By using Ximble’s employee scheduling services and any related products, applications, 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.
Data Protection and Management
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 as an individual. “We,” “Us,” 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,” and includes without limitation any of Your current or former employees, officers, agents, contractors, any other representatives, Your subsidiaries, or other related entities, irrespective of whether their account to access the Service or Software is active and irrespective of whether they are acting on your behalf and/or as a User or customer.

If the company you represent, does not agree to this Agreement, or you yourself do not agree to this Agreement, You hereby agree and acknowledge that You are prohibited from using the Service.

  1. Term of Agreement and Renewal
    1. 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: https://www.ximble.com/terms/
    2. 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). If You are on an annual plan and You want to switch to a monthly plan, contact billing@ximble.com at least seven (7) days before the subscription renews, and Ximble will put you on a monthly plan at the end of Your annual plan. If You add additional Users to Your plan, Ximble will automatically bill You a pro-rated charge for Your additional Users. If you remove Users from your plan, Ximble will provide you a credit for the unused portion of Your unused portion of the subscription that may be used against future charges, as outlined in Section 6(c).
    3. 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.
  2. Termination and Expiration
    1. 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 5-13.
  3. Software Usage Rights
    1. 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 Software, as part of the Service, in compliance with all applicable local, state, national, and international laws, rules and regulations.
    2. 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 provided 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 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 third party fees that You choose to incur at your option (such as hardware, computing, communication and other fees) in order to access the Service by You and/or Your Users. You acknowledge 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.
    3. 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.
    4. You shall not, shall not agree to, shall not attempt to, and shall not authorize or encourage any User or third party to:
      1. 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.
      2. use the Service to engage, directly or indirectly, in transmission of spam, chain letters, junk mail, or any other type of unsolicited solicitation.
      3. use the Service for any fraudulent or inappropriate purpose.
      4. 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.
      5. 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.
      6. use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service or the Software (provided that nothing will otherwise restrict You from retrieving any of Your data that You provide to Ximble).
      7. 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.
      8. 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.
      9. 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.
      10. 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.
      11. 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.
      12. make the Service available to Users in excess of the number of Users permitted by Your subscription.
      13. collect, manually or through an automatic process, information about other users or other information relating to the Service.
      14. use any meta tags or any other hidden text utilizing Ximble’s name, trademarks, or product names in any manner and in any place.
      15. advertise, offer to sell, or sell any goods or services.
      16. infringe any patent, trademark, trade secret, copyright, right of publicity or other right of any party, or violate any law or administrative rule.
      17. access or use the Service for purposes of monitoring the Service’s availability, performance or functionality, or for any other benchmarking or competitive purposes.
      18. use the Service to store or transmit any “protected health information,” as that term is defined in 45 C.F.R. 160.103.
      19. permit any User or other third party to do any of the foregoing.
    5. If You integrate with Ximble using our API, You must use efficient programming. Ximble may determine in its sole discretion that any API integration has or is degrading Ximble’s system performance. Should Ximble make such determination, Ximble reserves the right (with notice to you) to throttle Your API connections, or suspend or terminate Your Ximble account. In the event of any such suspension, you will pay Ximble a termination charge as covered by subsection (c).
    6. 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, browser software 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.
  4. 30 Day Money Back Guarantee
  5. 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.

  6. Onboarding Services Rights and Obligations
    1. 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.
    2. 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.
    3. Service Level: Unless otherwise negotiated with the Ximble Sales representative, You will receive:
      1. Up to three (3) live, online training sessions to the audience of your choice. Each training session will be one (1) hour in duration.
      2. 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.
      3. 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.
      4. Employee roster uploading assistance is included with each paid Onboarding service. (A 2 working days turnaround time is to be expected)

