Master Services Agreement

Last Updated: September 1, 2023
(MSA Archive)

By executing an Order with Easy Access, Inc., a Delaware corporation d/b/a Nimbello, located at 7321 Heritage Square, Suite 2140, Granger, IN 46530 (“Nimbello”), that references or incorporates this Master Services Agreement (“Agreement”), the entity entering into such Order ("Customer", together with Nimbello the "Parties", and each a "Party") accepts and agrees to be bound by the terms of this Agreement as of the effective date of the initial Order between the Parties(“Effective Date”).

WHEREAS, Nimbello is in the business of providing its proprietary accounts payable automation software application under a software as a service model, as well as related supporting services (collectively, the "Services"); and Customer desires to retain Nimbello to provide such Services upon the terms and conditions set forth herein.

NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the Parties agree as follows:

1. DEFINED TERMS

Capitalized terms shall have the meanings ascribed to them in this Agreement, inclusive of the Definitions Schedule (Schedule A).

2. SERVICES

2.1. Grant of License.

Subject to the terms and conditions contained in this Agreement, Nimbello hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable (under the terms of this Agreement) right to access the Services ordered pursuant to an Order during the Subscription Term, solely for the use by Customer's Authorized Users for Customer's internal business purposes.

2.2. Usage Restrictions.

Customer shall not: (a) use the Services except as expressly authorized in this Agreement; (b) decompile, disassemble or reverse engineer the Services, or otherwise attempt to learn the underlying source code, structure or algorithms of the Services; (c) copy, modify, distribute, adapt, or create derivative works of the Services; (d) rent, lease, loan, sublicense, assign, distribute, resell or otherwise commercially exploit the Services or make the Services available to any third party; (e) access the Services to build a competitive product or service, or copy any ideas, features, functions, graphics of the Services; (f) interfere with or disrupt the integrity or performance of the Services; (g) remove or obscure any proprietary or other notices contained in the Services; (h) disclose to any third party the results of any benchmark tests or other evaluation of the Services; (i) intentionally upload, transmit, or distribute to or through the Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (j) intentionally use the Services for any illegal purpose, or in violation of any law or treaty, including but not limited to U.S. export control laws;.

2.3. Customer Responsibilities.

Customer shall limit access to, and use of, the Services to its Authorized Users, and is responsible for all use of the Services by it Authorized Users.

2.4. Suspension.

Nimbello may temporarily suspend Customer’s access to any portion or all of the Services if Nimbello reasonably determines that Customer is in material breach of this Agreement or Customer’s continued access to the Services creates a material security vulnerability. Nimbello will endeavor to provide advanced notice of such suspension unless the suspension is made under emergency circumstances, in Nimbello’s sole discretion.

2.5. Third-Party Solutions.

Customer acknowledges that the Services may interoperate with various third-party products, platforms and solutions (“Third-Party Solutions”). Customer acknowledges that some functionality of the Services may be unavailable or may not work properly if the Third-Party Solution itself is unavailable, or if the vendor providing the Third-Party Solution modifies its integration point or API with the Services. Where Customer has purchased access to or services from a Third-Party Solution from Nimbello in an Order, Nimbello will employ commercially reasonable efforts to work with such Third-Party Solution provider to resolve such issues in a prompt and efficient manner. Customer is responsible for resolving any disruption or issue due to a Third-Party Solution for which it has contracted independently of Nimbello.

2.6. Subcontractors and Suppliers.

Nimbello may engage its subcontractors, suppliers, or vendors for portions of the Services, so long as Nimbello remains responsible for performance and compliance of the terms and conditions of this Agreement.

3. FEES AND PAYMENT

3.1. Fees and Expenses.

All fees payable for the Services (the “Fees”) under this Agreement are due and payable in United States currency drawn on a United States bank unless otherwise set forth in the Order. Except as otherwise set forth in an Order or this Agreement, all Orders are non-cancellable, all Fees are non-refundable, and Customer shall pay invoices within thirty (30) days of the invoice date without setoff or deductions.

3.2. Late Payment.

Payments not received by the due date of the invoice shall, at Nimbello’s sole discretion, be subject to a late charge equal to one and one-half percent (1.5%) per month or the maximum allowed by applicable law, whichever is less, on the overdue balance.    

