1. Definitions.

Background IP: means all IP owned or licensed by Nimbl.

Data Protection Laws: means all data protection and privacy laws enacted in any territory or jurisdiction in which the Services are provided, including the General Data Protection Regulation (EU) 2016/679, to the extent that and in the form that it is a requirement in connection with the Services.

Deliverables: means custom work product (including third party materials) provided by Nimbl to Customer under this Agreement.

Intellectual Property Rights:  means all registered or unregistered intellectual property rights throughout the world, including: rights in patents, copyrights, trademarks, trade secrets, designs, databases, and domain names; and moral rights.

IP: means anything protectable by an Intellectual Property Right.

Personnel: means all employees and agents of Nimbl and its subcontractors and their agents.

Product: means any product provided by Nimbl, including any Deliverables.

Services: the services provided to you by Nimbl as set forth in the invoice accepted by Customer (the “Invoice”).

Specifications: means those specifications (if any) identified in the Invoice or as described in any documentation provided regarding the Products.

Tax(es): means all government-imposed taxes, except for taxes based on Nimbl’s net income, net worth, asset value, property value, or employment.

2. Ordering Product and Services

The Invoice shall state the prices for the Products and Services.  The Customer shall provide a valid mailing address if physical shipments are ordered. Prior to development, the Customer may request a change to the delivery destination for Products in the Invoice, or change the Services provided under the Invoice. These changes may result in an increase to the cost of the Products and/or Services.  Any Product or Service not rejected within 10 days of receipt by Customer will be deemed accepted by Customer.  If Customer discovers that a Product is defective during any warranty period, Nimbl will, at its expense, repair the defective Product and re-deliver such repaired Product to Customer within a commercially reasonable timeframe.  The foregoing shall be the sole remedy to Customer in the event that Customer discovers a defect in a Product during a warranty period.

3. License for Subscription Services.

Subject to the terms and conditions of this Agreement, Nimbl will provide Customer the subscription set forth in the Invoice for the subscription term.  Customer may use the Services solely for Customer’s own internal business operations (not for the benefit of any other person or entity) during the subscription term, provided Customer has paid and continues to pay the subscription fees. Nimbl may terminate provision of the Services at the end of a subscription term unless Customer continues to pay subscription fees for the Services. Subscription fees are nonrefundable.  Nimbl may audit its systems to confirm Customer’s authorized use of the Services. Customer may not sublicense, rent, lease or timeshare the Services or provide subscription services for the Services or permit others to do so. Subject to the terms of this Agreement, Customer may allow its agents and independent contractors to use the Services solely for the benefit of Customer; provided, however, Customer remains responsible for any breach of this Agreement. Any other use of the Services by any other entity is forbidden and a violation of this Agreement.

4. Username and Password

(a) CUSTOMER AGREES THAT CUSTOMER IS THE ONLY PARTY AUTHORIZED, AND SHALL NOT TO PERMIT OTHERS, TO ACCESS THE SERVICES USING CUSTOMER’S USERNAME OR PASSWORD; (b) Customer is responsible for securing the privacy of its username and password and assumes all liability from use of the Services through Customer’s username or password; and (c) if Customer loses or believes Customer’s username or password may be compromised, Customer will promptly contact Nimbl.

5. Payment; Pricing.

Products and Services will not be provided until payment has been received by Nimbl as specified in the Invoice.  Nimbl will submit invoices to Customer via email or as otherwise requested by Customer and agreed upon by Nimbl.  Invoices shall be paid within ten (10) days of receipt.  If Customer fails to pay the invoice in a timely manner, Nimbl reserves the right to charge, and Customer shall pay, interest on the outstanding balance at the rate of one and one-half percent (1.5%) per month.  Prices set forth in the Invoice do not include any Taxes.  Customer shall pay itemized Taxes for applicable Products or Services, unless Customer provides a valid tax exemption certificate.  Nimbl reserves the right to increase its prices for the Products and Services upon providing the Customer with thirty (30) days’ prior notice of such increase.

6. Term

The term of this Agreement shall begin on the date that Customer accepts the Invoice and expires one year later (“Term”).  This Agreement shall automatically renew for additional terms of one year each, unless either party provides the other party with thirty (30) days prior written notice of its election to not renew the Agreement. Individual services subscribed may have different terms than the Term of this Agreement.