      5. 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.
  7. Payment Terms
    1. 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 support@ximble.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.
    2. 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 through Ximble’s app. There are no refunds if you decide to cancel your annual plan early, and such cancellation shall be subject to a termination charge as discussed in Section 6(c).
    3. 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 You remove Users from Your account, Ximble will credit back to You the pro-rated portion of fees associated with that removed User or Users. This credit can be used against any new charges incurred with Ximble. Credits cannot be refunded. 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 fair estimation of actual damages incurred by Ximble for any such breach and not a penalty, and that such damages are a reasonable calculation of the estimated damages that Ximble would suffer in the event of such breach) 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.
    4. 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.
    5. 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.
    6. Ximble’s pricing is set forth at https://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.
  8. Intellectual Property Rights
    1. 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.
    2. 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).
    3. In furtherance and not in limitation of the foregoing:
      1. 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.
      2. 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.
    4. The Customer and User shall be the sole and absolute owners of all Customer Data and User Data (including any Personal Data), respectively, however created, absent agreement outside of the terms of this Agreement. Regardless of terms in this Agreement that may suggest otherwise, You and all Users grant to Us, including Our subsidiaries and any and all other affiliates, a non-exclusive, irrevocable and perpetual license to use, reproduce and otherwise exploit and search the Customer Data and User Data for the following purposes and under the following conditions:
      1. to provide the Service and any purposes which We consider ancillary to Our providing the Service;
      2. in accordance with our Privacy Policy (located at https://www.ximble.com/privacy/) and Data Processing and Security Terms (located at https://www.ximble.com/DPST/), whichever may apply based on Your and/or Your Users location;
      3. to contact You and Your Users in relation to and providing to the Service or as required by applicable law;
      4. to verify whether Your or others’ use of the Service is in violation of any applicable law or in violation of this Agreement;
      5. to generate statistical or other information used by Us (including Our subsidiaries, affiliates, or other third parties) either directly or indirectly through incorporation in a database, marketing list, report, or other format; however Our use of any Data under this subsection will be in a form that does specifically identify any Customer or User.
  9. Publicity
    1. 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.

  10. Privacy Policy and DPST.
    1. If You are located outside the European Economic Area You agree to comply with Ximble’s Privacy Policy available at https://www.ximble.com/privacy/, as may be updated from time to time and as is incorporated into this Agreement by reference (the “Privacy Policy”). If you are located inside the European Economic Area, or are otherwise protected by Data Protection Laws such as the General Data Protection Regulation, you agree to comply with Ximble’s Data Processing and Security Terms available at , as may be updated from time to time and as is incorporated into this Agreement by reference (the “DPST”). You agree to cause all Users inside the European Economic Area or otherwise subject to Data Protection Laws to comply with the DPST and to cause all other Users to comply with the Privacy Policy.
  11. Data Protection and Management
    1. Personal Data
      We recognize that Customer Data or User Data may include the Personal Data of Users based in the European Economic Area to which the Data Protection Laws apply. Details of Our data processing activities including the types of Personal Data processed and the Users concerned are detailed in Annex A of this Agreement. The obligations under this section shall only apply where the Data Protection Laws are in effect as the result of Our processing of Personal Data of Users located in the European Economic Area.
    2. Use of Personal Data

      You, any and all Users, and We all (collectively the “Parties”) acknowledge and agree that except as set out in in this clause (b), We will act as a Data Processor in respect of Our processing of any Personal Data of Users provided to Us for the purpose of Our providing the Service; and notwithstanding the terms herein regarding Your and the User’s ownership of data, We may act as a Data Controller in connection with the processing of Personal Data of Users to:

      1. comply with our own obligations under applicable law and regulations and to establish, exercise or defend legal claims
      2. contact Users in relation to and provide to Users the Service and/or any offering outside of the Service
      3. improve the Service for all Customers and Users; and/or
      4.  process such Personal Data in any other context which requires Us to determine the purposes and means of such processing.
    3. Our obligations as Data Processor. The Parties acknowledge that We will be a Data Processor when We process Personal Data pursuant to clause (b) of this section and as a result We shall:
      1. process the Personal Data only at the instruction of the Customer or the User, as applicable (including the terms of this Agreement);
      2. only use Personal Data for purposes necessary to provide the Service;
      3. create and enforce appropriate technical and organizational protections to preserve the security of Personal Data that We process as necessary for providing the Service, and to protect Personal Data against unauthorized or unlawful processing, accidental or unlawful destruction and damage or accidental loss, modification, unauthorized disclosure, or access;
      4. make reasonable efforts to make sure the policies and processes We have in place are appropriate with regard to employees or agents who have access to Personal Data disclosed to Us by You or a User under this Agreement, and ensure that any employees or agents who are appointed to be in charge of data processing are under confidentiality obligations;
      5.  provide prompt written notice to You or any User with all relevant details that are reasonably available of any accidental or unlawful destruction, loss, or alteration of Personal Data, or any unauthorized disclosure of or access to Personal Data;
      6.  upon termination of this Agreement, return to You or any User or, at Your or any User’s option, destroy, any Personal Data You or any User have provided to Us as per the terms of this Agreement except for any requirement that We retain any Personal Data to comply with applicable laws or any actual or possible legal claims and save to the extent that We proceed or continue to act as a Data Controller in relation to the processing of Personal Data pursuant to clause (b) of this Section;
      7. make available to You, any User, and any “Supervisory Authority” (defined as any independent public authority which is established by a European Member State pursuant to Article 51 of the General Data Protection Regulation or any similar regulatory authority responsible for the enforcement of the Data Protection Laws) all needed information with regard to Our data processing activities unless providing this information would be in breach of the Data Protection Laws;
      8. upon written request from You or a User for an audit of such processing, We shall make a choice to either:
        1. co-operate with and make available to You, any User, and any third party such as a Supervisory Authority (as required by applicable law) all necessary information regarding Our processing of data and allow You to audit Our compliance with the obligations listed here by requesting information about and inspecting our offices, data centers, and equipment used by Us to process Personal Data of Users, provided such inspection is during normal business hours, with at least thirty (30) days’ notice, and does not interrupt Our day-to-day business activities directly or indirectly; or
        2. contract third party security professionals (qualified auditor) at Our selection to audit the technical and organizational measures described in clause (c)(III) in a prompt and reasonable timeframe in order to create an audit report (“Audit Report”). Such Audit Report will be the confidential information of Us or Our subprocessor(s) and may be performed or used for other purposes in addition to satisfying this clause. We will provide You with a confidential copy of the Audit Report so that the You can reasonably verify Our compliance with Our obligations under this clause within 14 days of completion of the Audit Report by the selected qualified auditor.;

        and We may charge You and/or the Customer any reasonable costs we incur in complying with a request made under this clause.

      9.  provide the Customer with reasonable assistance (at the Customer’s expense) in assessing the impact of the processing of the Personal Data and any consultations with a data protection authority, if and to the extent required by the Data Protection Laws; and
      10. to the extent that We engage any subprocessor, we shall be responsible for ensuring that: (a) such subprocessor shall be fully liable to the Customer for the performance of Our contractual obligations, (b) there is a written agreement in place with such subprocessor which contains terms and conditions which are substantially equivalent to the terms and conditions set out in this Agreement; (c) any such subprocessors shall be identifiable to the Customer, including their names, and (d) we maintain a list of subprocessors that Customer may request.
    4. Restricted Transfers
    5. The Parties all acknowledge that We will be a Data Processor of Personal Data pursuant to this Agreement and accordingly:

      (I) the Customer, as transferor (and, for the purposes of populating the Standard Contractual Clauses, “data exporter“), and We, on behalf of itself and each subprocessor that we engage as transferee (and for the purposes of populating the Standard Contractual Clauses, “data importer“), hereby enter into the Standard Contractual Clauses, in respect of any Restricted Transfer, which terms shall take precedence over any in this Agreement. A Restricted Transfer is defined as the transfer of Personal Data from the Customer to Us or an onward transfer of Personal Data from Us to another entity or affiliate, in each case, where such transfer would be prohibited by the Data Protection Laws in the absence of the appropriate safeguards such as the Standard Contractual Clauses as described herein. For the sake of clarity and without any limitations to the general applicability of the previous statements herein, all parties to this Agreement agree that any transfer of Personal Data to or from the European Economic Area to any jurisdiction not within the European Economic Area shall be considered a Restricted Transfer if applicable law would prohibit such a transfer, with applicable law including but not limited to the EU Data Protection Laws in the absence of appropriate safeguards such as the Standard Contractual Clauses established hereunder; and (b) where a transfer of Personal Data from one country to another country is of a type authorized by the Data Protection Laws in the exporting country for example in the case of transfers from within the European Union to a country such as the US or a scheme such as the US Privacy Shield which is approved by the European Commission as ensuring an adequate level of protection or any transfer which falls within a permitted derogation, such transfer shall not be a Restricted Transfer for the purposes of this Agreement. The contents of Annex B and Annex C shall be deemed populated and incorporated into the Standard Contractual Clauses in Appendix 1 and Appendix 2 respectively as required to give effect to its terms;