3.3. Taxes.

All Fees are exclusive of federal, state, local and foreign taxes, duties, levies, withholdings and similar assessments (“Taxes”). Customer is responsible for the payment of all Taxes, excluding Taxes Nimbello’s net income.

4. INTELLECTUAL PROPERTY

4.1. Nimbello and Third-Party IP

Nimbello owns the Services, and any inventions and innovations by Nimbello, all derivatives thereof, and all worldwide Intellectual Property Rights, property and confidential information rights in or associated with the foregoing (collectively, "Nimbello IP"). No ownership rights in Nimbello IP are transferred to Customer as a result of this Agreement, unless specifically, and only to the extent, set forth in an Order. The applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Solutions.  

4.2. Feedback

In the event that Customer or any of its employees, contractors, or agents provides Nimbello with any suggestions, ideas, improvements or other feedback with respect to the Services (“Feedback”), the Feedback will not be considered confidential information of the Customer. Nimbello shall be free to use any part of the Feedback without limitation, without any attribution or compensation to any party, and for any purpose. Customer hereby assigns all right, title, and interest to such Feedback to Nimbello.

4.3. Customer Data and Customer Materials

4.3.1. Ownership and License to Customer Materials. Customer and Customer's suppliers own all rights, title, and interest, including Intellectual Property Rights to Customer Materials. Customer hereby grants to Nimbello the non-exclusive and sublicensable (to Nimbello's contractors, suppliers, and vendors engaged in the provision of Services where applicable) right and license to receive, retrieve, process, and transmit any Client Materials necessary to perform Services under this Agreement.

4.3.2. Customer Responsibility. Customer acknowledges and agrees that Customer shall be solely responsible for and shall have all liability for and with respect to all Customer Materials, including Customer Data.

4.4. Aggregated Data.

Customer agrees and acknowledges that Nimbello may monitor, collect and analyze information related to Customer’s usage of the Services to improve and enhance the Services, provide support, and for other development purposes, including industry-wide benchmarking; provided, however, any Customer Materials included in such information will be aggregated and anonymized, and not contain any personally identifiable information provided by Customer

5. CONFIDENTIALITY AND NON-DISCLOSURE

5.1. Non-Disclosure Obligations

During the Term, and for a period of three (3) years after termination of this Agreement, the Receiving Party shall (a) safeguard Confidential Information by using at least the same degree of care and discretion that the receiving Party uses with its own like information that it regards as confidential, but no less than the industry standard of care; (b) only use the Disclosing Party’s Confidential Information to fulfill its obligations under this Agreement; (c) only disclose the Disclosing Party’s Confidential Information to Receiving Party’s employees, consultants and agents who have a “need to know”, who have been apprised of the confidential nature of the information, and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this section; and (d) promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party. Each Party acknowledges that its breach of its obligations under this Sections 5.1 may cause irreparable damage to the other Party and hereby agrees that the other Party will be entitled to seek injunctive relief under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction.

5.2. Compelled Disclosure

Notwithstanding the foregoing, if the Receiving Party is compelled under judicial order or requirement of Law to disclose any Confidential Information it shall provide the Disclosing Party with prompt written notice (where legally permissible), and if requested, cooperate with the Disclosing Party to obtain a protective order or other appropriate remedy to eliminate or reduce the compelled disclosure.

5.3. Return or Destruction

The Receiving Party shall, at Disclosing Party’s request, destroy the Disclosing Party’s Confidential Information no later than thirty (30) days of receiving such request, with certification of such action by an officer of the Receiving Party. The Receiving Party may retain, for archivable purposes only to the extent and time period necessary for Receiving Party to comply with its legal, bookkeeping, audit, or tax purposes. 

5.4. Publicity

Nimbello may identify Customer as a customer of Nimbello's Services in Nimbello's advertising, marketing materials, media notifications, and customer lists so long as nothing therein contains any representations by Customer or Customer’s Confidential Information.

5.5. Privacy and Security

Each Party shall abide by the terms of its published privacy notices and policies in handling any "personally identifiable information," "personal data," "personal health information," "nonpublic personal information," or the like, as such terms are defined under the applicable data privacy laws ("Personal Data").