7. Intellectual Property.

The Services and all related Intellectual Property Rights are the exclusive property of Nimbl. All right, title and interest in and to the Services, any modifications, translations, or derivatives thereof, even if unauthorized, and all applicable rights in patents, copyrights, trade secrets, trademarks and all Intellectual Property Rights in the Services remain exclusively with Nimbl. The Services are valuable, proprietary, and unique, and Customer agrees to be bound by and observe the proprietary nature of the Services. The Services contain material that is protected by patent, copyright and trade secret law, and by international treaty provisions. Customer may only use the Services as expressly permitted under this Agreement. Customer may only access the Services for individual use and may not reproduce, publish, distribute, sell, rent, sublicense, lease, transfer or assign, alter, translate, modify, or adapt, decompile, disassemble, or otherwise reverse-engineer any of the Services in any manner whatsoever. Any breach of this Section 7 would cause Nimbl irreparable harm, (ii) the remedies at law for breach of any covenant contained in this Agreement may be inadequate and (iii) Nimbl shall be entitled to injunctive relief for any breach of this Agreement. Nothing contained herein shall be construed as limiting Nimbl’s right to any other remedies at law, including the recovery of damages.

8. Work for Hire.

If any Background IP is utilized or embedded in any Products or Services provided in this Agreement, Nimbl hereby grants to Customer and its affiliates an irrevocable, nonexclusive, worldwide, paid-up license to use, practice, execute, display, perform, operate, and personalize such Background IP during the term of this Agreement.  Customer shall not reverse-engineer, sell, distribute, or use Nimbl’s Background IP for any reason whatsoever, other than to the extent utilized/embedded in the Products or Services.  

9. Representations and Warranties; Disclaimer.

Each party represents and warrants that (a) they have the legal right, authority, and ability to enter into and fulfill their obligations under the Agreement; and (b) by entering into this Agreement and using the Services, the party is not breaching obligations to any third party.  The Customer represents and warrants that (a) Customer possesses the legal right to use any information, materials, or media of whatever kind and description which Customer places on the Services; (b) all information and data submitted by Customer to Nimbl or provided through the Services will be true and correct; and (c) Customer will not use the Services for any purpose that is unlawful or prohibited by this Agreement.

Nimbl’s performance under this Agreement will be of professional quality and performed consistent with generally accepted industry standards.  Nimbl owns or has properly licensed all Products and Services provided by it under this Agreement, has and will retain all necessary rights to grant the licenses in the Agreement, and has no knowledge of any unresolved claims, demands, or pending litigation alleging that the Products or Services infringe or misappropriate any Intellectual Property Rights of any third party. No advice or information, whether oral or written, obtained by Customer from Nimbl or through the Services will create any warranty not expressly stated herein.

Additionally, (a) THE SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” WITHOUT WARRANTIES OF ANY KIND; (b) To the maximum extent permitted by applicable law NIMBL HEREBY DISCLAIMS ALL conditions, representations, and WARRANTIES, EXPRESS OR IMPLIED, statutory or otherwise, INCLUDING, WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT of third-party rights. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NIMBL DOES NOT MAKE ANY WARRANTIES REGARDING: (i) AVAILABILITY OF THE SERVICES AT ANY PARTICULAR TIME; (ii) ACCURACY OF ANY CONTENT PROVIDED THROUGH THE SERVICES; (iii) LACK OF VIRUSES OR (iv) THAT THE SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY; (c) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SPECIAL DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF OR UNAUTHORIZED ACCESS TO INFORMATION, OR THE LIKE, EVEN IN THE EVENT OF FAULT, TORT, BREACH OF CONTRACT OR BREACH OF WARRANTY, AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (d) IN NO EVENT WILL NIMBL BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE TOTAL DOLLAR AMOUNT ACTUALLY RECEIVED BY NIMBL FROM CUSTOMER HEREUNDER DURING THE YEAR PRIOR TO CUSTOMER’S CLAIM.

No Guarantees as to Result.