      (II)  the Standard Contractual Clauses shall come into effect on the later of:

      1. the data exporter becoming a party to them;
      2. the data importer becoming a party to them; or
      3. commencement of a Restricted Transfer; and

      (III) We warrant and represent that, before the commencement of any Restricted Transfer to a subprocessor, Our entry in the Standard Contractual Clauses under this clause as agent for and on behalf of that subprocessor will have been duly and effectively authorized (or subsequently ratified) by that subprocessor.

    6. Our obligations as Data Controller
    7. The Parties acknowledge that We will be a Data Controller when we process Personal Data pursuant to clause (b) of this Section 10 and accordingly We shall, in respect of such processing:

      1. (I)  comply with all of Our legal obligations under the Data Protection Laws which arise in connection with Our processing of such Personal Data, including in relation to providing fair processing information to the Users;
      2. (II)  process such Personal Data only for purposes compatible with providing the Service to the You and any User (save to the extent that We have (I) provided fair processing information to Users in relation to another purpose; and (II) legitimized our processing of Personal Data for another purpose either by obtaining consent from You and/or the relevant User or using an alternative method of legitimization such processing in accordance with Data Protection Laws); and
      3. (III)  not do or permit to be done anything within Our knowledge or control which may cause or otherwise result in You being in breach of the Data Protection Laws.
    8. Customer’s obligations. Despite anything in this Section or Agreement to the contrary, You agree to:
    9. (I) comply at all times with the Data Protection Laws, including but not limited to when You disclose Personal Data to Us under this Agreement, and You agree to provide Us with such cooperation, assistance, and information as We need to comply with Our obligations under the Data Protection Laws;

      (II)  ensure that any instructions You issue to Us are in compliance with the Data Protection Laws;

      (III) provide all necessary fair processing information to relevant Users, and take all other appropriate steps, to ensure the provision of Personal Data to Us (including for the disclosure of Personal Data outside of the EEA) complies with the Data Protection Laws and to enable Us lawfully to process such Personal Data for the purpose of providing the Service (but not, for the avoidance of doubt, to enable Us to process Personal Data of Users for the purposes of providing and contacting such Users in relation to any service offering outside of the Service) without any further consent, approval or authorization, and, on Our request from time to time, the Customer shall consult, and comply with, any reasonable requests of Our in relation to the same;

      (IV) promptly provide evidence upon Our request that You have obtained and provided any and all required notices and consents or otherwise made legitimate the processing of Personal Data by Us for the purposes of Our providing the Service;

      (V) ensure that any Personal Data provided to Us is limited to what is necessary in order for Us to provide the Service and such Personal Data is accurate and up- to-date to the best of the Your knowledge at the time that it is provided to Us;

      (VI) use all reasonable efforts to promptly notify Us upon becoming aware that Personal Data has become inaccurate or out of date; and

      (VII) not do or permit to be done anything within Your knowledge or control which may cause or otherwise result in Us being in breach of the Data Protection Laws.