6. TERM, TERMINATION, AND SURVIVAL

6.1. Term

This Agreement shall commence as of the Effective Date and unless sooner terminated pursuant to this Agreement, shall continue in effect until the termination or expiration of all Orders entered hereunder. The term for each Order will be as stated in the Order. Unless otherwise specified in an Order, the term of each Order will renew for additional periods of one year each unless one party notifies the other of its intent to terminate at least sixty (60) days prior to the end of the current term of such Order.

6.2. Termination

In addition to any termination rights that may be available to a party under this Agreement, either Party may terminate this Agreement, or any or all Orders entered hereunder, upon a material breach of this Agreement by providing the other Party written notice of the other Party's material breach and such other Party does not cure said breach within 30 days of its receipt of the written notice.

6.3. Effects of Termination

6.3.1.  Upon termination by Customer (i) for material breach; or (ii) due to a Force Majeure Event, Nimbello shall refund any prepaid fees for the terminated portion of the term for which such fees were applicable.

6.3.2.  Upon termination of this Agreement or any Order, Customer’s access to any Services and Services covered under the applicable Order(s) will also be terminated as of the termination date.

6.4. Survival of Termination

The expiration or termination of this Agreement for any reason shall not release either Party from any obligation or liability to the other Party, including any payment obligation that has already accrued hereunder. The following sections remain enforceable and are intended to survive the termination of the Agreement:

(a) Section 4: Intellectual Property
(b) Section 5.1 - 5.3: Confidentiality and Non-Disclosure
(c) Section 6.4: Survival of Termination
(d) Section 9: Equitable Remedies
(e) Section 10: Indemnification
(f) Section 11: Limitation of Liability
(g) Section 12: Notice
(h) Section 14: Assignment and Delegation
(i) Section 16: Entire Agreement and Severability

7. REPRESENTATIONS AND WARRANTIES

7.1. Mutual Representations and Warranties

Each Party represents and warrants that: (a) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; and (b) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.

7.2. Nimbello Limited Warranties

Nimbello represents and warrants that the Services: (a) will perform in material conformity with the Documentation; (b) do not infringe the intellectual property rights of any third party; (c) will not violate any applicable Law; (d) will be provided using personnel of appropriate skill, experience, and qualifications; (e) are and will continue to be protected from malicious or disabling code using industry standard practices and tools; (f) have been created using, and will continue to maintain during the Term, at least an industry standard level of security given the state of technology available for such Services, and Nimbello will use commercially reasonable practices designed to protect Customer Materials.

7.3. Customer Limited Warranties

Customer represents and warrants that: (a) Customer Materials do not and will not infringe upon or otherwise violate the rights of any third party; (b) Customer Materials and Customer's use of the Services does not and will not violate any Law.

7.4. Disclaimer

EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS". EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, UNDER THIS AGREEMENT. PROVIDER SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

8. FORCE MAJEURE

No failure, delay or default in performance of any obligation of a Party shall constitute a default or breach to the extent that the same arises out of a cause beyond the control (including, but not limited to: acts of God, war, strikes, lack or failure of transportation facilities, acts of terrorism, fire, or acts of government authority. If any such failure or delay in performance continues for more than thirty (30) days, either party may terminate this Agreement upon written notice to the other. This Section 8 shall in no way limit the right of either Party to make any claim against third parties for any damages suffered due to said causes.

9. EQUITABLE REMEDIES

Parties acknowledge that breach or threatened breach by the other Party of its obligations under the below listed sections would give rise to irreparable harm for which monetary damages would not be an adequate remedy:

(a) Section 4: Intellectual Property
(b) Section 5: Confidentiality and Non-Disclosure
(c) Section 14: Assignment and Delegation

In such instances, the Parties acknowledge that the non-breaching Party is entitled, in addition to any and all other rights and remedies available to the Party at law, equity, or otherwise, in respect to such breach, to equitable relief without any requirement to: (x) post a bond or security, (y) prove actual damages, or (z) prove that monetary damages will not afford an adequate remedy.

10. INDEMNIFICATION

10.1. Indemnification by Nimbello

Nimbello shall defend, indemnify and hold harmless Customer from and against all Losses awarded against a Customer based on a third-party claim that the Services infringe, misappropriate, or otherwise violate an Intellectual Property Right of a third party; provided, however, that Nimbello shall have no obligations under this Section 10.1 with respect to such claims to the extent arising out of (a) any Customer Materials; (b) Third-Party Solutions; or (c) modifications to the Services not authorized by Nimbello.

10.1.1.  IP Infringement Mitigation. If such a claim for indemnification under this Section 10.1, is made or appears possible, Customer agrees to permit Nimbello, at Nimbello's sole discretion, to: (a) modify or replace the Services or component or part thereof, to make it non-infringing, or (b) obtain the right for Customer to continue use. If Nimbello determines that none of these alternatives is reasonably available, Nimbello may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer, and promptly refund the unused portion of any prepaid fees.

10.1.2.  SOLE REMEDY. THIS SECTION 10.1 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES, INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS.

10.2. Indemnification by Customer

Customer shall defend, indemnify, and hold harmless Nimbello and its officers, directors, employees and agents, from and against all Losses arising out of or resulting from a third-party Action against Nimbello arising out of or in connection with Customer’s use of the Services other than in accordance with this Agreement.

10.3. Indemnification Procedures

Indemnitee shall promptly notify the Indemnitor in writing of any Action, provided, that failure to give such notice will only relieve the Indemnitor of liability hereunder to the extent the Indemnitor has suffered actual material prejudice by such failure. The Indemnitor may assume, at its sole option, control of the defense and investigation of such Action at the Indemnitor’s expense, including reasonable Attorneys’ fees, costs, and disbursements. Should Indemnitor assume control of the defense, Indemnitee shall cooperate with the Indemnitor in the defense and the Indemnitor shall not settle any Action in a manner that adversely affects the rights of the Indemnitee without the Indemnitee’s prior written consent. Such consent shall not be unreasonably withheld or delayed. The Indemnitee may participate in and observe the proceedings at its own cost and expense.

Should Indemnitor not assume control of the defense and investigation, Indemnitor shall reimburse Indemnitee promptly and periodically for the reasonable costs properly incurred in defending against the Action, including reasonable attorneys’ fees, expenses, and costs.

11. LIMITATION OF LIABILITY

EXCEPT FOR (I) A MATERIAL BREACH OF THE CONFIDENTIALITY PROVISIONS SET FORTH IN SECTION 5, (II) EACH PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10, AND (III) CUSTOMER’S OBLIGATION TO REMIT ALL AMOUNTS PROPERLY DUE AND OWING UNDER THIS AGREEMENT, EACH PARTY’S LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT OR IN TORT (INCLUDING WITHOUT LIMITATION, BREACH OF WARRANTY AND NEGLIGENCE CLAIMS) SHALL BE LIMITED TO THE ACTUAL, AWARDED DIRECT DAMAGES, NOT TO EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE CAUSE OF ACTION AROSE. IN NO EVENT WILL EITHER PARTY, THEIR RESPECTIVE LICENSORS, OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS OR AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY FOR (1) ANY CLAIMS OR DEMANDS OF THIRD PARTIES (OTHER THAN THOSE THIRD PARTY CLAIMS COVERED BY SECTION 10, INDEMNIFICATION); OR (2) ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR ANTICIPATED PROFITS, LOSS OF REVENUE, ECONOMIC LOSS, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE OF EQUIPMENT, OR INTERRUPTION OF BUSINESS, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. 

12. NOTICE

Unless otherwise agreed to by the Parties in a writing signed by both Parties, all notices required under this Agreement shall be deemed effective when made in writing and sent to the other Party, by either: (a) a reputable overnight courier, specifying next day delivery to the address specified in the applicable Order, which address may be updated where communicated to the other Party in writing; or (b) email to the email address in the applicable Order, which email address may be updated where communicated to the other Party in writing, without receipt of a notice of failed delivery.

13. GOVERNING LAW

This Agreement, and any disputes arising out of this Agreement, shall be governed by and construed in accordance with the laws of the State of Delaware.

14. ASSIGNMENT AND DELEGATION

This Agreement may not be assigned by a party without the prior written consent of the other party unless such assignment is to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of Customer that results or would result in a direct competitor of Nimbello directly or indirectly owning or controlling 50% or more of Customer shall entitle Nimbello to terminate this Agreement for cause immediately upon written notice.

15. INDEPENDENT CONTRACTOR RELATIONSHIP

Parties are independent contractors and neither Party may act as the agent for nor bind the other to any obligation. Nothing in this Agreement constitutes nor creates a partnership, joint venture, employer/employee relationship, affiliation, or an agency relationship between the Parties. 

16. ENTIRE AGREEMENT AND SEVERABILITY

This Agreement together with all Orders incorporated herein, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained, and supersedes all prior and contemporaneous oral and written understandings, agreements, representations, and warranties, with respect to the subject matter. In the event of a conflict between the terms of the Agreement and any Order, the terms set forth in the applicable Order govern. Customer acknowledges that any pre-printed terms and conditions on or attached to Customer’s purchase orders will be of no force or effect.  If one or more of the paragraphs in this Agreement are found to be unenforceable or invalid, the remaining paragraphs shall remain in effect.

17. MODIFICATIONS

Nimbello may amend this Agreement from time to time, and the revised terms shall be effective only upon the commencement of the next Renewal Term (as defined in the applicable Order). Any such revisions will apply to Nimbello’s customers generally, will not impose additional fees during the applicable Term, or otherwise negatively impact the respective risks or obligations assumed by each Party under the Agreement.

 

“Action” means a claim, suit, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.

“Agreement” means this Agreement and Schedules, together with all SOWs and Orders entered into by the Parties under this Agreement.

"Aggregated Data" means data and information related to Customer's or its Authorized User's use of the Services, including data or information deriving from Customer Materials, which is used by Nimbello in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.

“Authorized User(s)” means an employee, contractor or agent of Customer who Customer permits access to and use of the Services pursuant to Customer's rights to access under the terms of this Agreement.

“Business Hours” means Monday through Friday 9:00am through 5:00pm ET, excluding U.S. federal holidays.

“Confidential Information” means any information that is designated or marked as confidential or would reasonably be understood to be confidential by the circumstances of disclosure or nature of the information, including the terms of this Agreement. Confidential Information does not include any information that at the time of disclosure, as proved by the written records of the contesting party: (a) is now or which at any time in the future becomes generally known by the public through no fault of the receiving Party, (b) was in the receiving Party’s lawful possession before receipt from the disclosing Party, (c) was independently developed by either Party by lawful means, or (e) was rightfully received from a third party without a duty of confidentiality.

“Customer” means the entity identified as such in the introductory paragraph of the Agreement, including Customer’s Authorized Users.

“Customer Data” means all data and information submitted by Customer or Authorized Users to the Services.

“Customer Materials” means any documents, data (including Customer Data), content, software, computer programs, reports, specifications, and other materials supplied by Customer for the purposes of receiving Services under this Agreement.

"Disclosing Party" means a party to whom the Confidential Information belongs to under this Agreement.

"Documentation" means the user manuals, specifications, and guides relating to the Services provided to Customer by Nimbello under this Agreement for use in conjunction with the Services, including the product capability descriptions available at https://www.nimbello.com/msa/product_capability.

"Effective Date" has the meaning set forth in the introductory paragraph of the Agreement.

"Feedback" has the meaning set forth in Section 4.3 of the Agreement.

“Indemnitee” means the Party seeking indemnity.

“Indemnitor” means the indemnifying Party.

“Initial Term” shall have the meaning ascribed to it in the applicable Order, for such Order.

"Intellectual Property Rights" means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, and (e) all other similar or equivalent intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights.

"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, binding guidance, and other requirement or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction, which is applicable to a Party.

“Losses” means damages, interest, awards, penalties, fines, costs, disbursements, expenses, attorneys’ fees, the cost of enforcing any right under this Agreement, and the cost of pursuing any insurance providers.

“Order” means an order for the Services, or an SOW entered into by the Parties under this Agreement setting forth additional details of additional supporting services to be provided.

“Nimbello Personnel” means all employees and subcontractors, if any, engaged by Nimbello to perform the Services.

"Receiving Party" means a party that receives or acquires the Confidential Information of the other Party directly or indirectly under this Agreement.

“Renewal Term” shall have the meaning ascribed to it in the applicable Order, for such Order.

“Service Period” has the meaning set forth in the applicable Order for such Order.

"SLA" stands for service level agreement.

"Statement of Work" or "SOW" means a statement of work entered into by the Parties under this Agreement setting forth additional details of any professional or other services to be provided related to the Services.

"Subscription Term" means the Initial Term and all Renewal Terms for each Order, until expiration or termination.

"Third-Party Solutions" means any third-party products or services provided with or incorporated into the Services as described in the applicable Order.

 

SCHEDULE B

SERVICE LEVEL AGREEMENT (SLA)

Capitalized terms used in this Schedule that are not defined herein shall have the meaning given to those terms in the Definitions Schedule (Schedule A).

A. SERVICE AVAILABILITY

Subject to the terms and conditions of the Agreement, Nimbello will use commercially reasonable efforts to meet the "Availability Requirement", which shall mean that the Services is Available at least 99.9% of the time as measured over the course of each Service Period under the applicable Order, excluding unavailability as a result of any of the Uptime Exceptions described below in Section D. “Available” means the Services is available for access and use by Company and its Authorized Users over the internet and operating in material conformance with the Documentation. "Percentage Uptime" means the percentage of time the Services was Available during the Service Period based on the Calculation Formula.

 

B. SERVICE CREDITS

In the event of a material failure of the Services to meet the Availability Requirement ("Service Level Failure"), Nimbello shall issue a credit to Customer in the amount equal to one percent (1%) of the fee for the Services for each one percent (1%) loss of Availability below the Availability Requirement up to a maximum of ten percent (10%) of the Services fees as provided for in the applicable Order due for the Service Period (such credit referred to as “Service Credit”). Service Credits will be issued to Customer in the invoice following the Service Period in which the Service Level Failure occurred as a credit against such invoice. Customer’s sole and exclusive remedy and Nimbello's sole liability for any unavailability or non-performance of the Services is the receipt of a Service Credit in accordance with the terms of this Schedule.

C. UPTIME EXCEPTIONS

The following circumstances will constitute "Uptime Exceptions" under which the Services not being Available will not count against the Availability Requirement: (1) scheduled downtime; (2) Service Level Failure caused by Customer’s misuse, Customer’s equipment or network, or as a result of Customer Materials; (3) a force majeure event; (4) unavailability of Third-Party Solutions; or (5) the disabling, suspension, or termination of the Services pursuant to this Agreement;

 

SCHEDULE C

SUPPORT AND MAINTENANCE

As part of the Services offering, Nimbello will provide support and maintenance services during Business Hours for the Subscription Term in accordance with this Schedule.

A. ERROR REPORTING

Customer agrees to report any support requests using the communication channels provided by Nimbello for support, as may be updated from time to time. Customer must provide any relevant information including changes to its networks, as well as a reasonably detailed description of Error(s), including screenshots or relevant logs and other information reasonably requested by Nimbello in order for Nimbello to verify and reproduce the Error reported by Customer. "Error" means a reproducible failure of the Services, to perform in substantial conformity with the specifications set forth in the Documentation, whose origin can be isolated to a single cause.

B. RESPONSE AND RESOLUTION

Customer agrees to work with Nimbello support personnel during the problem isolation process, as reasonably needed.

With respect to any Errors in the Services which are reported by Customer and which are confirmed by Nimbello, Nimbello will make commercially reasonable efforts to correct such Error in accordance with the Response and Resolution Times set forth below, which may be effected by a reasonable workaround. Nimbello may reclassify Criticality Levels as it learns information about such Errors during the resolution process. Nimbello may elect to correct the Error by updating or upgrading the applicable component of the Services to a new build or version.

 

C. SUPPORT EXCLUSIONS

Although Nimbello may elect to, Nimbello is not obligated to provide support or maintenance services under the following circumstances: (1) in connection with any error or defect or problem in any other component of the Services if Nimbello has previously made available corrections for such error or defect which Customer fails to implement; (2) any error, defect or problem which can be reasonably demonstrated to have been caused by (i) Third-Party Solutions, (ii) networking, software or hardware that is not provided by Nimbello, (iii) Customer Materials, including Customer Data, (iv) a party other than Nimbello or its authorized subcontractor using the Services in a manner not in accordance with the Documentation, and (v) a Force Majeure Event; or (3) Nimbello is unable, after using reasonable efforts, to verify and reproduce the Error reported by Customer, and Customer is no longer experiencing the Error.