Customer acknowledges that Nimbl has not made and does not make any promises or guarantees as to the results or outcome of submission to the applicable Regulatory Authority(ies), including without limitation the time or expense necessary to accomplish same.  Nothing contained in any written agreement or in any statements made to you by Nimbl is to be construed as a promise or guarantee about any results or outcomes.  Any comments about probable results or outcomes, whether made in the past or future, are expressions of opinion only, based on facts known at that time.

In addition, and without limiting the foregoing, Nimbl, its affiliates, licensors, officers, directors, managers, agents and employees do not warrant that the content of the Product or Deliverables will be accurate, reliable or correct or that the Services will meet Customer’s requirements. 

Nimbl shall not be held liable for any perceived or actual damages arising from the use of the Services.

10. Insurance. 

Nimbl will maintain insurance against general liability and property damage and workers’ compensation insurance as required by law including employer’s liability coverage.

11. Compliance with Laws.

In connection with the Agreement, Nimbl and its Personnel will comply with all applicable laws and regulations, including any applicable anti-bribery, conflict minerals laws, employment laws, import/export laws, materials disposal laws, and Data Protection Laws.

12. Customer Data.

Customer Data shall mean data or information provided to or uploaded by Customer or its authorized users in connection with Services.  The Customer authorizes Nimbl to use and display Customer Data in anonymized form, in order to develop, maintain, and improve the services and products of Nimbl, to tailor products and services to Customer’s needs, for market research purposes during the subscription term and thereafter, and to aggregate Customer Data with similar data from other customers in a manner that does not identify Customer or include any personal data, to further develop and provide products or services to Nimbl’s customers.  Nimbl may access Customer Data to the extent necessary to perform the Services.  Customer warrants that no Customer Data will contain infringing, obscene, threatening, or otherwise lawful or tortious material, including material that violates privacy rights or which disrupt the performance of the Services or the data contained therein.

13. Customer Conduct.

Customer shall not (a) use any device, software, routine or the like to interfere or attempt to interfere with any functionality of the Services; (b) take any action that imposes an unreasonable or disproportionately large load on the site infrastructure; (c) access the Services by any means other than through the interface that is provided by Nimbl or access or attempt to access any of the Services to which Customer’s access is not authorized; or (d) reverse engineer, reverse assemble or otherwise attempt to discover any source code relating the Services.

14. Confidentiality.

The parties agree that “Confidential Information” means any information disclosed by the disclosing party to the receiving party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, trade secrets, technical data, know-how, methodologies, ideas and concepts, inventions, prototypes, samples, equipment, customer lists, information relating to Customer’s contracts or proposals, pricing, resumes, labor categories, business strategies, employee names and job responsibilities, project plans & details, training materials, technology, software, computer files, techniques, procedures, policies, manuals, processes, specifications, proposals, business plans, research, product plans, products, services, staffing, vendor pricing, vendor lists, promotion and marketing activities, finances, and business affairs or other customer information not known to the general public), which is designated as “Confidential”, “Proprietary” or some similar designation, or is the type of information which should be reasonably be recognized as Confidential or Proprietary.  For purposes of clarity, the terms of this Agreement, any amendment, and any Invoice(s) are Confidential Information.  Confidential Information shall not, however, include any information which (i) is already publicly known and generally available in the public domain at the time of disclosure by the disclosing party, (ii) becomes publicly known and generally available after disclosure by the disclosing party to the receiving party through no act or omission of the receiving party, (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as evidenced by the receiving party’s contemporaneous written records, (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality, or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information. 

All Confidential Information disclosed by either party to the other pursuant to this Agreement is and will be disclosed to it in confidence solely for its use in its performance hereunder. Each party will safeguard and keep confidential all Confidential Information of the other and will return the other’s Confidential Information upon request, except to the extent further retention of such Confidential Information is necessary for a party to perform any post-termination obligations or exercise any post-termination rights under this Agreement. Each party agrees to safeguard the other’s Confidential Information using measures that are equal to the standard of performance used by the receiving Party to safeguard its own Confidential Information of comparable value, but in no event less than reasonable care.  Each party agrees to keep such information secret and confidential indefinitely or until such time the disclosing party makes the Confidential Information publicly known, and not to disclose it to any other person or entity or use it during the term of this Agreement or after its termination except in carrying out its obligations hereunder.  Notwithstanding the foregoing, a party or its legal representatives may disclose Confidential Information in response to obligations imposed by law or order of a court or regulatory body; provided, however, that party or its legal representatives must promptly notify the other party (unless prohibited by such law or order) of such request or requirement so that the other party may seek an appropriate protective order or other appropriate relief and/or waive compliance with provisions of this Agreement, and if, in the absence of such relief or waiver hereunder, a party, in the opinion of its counsel, is legally compelled to disclose Confidential Information, then that party may disclose so much of the Confidential Information as is, according to such opinion, required, without liability hereunder.

In the event of a breach or threatened breach by either party of this Section, it is agreed that the non-breaching party shall be entitled to (1) injunctive relief in whole or in part and from time-to-time, and (2) all costs and expenses, including reasonable attorneys’ fees, incurred in the enforcement of the provisions of this Section.  Each party further acknowledges that remedies at law for any breach or threatened breach of the provisions of this Section will be inadequate and, accordingly, that the non-breaching party shall, in addition to all other available remedies (including, without limitation, seeking such monetary damages as can be shown to have been sustained by reason of such breach), be entitled to injunctive or other equitable relief without being required to post bond or other security of any character, and without having to prove or otherwise establish the inadequacy of available remedies at law for the breach or threatened breach hereof.  Each party further agrees that it shall not plead or otherwise defend any claim of breach or threatened breach hereof on grounds of adequate remedy at law or any element thereof, in an action by the non-breaching party against the breaching party for injunctive relief or for specific performance of any of the obligations pursuant to this Section.

15. Defense and Indemnity.

Nimbl will defend and indemnify Customer, its affiliates, successors, and assigns, and their respective officers, directors, managers,  employees, and agents from and against any and all claims, actions, demands, costs, losses liabilities, penalties, damages and expenses (including reasonable legal and accounting fees) to the extent arising from: (A) Nimbl’s willful misconduct or fraud: (B) any breach of Section 14 (Confidentiality); or (C) any allegations that use, possession, or sale of the Products or Services violates or infringes a third party’s rights, including Intellectual Property Rights.

If an injunction preventing continued use of any Products or Services is threatened or granted, Nimbl will do the following at its sole expense: (a) procure the right to continue providing the Products or Services in compliance with the Agreement; (b) modify the Products or Services to make them non-infringing without materially reducing their functionality; or (c) replace the Products or Services with a non-infringing, functionally equivalent alternative.

Customer agrees to indemnify, defend and hold harmless Nimbl, its affiliates, successors, and assigns and their respective officers, directors, managers, employees, and agents (the “Indemnified Parties”) from and against any and all claims, actions, demands, costs, losses liabilities, penalties, damages and expenses (including reasonable legal and accounting fees) (collectively, the “Claims”) relating to or arising from Customer’s use of the Services, or breach (or alleged breach) of Customer’s representations, warranties and covenants under this Agreement.

Either party’s failure to act with respect to a breach by the other party does not waive the non-breaching party’s right to act with respect to subsequent or similar breaches;

16. Limitation of Liability.

NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATING TO THE AGREEMENT FOR (A) THE OTHER PARTY’S LOST REVENUES OR PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES; (B) INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL LOSSES;  (C) EXEMPLARY OR PUNITIVE DAMAGES; (D) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER; (E) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY SERVICES.  FOR PURPOSES OF THIS SECTION, “LIABILITY” MEANS ANY LIABILITY, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE (WHETHER OR NOT FORESEEABLE OR CONTEMPLATED BY THE PARTIES). IN NO EVENT SHALL NIMBL, AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, CO-BRANDERS, PARTNERS, SUPPLIERS OR EMPLOYEES BE LIABLE FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT PAID BY CUSTOMER TO NIMBL IN THE PRECEDING 12 MONTHS, OR THE TERM OF THIS AGREEMENT, WHICHEVER IS SHORTER.

The Agreement, however, does not limit either party’s LIABILITY for fraud or fraudulent misrepresentation, breach of Section 14 (Confidentiality), infringement of the other party’s Intellectual Property Rights, its obligations under Section 15 (Defense and Indemnity), or matters for which liability cannot be excluded or limited under applicable law.

17. Termination.

Either party may terminate the Agreement immediately for breach of Section 14 (Confidentiality).  Either party may terminate the Agreement upon written notice if the other party materially breaches any other provision of the Agreement and fails to remedy that breach within thirty (30) days after written notice specifying such material breach.  Either party may suspend performance or terminate the Agreement if an applicable law or an applicable government or court order prohibits such performance.  Termination of this Agreement cancels the Invoice and terminates all licenses that Nimbl granted under the Agreement.  Sections 1, 3, 5, 7, 14, 15, 16, and 18 will survive any termination of the Agreement.  Customer shall pay for any Products or Services provided through the date of termination.  In the case of subscription services, the termination of this Agreement will not occur until the end of the subscription period, during which Nimbl shall continue to provide the subscription services and Customer shall continue to pay the subscription fees through the end of the subscription period. 

18. Miscellaneous.

A. Force Majeure.  Neither party will be liable for, and is excused from, any failure or delay in performance to the extent caused by circumstances beyond its reasonable control including, but not limited to, acts of God, civil or military authority, war or terrorism.

B. Delegation and Subcontracting.  Nimbl may subcontract its obligations under the Agreement without Customer’s written consent.  Nimbl shall remain liable for all subcontracted obligations and all acts or omissions of its subcontractors.

C. Background Checks. Nimbl will perform standard background checks as a part of the new employee hiring process to confirm at time of hire that such employee is not restricted from performing Services by an applicable government authority.   

D. Assignment.  Nimbl may not assign or transfer its rights or obligations under this Agreement, and any attempt to do so is void, except that Nimbl may transfer its rights and obligations under this Agreement to any successor in a merger of Nimbl or to a buyer of substantially all of Nimbl’s assets if the buyer assumes the rights and obligations of Nimbl under this Agreement.  Customer may only assign or transfer its rights and obligations under this Agreement to an affiliate or a successor entity upon a merger of the Customer and such successor entity or upon Customer’s sale of substantially all of its assets to a third party if such third party consents to the assumption of the rights and obligations hereunder.

E. Governing Law.  This Agreement and all claims arising out of or relating to the Agreement will be governed by Maryland law and will be litigated exclusively in the federal or state courts of Montgomery County, Maryland or in the case of federal court, Prince George’s County, Maryland; the parties consent to personal jurisdiction in those courts.  

F. No Agency.  The Agreement or use of the Services does not create any agency, partnership or joint venture between the parties, nor does it create the relationship of employer or employee between Nimbl and Customer or any of Customer’s personnel.

G. Severability.  If any part of the Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remaining provisions of the Agreement will remain in full force and effect.

H. No Waiver.  Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under the Agreement.

I. No Third-Party Beneficiaries.  The Agreement does not confer any benefits on any third party.

J. Entire Agreement.  The Agreement states all the terms agreed between the parties and supersedes all prior and/or contemporaneous oral and written agreements or understandings between the parties relating to its subject matter.  In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty, except those expressly stated in the Agreement.

K. Modification; Changes to these Terms.  Nimbl reserves the right to amend or otherwise modify the terms set forth in this Agreement at any time. In such cases, Nimbl will publish any changes in the Terms and Conditions section of its website, which can be found at https://gonimbl.com/terms-of-service/.
The continued use of the Services by Customer will signify the Customer’s acceptance of the revised Agreement. If Customer does not wish to be bound by the changes, Customer must stop using the Services. Failure to accept the revised Agreement, may entitle either party to terminate the Agreement.

L. Notices.  All notices of termination or breach will be in English, in writing, and addressed to either the other party’s principal business address as indicated in the introductory paragraph hereof or via email provided to the other party’s primary contact person.  Notices will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).
Nimbl’s Primary Contact Email: info@gonimbl.com

M. Informa Terms of Service.  As a further term and condition of this Agreement, you shall comply with the terms of service of our integration partner, Informa (AC-U-KWIK), which can be reviewed at https://engage-public.flywheelsites.com/terms-of-service/aviation-group/ and which shall be incorporated herein by reference.