    10. Joint Obligations of All Parties
    11. The Parties agree to:

      (I) deal promptly and in good faith with any and all reasonable and relevant inquiries from the other party relating to the processing of Personal Data under this Agreement; and

      (II) upon receipt of any complaint, notice, request, or communication from a regulator (including any Supervisory Authority), a User, or any third party which relates to any of Party’s processing of Personal Data under this Agreement or a potential failure to comply with the Data Protection Laws, without undue delay forward such complaint, notice, request, or communication to Us and provide Us with reasonable cooperation and assistance in relation to the same.

    12. No Backup Records
    13. You acknowledge that We do not provide back up or other similar services in respect of the Customer Data, User Data, or Personal Data and that You and any User are responsible for implementing your own back up and data retrieval procedures in respect of all such data. Upon termination of this Agreement, Customer Data, User Data, and/or Personal Data and/or any backups may, at Our discretion, be deleted.

  12. Warranties and Liability
    1. 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.
    2. 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.
    3. 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.
    4. Ximble has no responsibility for the accuracy, integrity, quality, legality, reliability, appropriateness of and copyright permissions of any data provided by You (“Customer Data”), which may or may not include User Data and/or Personal 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 collecting, processing, storing, and sharing of Personal Data and on the free movement of such data, including in particular: (I) any legislation implementing the EU Data Protection Directive 95/46/EC (as superseded by Regulation (EU) 2016/679, also known as the “General Data Protection Regulation”) and (II) any other applicable legislation in force from time to time in the European Union relating to either or both privacy or the processing of Customer Data, including but not limited to 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:
      1. For the purposes of the Service, You are the data controller.
      2. 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.
      3. 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.
  13. Internal Breach.
  14. 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.

  15. Indemnification.
  16. 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.

  17. Control Disclaimer
    1. 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 Service.
    2. 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.
    3. 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.
  18. Miscellaneous
    1. 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.
    2. 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.
    3. 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.
    4. 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.
    5. 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).
    6. 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.
    7. 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.
    8. 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.
    9. 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.

AMENDMENT TO XIMBLE TERMS OF SERVICE APPLICABLE TO U.S. GOVERNMENT USERS/MEMBERS

If you are a government user or otherwise accessing or using any XIMBLE service in a government capacity, this Amendment to Ximble Terms of Service applies to you.

Have more questions? We’re here to help, so please contact us at support@ximble.com.

 

ANNEX A

DETAILS OF DATA PROCESSING ACTIVITIES CARRIED OUT BY US

Subject matter and duration of the processing of Personal Data

The subject matter and duration of the processing of the Personal Data are set out in the Agreement.

Data Subjects

The Personal Data processed concern the following categories of Data Subjects: Customers and Users.

Categories of data

The Personal Data processed may contain the following categories of Personal Data:

Name;

Phone number;

Date of Birth;

Gender;

Credit card details or other billing information

Email address;

Home and business postal addresses;

Profile photo;

Contacts;

Social networking information

Log data

Special categories of data

The Personal Data processed contain the following special categories of Personal Data: None

Processing operations

The Personal Data processed will be subject to the following basic processing activities: The nature and purpose of the processing of the Personal Data are set out in the Agreement.

 

ANNEX B

POPULATION OF APPENDIX 1 OF THE STANDARD CONTRACTUAL CLAUSES

Data Exporter

The data exporter is You, the Customer.

Data Importer

The data importer is Us.

Data Subjects

The Personal Data processed concern the following categories of Data Subjects (Users):

This section is deemed to be populated with the content of the section headed “Data Subjects” in Annex A to this Agreement.

Categories of data

The Personal Data processed contain the following categories of Personal Data:

This section is deemed to be populated with the content of the section headed “Categories of data” in Annex A to this Agreement.

Special Categories of data (if appropriate)

The Personal Data processed contain the following special categories of data:

This section is deemed to be populated with the content of the section headed “Special Categories of data (if appropriate)” in Annex A to this Agreement.

Processing operations

The Personal Data processed will be subject to the following basic processing activities:

This section is deemed to be populated with the content of the section headed “Processing operations” in Annex A to this Agreement.

 

ANNEX C

POPULATION OF APPENDIX 2 OF THE STANDARD CONTRACTUAL CLAUSES

Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4.4 and 5(c) of the Standard Contractual Clauses: