrepresent Your or any User's affiliation with a person or entity, including (without limitation) Ximble, federal, state or municipal government, or a political candidate, or create or use a false identity.
- make the Service available to Users in excess of the number of Users permitted by Your subscription.
- collect, manually or through an automatic process, information about other users or other information relating to the Software or the Services.
- use any meta tags or any other hidden text utilizing Ximble's name, trademarks, or product names in any manner and in any place.
- advertise, offer to sell, or sell any goods or services.
- infringe any patent, trademark, trade secret, copyright, right of publicity or other right of any party, or violate any law or administrative rule.
- access or use the Service for purposes of monitoring the Service's availability, performance or functionality, or for any other benchmarking or competitive purposes.
- use the Service to store or transmit any "protected health information," as that term is defined in 45 C.F.R. 160.103.
- permit any User or other third party to do any of the foregoing.
- If You integrate with Ximble using our API, You must use efficient programming, which will not cause too many requests to be made in too short a period. We reserve the right to throttle Your API connections, or suspend or terminate Your Ximble account.
- A high speed Internet connection is required for proper transmission of the Service. You are responsible for procuring and maintaining the network connections that connect Your network to the Service, including, but not limited to, browsersoftware that supports protocols used by Ximble, including Secure Socket Layer (SSL) protocol or other protocols accepted by Ximble, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You or any Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Your data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Ximble. We assume no responsibility for the reliability or performance of any connections as described in this section.
- 30 Day Money Back Guarantee
If you are not happy, we are not happy. That is why we offer a free trial and the subsequent 30 Day Money Back Guarantee. If you are less than satisfied with the service we offer in the first 30 days for any reason, you can cancel and receive a full refund of your subscription fee. There will be no questions asked other than what we can do better next time.
- Onboarding Services Rights and Obligations
- Duration: 21 Days, unless otherwise agreed upon between You and the Ximble Sales representative. The service start time will be agreed upon, defined and reflected on the invoice.
- Cost: The fee for the Onboarding service will be negotiated between You and the Ximble Sales representative. It may vary from a situation to a situation, as Your needs may be different than that of another customer.
- Service Level: Unless otherwise negotiated with the Ximble Sales representative, You will receive:
- Up to three (3) live, online training sessions to the audience of your choice. Each training session will be one (1) hour in duration.
- There is no limit to the number of participants at each training session. Ximble representative reserves the right to "mute" all groups 10 people or larger to maintain the appropriate learning environment. The participants will be given an opportunity to ask questions and make comments via a "chat function" on the web conference platform utilized for the session. There will also be an open Q&A period at the end of each training session.
- You will be provided a full recording of each live training session with the rights to INTERNALLY redistribute and reuse it. NOTE: The redistribution rights are limited to your Company's internal usage only and any distribution to external audience is strictly prohibited. The content of such recordings remains the property of Nimble Software Systems, Inc. and are subject to all intellectually property rights.
- Employee roster uploading assistance is included with each paid Onboarding service. (A 2 working days turnaround time is to be expected)
- Employee scheduling uploading assistance is included with each paid Onboarding service. (A 3 working days turnaround time is to be expected). In order to receive this service, You must designate and made available an internal resource knowledgeable in Your internal operations to work with the Ximble Team to assure the schedule upload is correct and according to Your expectations. If this resource is not made available, no schedule will be uploaded.
- Payment Terms
- Monthly Terms: Your credit card will be charged each month and You will receive a receipt via email when Your card has been charged. If Your card cannot be charged, Your access to the Service may be suspended and You will need to update Your card information in order to resume use. You may cancel at any time by calling Ximble at 866-986-6462 or emailing email@example.com. There will be no refunds or credits for partial months of service, downgrades, or for months unused with an open account. You are responsible for providing a notice of cancellation. You will be held liable for payment of any unpaid period for which the system was available to you without such notification and for which payment has not been made.
- Annual Terms: Yearly subscription pricing requires a 1 year minimum commitment. Your annual subscription for the Service renews automatically each year until cancelled or terminated as set forth herein. Your credit card will be charged each year and You will receive a receipt via email when Your card has been charged. If Your card cannot be charged, Your access to the Service may be suspended and You will need to update Your card information in order to resume use. Alternatively, upon your request, an invoice will be sent to you and payment must be made in order to resume use. You may cancel at any time by calling Ximble at 866-986-6462 or emailing firstname.lastname@example.org. There will be no refunds or credits for partial years of service, downgrades, or for years unused with an open account. You are responsible for providing a notice of cancellation. You will be held liable for payment of any unpaid period for which the system was available to You without such notification and for which payment has not been made. Additionally, You will be held liable for 30 days of service after notice of cancellation or change to Your subscription is provided by You to Ximble.
- All fees associated with Your subscription term are due in full upon commencement of such term. If You choose to increase the number of authorized Users during Your subscription term or otherwise upgrade Your Service (an "Upgrade"), any incremental subscription fees will be prorated over the remaining period of Your subscription term and shall be due and payable at the time of the implementation of the Upgrade. If Your subscription is terminated prior to the end of the applicable subscription term for any reason other than Ximble's breach, You shall pay Ximble a termination charge (which You acknowledge as liquidated damages reflecting a reasonable measure of actual damages and not a penalty) equal to 100% to the fees that would have become due for the remainder of such subscription term, if any, in addition to any fees outstanding as of the date of termination.
- All fees are exclusive of all taxes or duties imposed by governing authorities. You alone are responsible for payment of all such taxes or duties.
- If You request SMS (text message) alerts as a component of the Service, Ximble will not be responsible for any charges incurred by You or any User from any mobile service provider with respect to such SMS alerts.
- Ximble's pricing is set forth at http://www.ximble.com/pricing/, as may be updated from time to time. Ximble may at any time, upon notice required by applicable law, change the price of Your subscription or any part thereof, or institute new charges or fees. Price changes and institution of new charges implemented during Your subscription period will come into effect for any subsequent subscription periods and to all new subscribers after the effective date of the change. If You do not agree to any such price changes, then You must cancel Your subscription and stop using the Service prior to the commencement of the renewal subscription period for which the price change applies.
- Intellectual Property Rights
- You acknowledge that Ximble owns all right, title and interest in and to the Service and the Software, including without limitation all intellectual property rights, and such rights are protected by U.S. and international intellectual property laws. You agree that You will not copy, reproduce, alter, modify, or create derivative works from the Service or the Software and, to the extent You create any such derivative works, such derivative works shall be owned solely by Ximble.
- Ximble shall retain all right, title and interest in and to the Software, Service, the documentation for the Software ("Documentation"), and all modifications and/or enhancements to the Software, regardless of the source of any idea for any such enhancement or modification and regardless of whether You have provided input or feedback regarding such modifications and/or enhancements. You acknowledge that Ximble will retain all right, title and interest to transactional and performance data related to use of the Software or Service which Ximble may collect, use and disclose for its business purposes (including software use optimization and product marketing).
- In furtherance and not in limitation of the foregoing:
- All materials on Ximble's website, including without limitation, the Ximble logo, design, text, graphics, information, data, images, audio, video, metadata, compilations, graphical user interfaces, other files, and the selection, arrangement and organization thereof are either owned by Ximble or are the property of Ximble's suppliers or licensors. You may not use such materials without permission. Copyright © 2014 Nimble Software Systems, Inc. ALL RIGHTS RESERVED.
- All page headers, custom graphics, button icons and scripts are trademarks or trade dress of Ximble. Any use by You or any of Your Users of Ximble's trademarks and trade dress is for the sole benefit of Ximble and all goodwill generated by such use will inure to Ximble. If You or any of Your Users refer to Ximble's trademarks or logos, You must include appropriate attribution to Ximble. All other trademarks, trade names and the like that appear on the Ximble's website are the property of their respective owners. You and Your Users may not use any of these trademarks, trade dress, or trade names without express permission.
If You become a subscriber of the Service, You agree that Ximble can disclose the fact that You are a paying customer. During the term of this Agreement, and unless otherwise agreed in writing by You and Ximble, You grant Ximble the right to reference You, along with Your logo, in marketing materials and on Ximble's public web site until such time as Your use of the Service is discontinued.
- Warranties and Liability
- TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, Ximble HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE, SERVICE, DOCUMENTATION, AND OTHER MATERIALS AND/OR SERVICES. Ximble DOES NOT WARRANT THAT OPERATION OF THE SOFTWARE OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE FROM VIRUSES, MALWARE, TROJAN HORSES, TIME BOMBS OR OTHER HARMFUL SOFTWARE, AND NO INFORMATION OBTAINED BY YOU FROM Ximble OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
- In no event will Ximble, its affiliates, officers, agents, or employees be liable for any indirect, consequential, special, punitive, or exemplary damages arising out of this Agreement or otherwise with respect to the Software or Service. The aggregate liability of Ximble with respect to this Agreement, the Software, and the Service, to the extent permitted under applicable law, is limited to the fees collected by Ximble from You pursuant to this Agreement in the six months preceding the imposition of liability.
- If You or any User requests SMS or email alerts as a component of the Service, Ximble shall have no liability with respect to any SMS-related or email-related errors or delays, or any deleted, missed, or late received SMS alerts or emails. You or any User may update SMS and Email preferences by visiting the Notification Preferences section of your user profile.
- Ximble has no responsibility for the accuracy, integrity, quality, legality, reliability, appropriateness of and copyright permissions of any data provided by You ("Customer Data") or for adopting procedures to identify and correct errors and omissions in Customer Data. Ximble has no obligation to review Customer Data for accuracy. Ximble has no responsibility to retain any Customer Data following termination of the Service. You warrant to Ximble that Customer Data has been collected, processed and provided to Ximble in accordance with applicable laws on the protection of data subjects with regard to the processing of personal data and on the free movement of such data, including in particular any legislation implementing the EU Data Protection Directive 95/46/EC and the Privacy and Electronic Communications Directive 2002/58/EC (as amended by Directive 2009/136/EC) in the applicable EU member state ("Data Protection Laws"), and also including laws or regulations that will apply to the transfer of Customer Data by Ximble to any of its affiliates, employees, contractors and business partners located anywhere in the world. You consent to Ximble's use of Customer Data, including consent for Ximble to move Customer Data from one environment to another located anywhere in the world, as required to provide the Service, and that You will comply with the Data Protection Laws. The terms "personal data" and "process" shall have the meanings given to them in the applicable Data Protection Laws. You further acknowledge, represent and warrant the following:
- For the purposes of the Service, You are the data controller.
- You will collect, use, transfer and otherwise process any personal data collected by or through the Service in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments, including but not limited to the Data Protection Laws. In addition, You acknowledge and warrant that the use of the Service is in compliance with any laws, enactments, regulations, collective labor agreements, orders, standards and other similar instruments that might be applicable to You and that You have obtained all necessary approvals, authorizations or other consents, and have performed any registrations, requirements, mandatory procedures, or similar obligations that may be applicable to You. In particular, You are responsible for providing appropriate information and obtaining any required consent from Users including notice and consent allowing You to own and control all Customer Data that is provided by Users.
- You have provided such information and obtained such consent to any processing of personal data by and through the Service in accordance with applicable Data Protection Laws.
- Internal Breach.
In the event of a security breach by Your employee or contractor or other User, You will maintain responsibility for initiating remedial actions and notify immediately Ximble of the breach and steps You intend to take to remedy the breach.
You agree to hold harmless and indemnify Ximble and its affiliates, officers, agents, and employees from and against any third party claim arising from or in any way related to Your use of the Software or Service, 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.
- Control Disclaimer
- Ximble will not provide You with legal advice regarding compliance, data privacy or other relevant laws, rules or regulations in the jurisdictions in which You use the Software or the Service.
- You understand that the Software can be configured and used in ways that may or may not comply with applicable laws and it is Your sole responsibility to monitor Your compliance and Your employees', contractors', and other Users' compliance with all applicable laws.
- You acknowledge that Ximble exercises no control over Your specific human resource practices implemented using the Software or Service or Your decisions as to employment, promotion, advancement, termination, notification, or compensation of any employee, contractor or other User. Ximble hereby disclaims all liability arising from Your decisions and from harmful data or code uploaded to the Software by You and Your employees or contractors or other Users.
- Governing Law; Jurisdiction. THIS AGREEMENT IS MADE IN ACCORDANCE WITH AND IS GOVERNED AND CONSTRUED UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REFERENCE TO SUCH STATE'S CONFLICTS OF LAWS PRINCIPLES. IN NO EVENT MAY THIS AGREEMENT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. Any legal action or proceeding relating to this Agreement, the Service, or the Software shall be instituted in a state court located in San Diego County, California or a federal court located in the Southern District of California and no other venue. You and Ximble agree to submit to the exclusive jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding. Nothing in this Agreement limits either party's ability to seek equitable relief.
- No Assignment. You many not, directly or indirectly, by operation of law or otherwise, assign any rights or obligations under this Agreement without Our prior written consent.
- No Partnership. The parties to this Agreement are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties to this Agreement.
- Notice. Except as otherwise provided in this Agreement, all notices to be provided by Ximble to You under this Agreement may be delivered in writing (1) by nationally recognized overnight delivery service ("Courier") or US mail to the contact mailing address provided by You; or (ii) electronic mail to the electronic mail address provided by You. Except as otherwise provided herein, you must give notice to us in writing by Courier or US mail to the following address: Nimble Software Systems, Inc., 2173 Salk Ave, Suite 250, Carlsbad, CA 92008, Attn: Legal Dept. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
- Merger and Amendments. This Agreement encompasses the entire agreement between You and Ximble with respect to the subject matter hereof and supersedes all prior representations, agreements and understandings, written or oral (including, without limitation, any prior versions of the terms and conditions of use of the Service or Software).
- Waiver. The failure of Ximble to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
- Force Majeure. Ximble will not be liable for failing to perform under this Agreement by the occurrence of any event beyond its reasonable control, including, without limitation, a labor disturbance, an Internet outage or interruption of service, a communications outage, failure by a service provider to Ximble to perform, fire, terrorism, natural disaster or war.
- Limitation of Actions. You acknowledge and agree that, regardless of any statute or law to the contrary, any claim or cause of action You may have arising out of, relating to, or connected with Your use of the Software or Service, must be filed within one calendar year after such claim or cause of action arises, or forever be barred.
- Federal Government Users. If you are a U.S. federal government department or agency or contracting on behalf of such department or agency, this Service is a "Commercial Item" as that term is defined at 48 C.F.R. §2.101, consisting of Commercial Computer Software and Commercial Computer Software Documentation, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, this Service is licensed to You with only those rights as provided under the terms and conditions of this Agreement.
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