Last Updated: May 27, 2026
Effective Date: May 27, 2026
These Terms of Service (this "Agreement") are a binding contract between you and Nimble Energy, Inc., a Delaware corporation with offices at 148 Coley Ct, Pittsboro, NC 27312 ("Nimble Energy," "Company," "we," "us," or "our"). This Agreement is organized in three parts:
• Part 1 — Website Terms of Use applies to all visitors and users of nimble-energy.com (the "Website"), our online forms, our Savings Calculator, and our website chat widget.
• Part 2 — Platform Subscription Agreement applies only to customers who have subscribed to the Nimble Energy™ Empower platform for building operations and utility data analytics and management (the "Platform") through an Order.
• Part 3 — General Provisions (including Dispute Resolution, Arbitration, and Class Action Waiver) applies to all users.
PLEASE READ SECTION 19 CAREFULLY. IT REQUIRES YOU TO RESOLVE DISPUTES WITH US THROUGH BINDING INDIVIDUAL ARBITRATION AND CONTAINS A CLASS ACTION WAIVER. IT ALSO INCLUDES A 30-DAY OPT-OUT PROCEDURE.
Table of Contents
18. Subscription-Related Provisions: Confidentiality, Data Privacy, Fees, IP, Term............. 1
PART 3 — GENERAL PROVISIONS (APPLICABLE TO ALL USERS)............................................. 1
PART 1 — WEBSITE TERMS OF USE
1. Acceptance
By accessing or using the Website, our online forms, the Savings Calculator, our chat widget, or any other features of the Website (collectively with the Website, the "Services"), or by submitting information to us through any of the foregoing, you acknowledge that you have read, understood, and agree to be bound by this Agreement and our Privacy Policy. If you do not agree, do not use the Services.
If you are accepting this Agreement on behalf of an organization, you represent and warrant that you have authority to bind that organization, and "you" refers to that organization.
2. Eligibility
The Services are not directed to children under 13. By using the Services, you represent that you are at least 18 years old (or the age of majority in your jurisdiction) or are using the Services with the supervision of a parent or legal guardian who has accepted this Agreement. If you are using the Services on behalf of a business or other legal entity, you represent that you are authorized to do so.
3. Use of the Website
We grant you a limited, non-exclusive, non-transferable, revocable license to access and use the Website for your personal or internal business purposes, in each case in accordance with this Agreement and applicable law. All other rights are reserved.
You may submit information to us through forms, the Savings Calculator, our chat widget, email, telephone, or SMS. Information you submit may include identifiers and contact information, business information, and facility or utility data. Our handling of that information is described in our Privacy Policy.
4. Prohibited Conduct
You agree not to, and not to permit any third party to:
(a) use the Services in violation of any applicable law, regulation, or third-party right;
(b) impersonate any person or entity or misrepresent your affiliation with any person or entity;
(c) interfere with, disrupt, or attempt to gain unauthorized access to the Services, our servers, our networks, or any user account;
(d) introduce viruses, worms, malware, or other harmful code into the Services;
(e) use any robot, spider, scraper, or other automated means to access the Services for any purpose without our prior written consent, except for search-engine indexing of public pages;
(f) reverse engineer, decompile, disassemble, or attempt to derive the source code of any portion of the Services;
(g) copy, modify, distribute, sell, lease, or create derivative works of any portion of the Services or content available on the Services, except as expressly permitted by this Agreement;
(h) remove, obscure, or alter any proprietary notices on the Services;
(i) use the Services to send unsolicited communications, advertisements, or promotional materials;
(j) collect or harvest information about other users without their consent; or
(k) use the Services in a manner that could damage, disable, overburden, or impair the Services.
5. Account Registration
If we make account features available through the Services and you create an account, you agree to provide accurate, current, and complete information; to maintain and promptly update that information; to maintain the confidentiality of your credentials; and to be responsible for all activity that occurs under your account. Notify us promptly at info@nimble-energy.com of any unauthorized use of your account.
6. Intellectual Property — Website Content
The Website and all content, software, designs, graphics, text, images, logos, trademarks, service marks, and other materials made available through the Website (the "Website Content") are owned by Nimble Energy or its licensors and are protected by U.S. and international copyright, trademark, and other intellectual property laws. Except for the limited license in Section 3, no rights are granted by implication, estoppel, or otherwise.
"Nimble Energy" and the Nimble Energy logo are trademarks of Nimble Energy, Inc. Other names, logos, and marks are the property of their respective owners.
7. User Submissions and Feedback
If you submit comments, ideas, suggestions, questions, feedback, testimonials, energy-usage data, or other materials to us through the Services or otherwise (collectively, "Submissions"), you grant Nimble Energy a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, sublicensable, transferable license to use, reproduce, modify, adapt, publish, translate, distribute, perform, and display such Submissions in connection with the Services and our business, including for marketing and improvement of the Services, provided that we will use Submissions consistent with our Privacy Policy and applicable law. You represent that you own or have the rights necessary to grant the foregoing license and that your Submissions do not violate the rights of any third party or applicable law.
8. Third-Party Services, Embeds, and Links
The Services may contain links to third-party websites, services, or content (for example, LinkedIn, YouTube, embedded forms or chat widgets provided by third-party platforms such as GoHighLevel / LeadConnector). Those third parties are not under our control, and we are not responsible for their content, products, services, practices, or policies. Your interactions with third parties are between you and the third party, and you should review their terms and privacy policies before engaging with them.
9. Email Communications
By providing your email address, you agree to receive transactional emails (such as responses to inquiries, account notifications, and service-related messages). You may also receive marketing emails if you opt in or if otherwise permitted by law. You can opt out of marketing emails at any time using the unsubscribe link in any marketing email or by emailing info@nimble-energy.com.
10. SMS / Text Messaging Terms
If you provide your mobile number through a form or other Service and check the explicit SMS opt-in box (or otherwise expressly consent to receive text messages), you agree to receive recurring SMS messages from Nimble Energy at the mobile number provided, including responses to inquiries, appointment confirmations, reminders, and promotional offers.
• Message frequency varies. Message and data rates may apply.
• Reply STOP to any message to unsubscribe at any time. Reply HELP for help, or contact info@nimble-energy.com.
• Carriers (e.g., AT&T, Verizon, T-Mobile) are not liable for delayed or undelivered messages.
• We comply with the Telephone Consumer Protection Act (TCPA), the CAN-SPAM Act, and CTIA guidelines, and applicable carrier requirements.
• Mobile information and SMS opt-in data are not shared with third parties or affiliates for marketing or promotional purposes.
• Your consent to SMS is documented and may be revoked at any time by replying STOP or contacting us.
11. Privacy
Our collection, use, and sharing of personal information is described in our Privacy Policy at https://nimble-energy.com/privacy-policy. By using the Services, you acknowledge that you have read the Privacy Policy.
12. Copyright / DMCA Notice
If you believe content available on the Services infringes your copyright, you may submit a notice of claimed infringement to our designated agent under the Digital Millennium Copyright Act (DMCA). The notice must include: (a) a physical or electronic signature of a person authorized to act on behalf of the copyright owner; (b) identification of the copyrighted work claimed to be infringed; (c) identification of the allegedly infringing material and information reasonably sufficient to locate it; (d) your contact information; (e) a statement that you have a good-faith belief that the use is not authorized; and (f) a statement, under penalty of perjury, that the information in the notice is accurate and that you are authorized to act on behalf of the owner.
Send DMCA notices to: DMCA Agent, Nimble Energy, Inc., 148 Coley Ct, Pittsboro, NC 27312 or info@nimble-energy.com (subject line "DMCA Notice").
PART 2 — PLATFORM SUBSCRIPTION AGREEMENT
Sections 13 through 18 apply only if you have subscribed to the Nimble Energy™ Empower platform through an Order or by checking or clicking an "Agree," "I Consent," or similar button. If you are only a visitor to the Website, Sections 13 through 18 do not apply to you.
Subject to the terms of this Agreement, Nimble Energy provides subscriptions to: (1) the Nimble Energy™ Empower platform for building operations and utility data analytics and management (the "Platform"); (2) the Website and integrations with certain third-party services, data sets, databases, websites, or platforms ("Eligible Third-Party Services") that we may choose to offer from time to time (the "Integrations" and, together with the Website and the Platform, the "Software"), through which you may access and use the Platform; and (3) the Services described below. In Part 2 only, "you" refers to the business or other legal entity accepting this Agreement as part of your procurement of a subscription to our Software and Services.
ACCEPTANCE. YOU SHOULD READ THIS AGREEMENT CAREFULLY FOR THE TERMS AND CONDITIONS THAT GOVERN YOUR ACCESS TO AND USE OF THE SOFTWARE AND YOUR RECEIPT OF THE SERVICES. BY ACCESSING AND/OR USING THE SOFTWARE AND OUR RELATED SERVICES, BY EXECUTING AN ORDER, OR BY CHECKING OR CLICKING THE "AGREE," "I CONSENT," OR SIMILAR BUTTON OR BOX IF AND WHEN THIS OPTION IS PRESENTED TO YOU, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) AGREE TO ACCEPT THIS AGREEMENT; AND (C) AGREE THAT YOU ARE LEGALLY BOUND BY (AND THAT YOU WILL ADHERE TO) ALL TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. THE INDIVIDUAL EXECUTING THE ORDER AND/OR REGISTERING TO USE THE PLATFORM ON YOUR BEHALF REPRESENTS AND WARRANTS TO US THAT SUCH INDIVIDUAL IS FULLY AND DULY AUTHORIZED TO AGREE TO BE BOUND BY THIS AGREEMENT ON YOUR BEHALF. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SOFTWARE OR OUR RELATED SERVICES.
13. Right to Access and Restrictions
a. Platform Authorization. We authorize you, your Affiliates, and your Authorized Users, during the Term, and on a non-exclusive and non-transferable (except as described in Section 25 (Assignment)) basis, to access and use the Platform on a "software as a service" basis through the Website and/or through any provided Integrations, in each case provided that such access and use is (i) by and through your Authorized Users only and (ii) solely for the Permitted Use. This authorization also permits you, your Affiliates, and your Authorized Users to access and use the Documentation during the Term in support of your Permitted Use of the Software.
b. Limitations and Restrictions. You must not, and you must not permit any other person or entity (including your Affiliates and Authorized Users) to, access or use the Software except as we have specifically authorized in this Agreement. Without limiting the preceding sentence, you, your Affiliates, and your Authorized Users must not:
(i) copy, modify, adapt, translate, or create derivative works or improvements of the Software;
(ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or any features or functionality of the Software to any other person or entity for any reason, including by making the Software available through any time-sharing, service bureau, or software-as-a-service arrangement;
(iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive, gain access to, or discover the source code of the Software or the underlying structure, ideas, know-how, algorithms, or methodology relevant to the Software;
(iv) input, upload, transmit, or otherwise provide to or through the Software any information or materials that are unlawful or that contain, transmit, or activate any Harmful Code;
(v) bypass, breach, or disable any security device, copy control, digital rights management tool, or other protection used by the Software;
(vi) attempt to gain unauthorized access to, damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner (A) the Software, (B) the server on which the Software is hosted and stored, (C) any server, computer, or database connected to the Software, or (D) our ability to provide our Software or services to any other person or entity;
(vii) access or use the Software in any way that infringes, misappropriates, or otherwise violates any intellectual property right, privacy right, or other right of any third party, or that violates any applicable law or regulation;
(viii) access or use the Software for purposes of (A) developing, marketing, distributing, licensing, or selling any product or service that may compete with the Software, or (B) disclosing to our competitors, for any purpose, otherwise non-public information about the Software;
(ix) access or use the Software contrary to any additional limitations or restrictions that may be set forth in your Order; or
(x) knowingly aid or assist any Affiliate, Authorized User, or other person or entity in taking any of the actions prohibited by this Section 13.b.
c. Responsibility for Affiliates and Authorized Users. You will ensure your Affiliates' and Authorized Users' compliance with this Agreement and will be responsible and liable to us for any act or omission of an Affiliate or Authorized User (or any other employee, contractor, or agent under your control or direction or acting on your behalf) that would be a breach or violation of this Agreement had you performed the act or omission yourself.
14. Our Services
a. Services — Generally. We will provide to you the following services (the "Services") during the Term: (i) the hosting, management, and back-end operation of the Platform to make the same available for remote electronic access and use by you, your Affiliates, and your Authorized Users through the Website and through any provided Integrations in accordance with the authorizations granted above; (ii) the Support Services described in Section 15 below; (iii) the Setup Services described in Section 16 below; and (iv) any other Services we expressly agree to provide in your Order.
b. Changes to the Software. We may make any changes to the Software (including the design, look and feel, functionality, content, material, information, and/or services provided via the Software) that we deem necessary or useful to improve the Software or for any other reason; provided that we will not during the Term make any changes to the Software that will materially adversely affect the features and functionality of the Software that you use. Such changes may include upgrades, bug fixes, patches, error corrections, modifications, enhancements, improvements, and/or new features (collectively, "Updates"). All Updates shall be deemed a part of the Software governed by this Agreement. If we make a change to the Software that has a material adverse effect on your operations, then you may notify us in writing of the material adverse effect and may, immediately upon written notice to us, terminate this Agreement if we do not cure this condition within 30 days following receipt of your notice.
c. Subcontractors. You understand and agree that we may, in our discretion, engage subcontractors to aid us in providing the Software and performing our Services under this Agreement, and we will remain liable to you for any act or omission by such subcontractors that would be a breach or violation of this Agreement. For example, we may use Amazon Web Services, Microsoft Azure, Google Cloud Platform, and/or such other reputable provider that implements and maintains commercially reasonable security programs, policies, procedures, controls, and technologies (the "Hosting Services Provider") for cloud-based infrastructure and hosting and storage services for the Platform, and such Hosting Services Provider will host and store certain portions of Your Data that is processed through the Platform. You hereby specifically approve and consent to our use of a Hosting Services Provider as described. Notwithstanding anything to the contrary in this Agreement, you further agree that we cannot guarantee or ensure the performance of any Hosting Services Provider to the terms of this Agreement, and remediation of a breach by a Hosting Services Provider is limited to the remedies specified in the Hosting Services Provider's standard service agreement.
d. Suspension of Software Access. We may suspend or deny your (and/or one or more of your Affiliates' or Authorized Users') access to or use of all or any part of the Software and suspend our performance of our Services, without any liability to you or others, if (i) we are required to do so by law or court order; (ii) your, your Affiliate's, or your Authorized User's use of the Software presents an imminent and highly material threat to system security such that we reasonably believe that suspension or denial of access is necessary to ensure compliance with our data security and/or confidentiality obligations; or (iii) you have, your Affiliate has, or your Authorized User (or any other employee, contractor, or agent under your control or direction or acting on your behalf) has (A) accessed or used our Services or Software in violation of Section 13.b and you have failed to cure such violation within 3 days after we provide written notice to you, (B) been involved in any fraudulent or unlawful activities relating to or in connection with our Services or Software, or (C) otherwise failed to comply with this Agreement and you have failed to cure such breach within 10 days after we provide written notice. Unless we have exercised our right to terminate this Agreement, we will promptly restore access to the Software and resume performance of our Services as soon as the applicable legal requirement or court order is lifted or the applicable breach or violation is cured. Our remedies in this Section are in addition to, and not in lieu of, our termination rights or any other rights or remedies under this Agreement, at law, or in equity.
e. "Free Trial" and "Freemium" Access and Use. Notwithstanding anything to the contrary in this Agreement, if and to the extent your Order indicates that you will be obtaining a subscription to the Software on a "free trial," "freemium," or similar basis or otherwise without payment of subscription Fees for the Software (a "Free Trial Order"), then you acknowledge and agree that UNDER AND IN CONNECTION WITH ANY FREE TRIAL ORDER ALL SERVICES AND COMPANY IP (INCLUDING THE SOFTWARE) ARE PROVIDED TO YOU "AS IS" AND "AS AVAILABLE" WITHOUT ANY SUPPORT SERVICES OR ANY WARRANTY OR INDEMNITY OF ANY KIND FROM US, EXPRESS OR IMPLIED, AND THE AGGREGATE LIABILITY OF THE COMPANY UNDER OR IN CONNECTION WITH ANY FREE TRIAL ORDERS SHALL NOT EXCEED $1,000 UNDER ANY CIRCUMSTANCES. Either party may cancel a Free Trial Order at any time immediately upon written notice for any reason or no reason, and upon such termination your right to access and use the Software will terminate and you must immediately cease accessing and using the Software.
15. Support Services and Platform Availability
a. Support Services — Hours. During the Term we will provide customer support services to you and your Authorized Users via email, telephone, and other channels that we may make available, during our standard support hours (8:00 a.m. to 6:00 p.m. Eastern Time, Monday through Friday, excluding U.S. federal holidays) ("Support Services").
b. Scope. Support Services include: (i) access to knowledge-base content, FAQs, training videos, and community forums hosted and made available generally to customers by us through the Website or otherwise; (ii) technical and operational assistance for the use of the Software, including responses to general, short-duration questions about documented features and functionality, management of user accounts for Authorized Users, assistance with the Documentation, and interpretation of error or warning messages; (iii) good-faith attempts to respond to and resolve any reproducible failure of the Software to perform in accordance with the Documentation (each, an "Error") on a reasonably prompt basis in light of the nature and severity of the Error, our other then-current support and maintenance priorities, and our available resources; and (iv) periodically providing to you all Updates we make generally available to customers free of additional charge.
c. Exclusions. Support Services do not include: (1) support for software or hardware that is not part of the Software (including support for any part of your equipment, products, or technology infrastructure, or for any part of any Eligible Third-Party Services with which the Platform may integrate but that are separate and apart from the Platform itself); (2) on-site dispatch of our personnel; (3) assistance with any First-Level Technical Support issues that are the responsibility of your User Contacts; (4) formal, comprehensive training of Authorized Users (or any other person or entity) on use of the Software; (5) on-site or remote support to configure or customize the Software for you; or (6) performance of any other professional, implementation, onboarding, configuration, customization, consulting, or advisory services (provided that items (4) through (6) may be separately provided Services if expressly agreed to in your Order).
d. Your Responsibilities. You must provide all information and assistance that we reasonably request in connection with providing Support Services. You will identify one or more system administrators or other employees (each, a "User Contact") trained in use of the Software who will provide First-Level Technical Support to your Authorized Users. "First-Level Technical Support" involves assisting Authorized Users with basic help and general FAQs concerning Software usage, understanding Software features and functionality, and verifying Software Errors. We reserve the right to charge at an hourly rate (on a time-and-materials basis) for support services provided (x) outside of our normal support hours, or (y) in connection with a request we reasonably determine is outside the scope of the Support Services described above, provided that we will provide you with a quote and obtain your approval before incurring any such charges.
e. Platform Availability. Provided that you, your Affiliates, and your Authorized Users comply with this Agreement, during the Term we will make the Platform Available for access and use over the Internet through the Website 24 hours a day, seven days a week, with ninety-nine and one-half percent (99.5%) Availability (calculated on a minutes-per-month basis), excluding un-Availability as a result of any of the Exceptions described below (the "Availability Requirement"). The Platform is "Available" if you are able to log in to the Platform and access Your Data. For purposes of calculating the Availability Requirement, the following are "Exceptions," and the Platform will not be considered un-Available due to any failure attributable, in whole or in part, to: (A) access to or use of the Software not in accordance with this Agreement and the Documentation; (B) your, your Affiliate's, or your Authorized User's Internet connectivity; (C) any Force Majeure Event; (D) any failure, interruption, outage, or other problem with any software, hardware, system, network, or other technology infrastructure that was not provided by us or is not part of our systems (including any problem with the Hosting Services Provider or any Eligible Third-Party Services); (E) scheduled downtime for routine maintenance of the Software (not to exceed ten hours per month) that occurs between 1:30 a.m. and 3:30 a.m. Eastern Time on weekdays and between noon and 4:00 p.m. Eastern Time on Saturdays; or (F) periods of time in which the parties have mutually agreed that unavailability is necessary (such as time for implementation of changes requested by you).
If we fail to meet the Availability Requirement, we will credit you 10% of the Monthly Software Subscription Fee for each full percentage point by which the warranted Availability is missed in a given month, to be applied against the next payment due from you or refunded if outstanding upon termination or expiration of this Agreement; provided that the amount of such credit accumulating in any month shall not exceed the Monthly Software Subscription Fee; provided further that you have submitted to us a written request for credit within ninety (90) days of the end of the calendar month in which the Availability failure occurred. The "Monthly Software Subscription Fee" means (A) the recurring monthly Software subscription fee under the applicable Order for the impacted Software, if the Software subscription fees are billed on a monthly basis under the Order, (B) one third (1/3) of the then-current recurring quarterly Software subscription fee under the applicable Order, if billed quarterly in advance, or (C) one twelfth (1/12) of the then-current recurring annual Software subscription fee, if billed annually in advance. If the maximum credit is reached in any two consecutive months, you may terminate this Agreement upon written notice given within ninety (90) days of the end of the second such month and receive a Refund of Fees. THE REMEDIES SET FORTH IN THIS SECTION 15.e ARE YOUR EXCLUSIVE REMEDIES, AND OUR SOLE OBLIGATION AND LIABILITY TO YOU, FOR ANY FAILURE TO MEET THE ABOVE-DESCRIBED AVAILABILITY REQUIREMENT OR OTHER INTERRUPTION OR UNAVAILABILITY OF THE SOFTWARE DURING THE TERM.
16. Setup Services
Provided that you, your Affiliates, and your Authorized Users comply with this Agreement, we will perform the implementation, on-boarding, training, configuration, and other Setup Services ("Setup Services") that are mutually agreed upon by you and us and described in your Order. In connection with our performance of the Setup Services, you will: (a) reasonably cooperate with us in all matters relating to the performance of the Setup Services; (b) in a timely manner, provide all of Your Data reasonably necessary for us to complete such Services; (c) respond promptly to our requests to provide direction, information, approvals, authorizations, or decisions reasonably necessary for us to perform such Services in accordance with the Order; and (d) perform those additional tasks and assume those additional responsibilities specified in the Order. You accept that our performance is conditioned on and dependent on your timely and effective satisfaction of the foregoing responsibilities.
17. Eligible Third-Party Services
We do not provide, host, operate, or maintain the Eligible Third-Party Services or the application programming interfaces (APIs) or similar connectors provided by the third-party providers of the Eligible Third-Party Services that enable the Platform to transmit data to or from or otherwise interoperate with the Eligible Third-Party Services (collectively, the "Eligible Third-Party IP"). Unless otherwise expressly agreed to in writing, the following terms apply:
Your access to and use of the Eligible Third-Party IP is subject to and conditioned upon you obtaining, directly from the third-party provider of the Eligible Third-Party Services, appropriate and valid authorizations, rights, and licenses to access and use such Eligible Third-Party Services subject to a separate agreement between you and the third-party provider. You are solely responsible for obtaining such authorizations, rights, and licenses (and for complying with all limitations and restrictions and other terms of such authorizations and any related agreements between you and the third-party provider), and we will not obtain (and do not undertake to obtain) any such authorizations on your behalf.
Excluding the Platform product itself, you understand that we cannot and do not control, are not responsible for, make no representations or warranties regarding, and will not be liable to you, your Affiliates, your Authorized Users, or to any other person or entity (under any theory of liability) regarding the availability, quality, legality, functionality, performance, suitability, reliability, validity, accuracy, completeness, security, timeliness, merchantability, fitness for a particular purpose, title, non-infringement, appropriateness, or usefulness of any Eligible Third-Party Services or Eligible Third-Party IP. We do not assume and will not have any liability or responsibility for Eligible Third-Party Services or Eligible Third-Party IP or for your or anyone else's use thereof or reliance thereon. Any concerns or questions about Eligible Third-Party Services must be directed to the third-party provider of the Eligible Third-Party Services (not us).
18. Subscription-Related Provisions: Confidentiality, Data Privacy, Fees, IP, Term
a. Confidentiality. In connection with receiving or providing the Software and Services during the Term, each party (each, a "Discloser") may disclose to the other party (the "Recipient") the Discloser's proprietary or confidential information (collectively, "Confidential Information"). During the Term and thereafter, the Recipient will not without the Discloser's written consent disclose Discloser's Confidential Information to any third party (other than our subcontractors as permitted in Section 14.c) nor use the Discloser's Confidential Information for any purpose except for carrying out its obligations or exercising its rights under this Agreement. Additionally, the Recipient shall implement reasonable administrative, technical, and physical safeguards to protect against anticipated threats or hazards to the security, confidentiality, or integrity of the Discloser's Confidential Information received by the Recipient, including the unauthorized or accidental acquisition, destruction, loss, alteration or use of, and unauthorized access to, Confidential Information.
All non-public information related to our Software and Services and the features, functionality, and performance thereof are our Confidential Information; Your Data (including Personal Information of your employees or other personnel) is your Confidential Information; and the terms of this Agreement and your Order are the Confidential Information of both of us.
These restrictions will not restrict the use or disclosure of information that (i) is or becomes publicly known other than as a result of any act or omission by the Recipient or its employees or agents, (ii) is lawfully received by the Recipient from a third party not in a confidential relationship with the Discloser, or (iii) was already rightfully known by the Recipient prior to receipt from the Discloser. The Recipient may disclose the Discloser's Confidential Information to the extent legally compelled to do so pursuant to applicable law or a valid order of a court or governmental agency, provided that the Recipient must first give the Discloser reasonable prior written notice to permit the Discloser to challenge or limit such required disclosure.
b. Data Privacy.
(i) In General. We will store, use, and otherwise process any of Your Data that constitutes "personal information," "personal data," or "personally identifiable information" as defined under applicable laws (collectively "Personal Information") in all material respects in accordance with all applicable U.S. state and federal laws relating to the privacy and protection of Personal Information ("Data Privacy Laws"), including the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act (collectively, "CCPA"), the Virginia Consumer Data Protection Act ("VCDPA"), the Colorado Privacy Act ("CPA"), the Connecticut Data Privacy Act ("CTDPA"), the Texas Data Privacy and Security Act, and other comprehensive state privacy laws as they take effect.
We will not access, use, handle, maintain, process, dispose of, or disclose Personal Information other than as permitted or required under this Agreement or Data Privacy Laws. We will limit dissemination of Personal Information to our employees and subcontractors who (A) need to know the information to enable us to perform our obligations or exercise our rights under this Agreement, and (B) are bound by confidentiality and data privacy obligations substantially equivalent to those provided for in this Agreement.
We will in good faith cooperate with you as may be reasonably required to enable you to comply with Data Privacy Laws, including by reasonably assisting you in complying with individuals' rights with respect to their Personal Information under Data Privacy Laws. If and to the extent Data Privacy Laws require additional clauses to be executed by us beyond those set forth in this Agreement (for example, a separate data processing addendum or standard contractual clauses), then you must notify us in writing of such requirement and we will in good faith review, negotiate, and consider adding such clauses as an addendum to this Agreement. In the absence of such notice you represent and warrant that no additional clauses are required.
(ii) Service Provider / Processor Status. You and we both agree that, with respect to Personal Information of consumers that you upload, transmit, or otherwise provide to or through the Software, you are a "business" or "controller" and we are a "service provider" or "processor" under the Data Privacy Laws. The business purpose for which we process Personal Information under this Agreement is the provision of the Software to you, your Affiliates, and your Authorized Users for access and use for the Permitted Use, and to enable provision of all related Services. During the Term and thereafter, we will:
(1) not retain, use, or disclose Personal Information for any purpose (including any commercial purpose) other than for the specific purpose of providing the Software and performing the Services contemplated by this Agreement;
(2) not retain, use, or disclose Personal Information outside of the direct business relationship between you and us;
(3) not "sell" Personal Information to or "share" Personal Information with any third parties (as those terms are defined in the CCPA and analogous Data Privacy Laws);
(4) not combine or update Personal Information we have collected pursuant to this Agreement with Personal Information we have received from another source or collected from our own interaction with the applicable consumer (outside of and separate from the provision of the Software and performance of the Services under this Agreement) unless expressly permitted by Data Privacy Laws;
(5) comply with all applicable sections of the CCPA, VCDPA, CPA, CTDPA, and other applicable Data Privacy Laws;
(6) cooperate with you in responding to and complying with consumers' requests made pursuant to Data Privacy Laws, including by enabling you to comply with consumer requests (provided that you must inform us of any consumer request that we must comply with and provide the information necessary for us to comply with the request);
(7) implement reasonable security procedures and practices appropriate to the nature of the Personal Information to protect it from unauthorized or illegal access, destruction, use, modification, or disclosure, in accordance with applicable law (including California Civil Code Section 1798.81.5);
(8) notify you after we make a determination that we can no longer meet our obligations under Data Privacy Laws; and
(9) provide reasonable assistance to enable you to conduct data protection assessments where required by applicable Data Privacy Laws.
You shall have the right to: (A) take reasonable and appropriate steps to ensure that we use Personal Information collected pursuant to this Agreement in a manner consistent with your obligations under Data Privacy Laws; and (B) upon notice, take reasonable and appropriate steps to stop and remediate our unauthorized use of Personal Information. We certify that we understand and will comply with the restrictions, duties, and obligations set forth in this Section 18.b.
If any consumer makes a request directly to us with respect to exercising privacy rights, we will promptly notify you and provide you with a copy of the request, inform the consumer that the request cannot be acted upon by us because the request has been sent to a service provider/processor, and reasonably cooperate with you in your efforts to respond and act on the request in accordance with the requirements of applicable Data Privacy Laws, in each case unless legally prohibited from doing so.
As permitted and provided by Data Privacy Laws, nothing in this Section 18.b will prohibit us from retaining, using, or disclosing Personal Information in connection with: (1) retaining or employing another service provider/processor as a subcontractor, provided the subcontractor meets the requirements for a service provider/processor under Data Privacy Laws; (2) internal use to build or improve the quality of our Software or Services, provided that the use does not include building or modifying household or consumer profiles for use in providing services to another business, or correcting or augmenting data acquired from another source; (3) detecting data security incidents or protecting against fraudulent or illegal activity; (4) complying with applicable laws; (5) complying with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by governmental authorities; (6) cooperating with law enforcement agencies concerning conduct or activity that you, we, or a third party reasonably and in good faith believes may violate applicable law; or (7) exercising or defending legal claims.
For purposes of this Section 18.b, terms such as "business," "controller," "commercial purpose," "consumer," "personal information," "personal data," "processing," "share," "sell," "service provider," and "processor" shall have the meanings given to them under the applicable Data Privacy Laws.
c. Fees and Payment.
(i) Fees. You will pay to us the fees and charges set forth in your Order (the "Fees"), in accordance with the Order and this Section 18.c. In addition, all Software subscription Fees may, in our discretion, be increased not more than once per year if we notify you of the pending Fee increase at least 30 days prior to the Fee increase taking effect. Unless otherwise specified in your Order, in each Renewal Period all Software subscription Fees may, in our discretion, be increased for the Renewal Period by up to five percent (5%) above the Fees prevailing in the immediately prior initial term or renewal term (in addition to any increases corresponding to changes in usage or other pricing parameters) without additional notice. All purchases are final, all payment obligations are non-cancelable, and (except as otherwise expressly provided in this Agreement or in your Order) all Fees once paid are non-refundable.
(ii) Payment Terms. You will make all payments in U.S. dollars, in accordance with the payment schedule set forth on your Order or the applicable invoice. Unless otherwise specified, invoiced amounts are due 30 days from the invoice date. You are responsible for providing complete and accurate billing information and notifying us of any changes.
(iii) Taxes. Our Fees do not include taxes and similar assessments. You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, local, or other governmental or regulatory authority on any amounts payable hereunder, other than any taxes imposed on the Company's income.
d. Ownership and IP.
(i) Company IP. As between you and us, we are and will remain the sole and exclusive owner of all right, title, and interest in and to the Software and Documentation (excluding any of Your Data or Confidential Information), including all associated features, functionality, software, content, materials, and services made available thereon by us, including all new versions, Updates, configurations, revisions, derivative works, improvements, and modifications, the look and feel, ideas, algorithms, methods, and concepts underlying or embedded in any of the foregoing, and all related intellectual property rights (collectively, the "Company IP"). We are not granting you any right, license, or authorization with respect to the Company IP except as specifically provided in Section 13. Nothing in this Agreement grants you any rights in or relating to the source code of the Software. We reserve all other rights in and to the Company IP.
(ii) Your Data. As between you and us, you are and will remain the sole and exclusive owner of all right, title, and interest in and to all of Your Data, including all intellectual property rights relating to Your Data, subject to the rights you grant to us in this Section 18.d. You grant to us and our subcontractors all such rights and permissions in or relating to Your Data as are necessary or useful to: (A) perform the Services and provide the Software; (B) enforce this Agreement and exercise our rights and perform our obligations under this Agreement; and (C) build or improve the quality of our Software or Services, internally, provided that the use does not include building or modifying household or consumer profiles for use in providing services to another business, or correcting or augmenting data acquired from another source.
(iii) Usage Data. We may collect diagnostic, metadata, telemetry, technical, and other statistical information regarding your, your Affiliates', and your Authorized Users' use of and the performance of the Software ("Usage Data"), such as data on what features and functions are being used and to what extent and information about users' computers, systems, and software used to access the Software. We may use Usage Data for monitoring, enhancing, and improving the Software. Usage Data is not and will not be deemed to be Your Data under this Agreement.
(iv) Feedback. You may provide us with information and feedback concerning errors, suggestions for improvements, ideas, problems, complaints, and other matters related to our Software ("Feedback"). You acknowledge and agree that: (A) you shall not retain, acquire, or assert any intellectual property right or other right, title, or interest in or to the Feedback; (B) we may have development ideas similar to the Feedback; and (C) we are not under any obligation of confidentiality with respect to the Feedback. In the event the transfer of ownership of the Feedback is not possible due to applicable mandatory laws, you grant us and our affiliates an exclusive, transferable, irrevocable, free-of-charge, sublicensable, unlimited, and perpetual right to use (including copy, modify, create derivative works, publish, distribute, and commercialize) the Feedback in any manner and for any purpose.
(v) Publicity Rights. During the Term, you agree that we may, without separate written consent from you, include your name, trademarks, and logos on our website and in other sales and marketing materials in order to factually identify you as a current customer.
e. Term and Termination.
(i) Term. The initial term of this Part 2 commences on the first date you accept this Agreement and continues for the period specified in your Order as the "Initial Term" (the "Initial Term"). Thereafter, unless otherwise specified in your Order, this Part 2 will automatically renew for successive periods equal to the length of the "Renewal Period" specified in the Order (each, a "Renewal Period"), unless one party provides written notice to the other of its intent not to renew at least 30 days prior to the end of the then-current Initial Term or Renewal Period. The Initial Term and each Renewal Period (if any) are referred to collectively as the "Term."
(ii) Termination for Cause. In addition to any other termination rights described in this Agreement, this Part 2 may be terminated prior to the end of the Term at any time by either party, effective when that party provides written notice to the other, if the other party materially breaches this Agreement and such breach (A) remains uncured 30 days after the non-breaching party provides written notice of such breach, or (B) is the second (or higher ordinal) breach of the limitations and restrictions in Section 13.b.
(iii) Effect of Termination. The exercise of any right of termination under this Agreement will not affect any rights of either party (e.g., rights to payment) that have accrued prior to the effective date of termination and will be without prejudice to any other legal or equitable remedies. If this Part 2 is terminated or expires, then: (A) all rights, licenses, and authorizations granted by one party to the other will immediately terminate; (B) we may disable your, your Affiliates', and your Authorized Users' access to the Software; and (C) we each will cease all use of the other party's Confidential Information and (upon written request) promptly destroy or return all of the other party's Confidential Information.
(iv) Surviving Terms. This Section 18.e(iv) and Sections 18.a (Confidentiality), 18.b (Data Privacy), 18.d (Ownership and IP), 18.e(iii) (Effect of Termination), Part 1 Sections 6 and 7 (Website IP and Submissions), and all of Part 3 will survive any expiration or termination of this Agreement.
f. Representations and Warranties.
(i) By You Regarding Your Data. You represent and warrant that: (A) your, your Affiliates', and your Authorized Users' collection and use of all of Your Data (including your choice to upload and process Your Data to and through the Software) and your Confidential Information is consistent with your own privacy policy and your license and other agreements with third parties; (B) you either own, or have all rights, permissions, and consents that are necessary to permit us, our subcontractors, and the Software to store, use, and otherwise process as contemplated in this Agreement, all of Your Data and your Confidential Information; (C) our and our subcontractors' access to and storage, use, and other processing of Your Data and your Confidential Information (including all Personal Information included therein) in accordance with this Agreement does not and will not violate any applicable law, rule, or regulation or infringe, misappropriate, or otherwise violate any intellectual property right, privacy right, or other right of any person or entity. You will defend us from and against any Claims brought by a third party, and you will indemnify and hold us harmless from any Losses associated with such third-party Claims, in each case to the extent the same are based on allegations that you, your Affiliate, or your Authorized Users (or any other employee, contractor, or agent under your control or direction or acting on your behalf) have breached any representation or warranty in this Section 18.f(i).
(ii) By Us Regarding Our Services. We warrant that we will perform the Support Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. If you provide written notice of any such Services not performed in accordance with this Section within 30 days after completion thereof, we will re-perform such non-conforming Services at no additional cost to you. THE PROMPT RE-PERFORMANCE OF SERVICES SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY, AND THE COMPANY'S ONLY AND ENTIRE OBLIGATION AND LIABILITY, FOR ANY BREACH OF THE WARRANTY IN THIS SECTION 18.f(ii).
(iii) By Us Regarding Our Software. We warrant that the Software will at all times during the Term substantially conform in all material respects with its Documentation and the written specifications expressly set forth by you and us (if any) in your Order. The warranty does not apply to any non-conformance resulting from: (x) use of the Software in a manner inconsistent with this Agreement or its Documentation; (y) the availability of, operation of, or access to your, your Affiliate's, your Authorized User's, or a third party's software, systems, or networks (including any Eligible Third-Party Services or Eligible Third-Party IP); or (z) Your Data. If we breach the warranty set forth in this Section 18.f(iii), we will, at our sole option and expense, take any of the following steps to remedy such breach: (A) modify, fix, or correct the Software; (B) replace the non-conforming portion of the Software with functionally equivalent software; or (C) if the remedies in clauses (A) and (B) are not feasible by commercially reasonable standards, terminate this Agreement and promptly refund to you on a pro rata basis the share of any Software subscription fees prepaid by you for the future portion of the applicable subscription term that would have remained but for such termination (a "Refund of Fees"). If we do not cure a warranty breach or terminate this Agreement as permitted by the immediately preceding sentence within 30 days after our receipt of written notice of such breach, you will have the right to terminate this Agreement and we will promptly provide a Refund of Fees. THE REMEDIES SET FORTH IN THIS SECTION 18.f(iii) SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY, AND THE COMPANY'S ONLY AND ENTIRE OBLIGATION AND LIABILITY, FOR ANY BREACH OF THE WARRANTY IN THIS SECTION 18.f(iii).
g. Platform Indemnification by Us. We will defend you from and against any Claims brought by a third party, and will indemnify and hold you harmless from any Losses associated with such third-party Claims, in each case to the extent the same are based on allegations that the Software or your use thereof (excluding Your Data or Confidential Information) infringes any U.S. patent, copyright, or trademark of such third party, or misappropriates the trade secret of such third party (each, an "Infringement Claim"). We will have no liability or obligation with respect to any Infringement Claim to the extent based upon or arising out of: (i) access to or use of the Software in combination with any hardware, system, software, network, or other materials or service not provided by us (or authorized in the Documentation or otherwise in writing by us); (ii) modifications or configurations made to the Software by anyone other than us or a party acting under our direction without our prior written consent; or (iii) any action taken by you, your Affiliate, or any Authorized User relating to use of the Software that violates this Agreement. If the Software is, or in our opinion is likely to be, the subject of an Infringement Claim, or if your, your Affiliate's, or any Authorized User's use of the Software is enjoined or threatened to be enjoined, we will, at our option and our sole cost and expense: (A) obtain the right for you to continue to use the allegedly infringing Software as contemplated by this Agreement; (B) modify or replace the allegedly infringing Software to make such Software non-infringing, without causing a material loss of features or functionality; or (C) if the remedies in clauses (A) and (B) are not feasible within commercially reasonable standards, terminate this Agreement upon written notice and promptly provide a Refund of Fees.
PART 3 — GENERAL PROVISIONS (APPLICABLE TO ALL USERS)
19. Dispute Resolution and Arbitration; Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER. YOU HAVE A RIGHT TO OPT OUT OF THIS SECTION WITHIN 30 DAYS AS DESCRIBED BELOW.
a. Informal Resolution. Before initiating any formal proceeding, you and we agree to attempt to resolve any dispute, claim, or controversy arising out of or relating to this Agreement, the Services, our products, or any communications between us (each, a "Dispute") informally. You will send a written notice of dispute to info@nimble-energy.com (subject line: "Notice of Dispute") describing the nature and basis of the Dispute and the relief sought, and the parties will attempt in good faith to resolve the Dispute through informal negotiation for at least 60 days. If the Dispute is not resolved within that period, either party may proceed to arbitration as described below.
b. Binding Individual Arbitration. Except as provided in Sections 19.d and 19.e, all Disputes will be resolved by binding individual arbitration administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules and, where applicable, its Consumer Arbitration Rules (collectively, the "AAA Rules"), as modified by this Agreement. The arbitration will be conducted by a single arbitrator. The seat of arbitration is Wilmington, Delaware. The arbitration may be conducted in person, by submission of documents, by telephone, or online, as agreed by the parties or directed by the arbitrator. The arbitrator's decision will be final and binding, and judgment on the award may be entered in any court of competent jurisdiction. The Federal Arbitration Act governs the interpretation and enforcement of this arbitration agreement.
c. Class Action Waiver. YOU AND WE EACH AGREE THAT ANY DISPUTE WILL BE BROUGHT IN AN INDIVIDUAL CAPACITY ONLY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, REPRESENTATIVE, OR MASS ACTION OR PROCEEDING. The arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of representative or class proceeding. If a court or arbitrator decides that this class action waiver is unenforceable as to a particular claim or remedy, then that claim or remedy (and only that claim or remedy) must be severed from arbitration and may be brought in court, with all other claims proceeding in arbitration.
d. Small Claims Court. Notwithstanding anything to the contrary, either party may bring an individual action in small claims court for Disputes that qualify, so long as the matter remains in such court and proceeds only on an individual (non-class, non-representative) basis.
e. Equitable Relief; IP and Confidentiality. Notwithstanding anything to the contrary, either party may seek injunctive or other equitable relief in any court of competent jurisdiction to prevent or enjoin the actual or threatened infringement, misappropriation, or violation of that party's intellectual property rights, Confidential Information, or unauthorized use of the Services.
f. 30-Day Opt-Out. You may opt out of this Section 19 (other than Section 19.e) by sending a written notice to info@nimble-energy.com (subject line: "Arbitration Opt-Out") and to 148 Coley Ct, Pittsboro, NC 27312, within 30 days of the date you first accept this Agreement. The notice must include your name, address, and a clear statement that you wish to opt out of the arbitration and class-action waiver provisions of these Terms of Service. If you opt out within this period, you will not be bound by Sections 19.b or 19.c, but the remainder of this Agreement will continue to apply. Opting out has no effect on any other agreement you have with us or may have with us in the future.
g. Mass Arbitration Procedures. If 25 or more similar claims for arbitration against us are submitted by or on behalf of represented claimants by or with the assistance of the same law firm or coordinated group of law firms (collectively, "Coordinated Claimants"), the parties agree that the claims may be administered by AAA in batches of 50 (or fewer if fewer remain). Each batch will be administered to conclusion (including any settlement, withdrawal, or final award) before the next batch begins. Filing fees and arbitrator fees for claims grouped within a batch may be subject to AAA's mass-arbitration supplementary rules then in effect. The parties will cooperate in good faith to implement this batched process and to avoid duplicative proceedings.
h. Fees and Costs. Each party will bear its own attorneys' fees and costs in any arbitration, except as the arbitrator may otherwise award under applicable law. Filing and administrative fees are governed by the AAA Rules; if you are a consumer claimant and the AAA Consumer Arbitration Rules apply, we will pay the portion of any AAA fees in excess of the amount you would have paid to file a comparable claim in court, unless the arbitrator determines your claim is frivolous.
i. Survival. This Section 19 survives any termination or expiration of this Agreement.
20. Governing Law
This Agreement is governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict-of-law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply. For any Disputes not subject to arbitration under Section 19, the parties consent to the exclusive jurisdiction and venue of the state and federal courts located in New Castle County, Delaware, and waive any objection to such jurisdiction or venue, except as required by applicable consumer-protection law.
21. Changes to This Agreement
We may revise and update this Agreement from time to time in our sole discretion; provided, however, that, during the Term of a Platform subscription, we will not without your prior written consent make any revisions, updates, or other changes to this Agreement in a manner that is materially adverse to you by either (a) reducing our express obligations to you under this Agreement, or (b) altering our express representations, warranties, indemnities, or limitations of liability. Via a conspicuous posting on the Website or within the Platform, or via notice by email to the email address we have on file for you, we will notify subscribers of any material changes to this Agreement. Changes to this Agreement are effective 30 days after we notify you (the "Notification Period") with respect to subscribers, and immediately upon posting with respect to non-subscribers, in each case unless a later effective date is specified. If we make a change to this Agreement that has a material adverse effect on your operations as a subscriber, then you may notify us in writing of the material adverse effect and may, immediately upon written notice to us, terminate this Agreement if we do not cure this condition prior to the end of the Notification Period. Your continued use of the Services following the end of the Notification Period (or, for non-subscribers, following the effective date of the change) means that you accept and agree to the changes. You must immediately discontinue use of the Services if you do not want to agree to the revised Agreement.
22. Notices
All notices under this Agreement must be in writing and may be delivered by electronic mail, certified or registered mail, overnight courier, or personal delivery. Notices to us must be sent to info@nimble-energy.com or to Nimble Energy, Inc., 148 Coley Ct, Pittsboro, NC 27312. Notices to you may be sent to the email address or postal address you provided to us, or as specified in your Order.
23. Assignment
Neither party may assign or otherwise transfer this Agreement without the prior written consent of the other party; provided that either party may assign this Agreement in its entirety without the other party's consent to its affiliates or to an entity that acquires all or substantially all of the business or assets of such party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise. This Agreement will be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties.
24. Disclaimer of Warranties (General)
EXCEPT FOR THE EXPRESS LIMITED WARRANTIES IN SECTIONS 18.f(ii) AND 18.f(iii), THE WEBSITE, THE SERVICES, ALL COMPANY IP, AND ALL CONTENT MADE AVAILABLE THROUGH ANY OF THE FOREGOING ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND WE HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT WILL BE ACCURATE OR RELIABLE. ANY ESTIMATES, MODELS, OR RESULTS PRODUCED BY THE SAVINGS CALCULATOR OR THE PLATFORM ARE FOR INFORMATIONAL PURPOSES ONLY AND DO NOT CONSTITUTE A GUARANTEE OF ENERGY OR FINANCIAL SAVINGS.
25. Limitation of Liability
IN NO EVENT WILL WE BE LIABLE TO YOU, YOUR AFFILIATES, YOUR AUTHORIZED USERS, OR TO ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND OR NATURE (INCLUDING DIRECT DAMAGES) IN EXCESS OF, FOR PLATFORM SUBSCRIBERS, THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO US UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING YOUR FIRST CLAIM AGAINST US HEREUNDER, AND, FOR USERS WHO ARE NOT PLATFORM SUBSCRIBERS, ONE HUNDRED U.S. DOLLARS ($100). ADDITIONALLY, UNDER NO CIRCUMSTANCES WILL WE HAVE ANY LIABILITY WITH RESPECT TO OUR OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR FOR CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL, OR PUNITIVE DAMAGES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY, OR OTHERWISE. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
26. Indemnification by You (General)
To the maximum extent permitted by law, you agree to defend, indemnify, and hold harmless Nimble Energy, its affiliates, and their respective officers, directors, employees, agents, and licensors from and against any and all third-party Claims and Losses (including reasonable attorneys' fees) arising out of or relating to: (a) your use of the Services in violation of this Agreement or applicable law; (b) any Submissions or content you provide to us; (c) your violation of any third-party right, including any intellectual property, privacy, or publicity right; or (d) your breach of any representation or warranty in this Agreement.
27. Equitable Remedies
Each party acknowledges and agrees that a breach or threatened breach by such party of its obligations under Section 13.b (Limitations and Restrictions) or Section 18.a (Confidentiality) of this Agreement would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
28. Force Majeure
Neither party will be liable for any delays or non-performance of its obligations arising out of actions or decrees of governmental authorities (including enactment or adoption of law or regulation) following the first date you accept this Agreement, criminal acts of third parties, telecommunication failures not caused by a party, problems with equipment or software provided by other parties, earthquakes, flood, and other natural disasters, war, terrorism, acts of God, pandemics, or fire, or other similar causes not within such party's reasonable control (each, a "Force Majeure Event"). In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of 30 days or more.
29. Entire Agreement; Severability; Waiver
This Agreement and each Order together constitute the entire agreement between the parties on the subject matter hereof, and supersede all prior negotiations, understandings, or agreements (oral or written) and all past dealing or industry custom. We are not and will not be bound by (and we hereby expressly reject throughout the Term) any of the terms and conditions of (or that may be incorporated by reference in) any other purchase order, receipt, acceptance, confirmation, or other correspondence provided by you. No change, consent, or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. Any delay or failure of either party to enforce its rights under this Agreement will not be construed as a waiver. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect.
30. No Third-Party Beneficiaries; Independent Contractors
This Agreement is for the sole benefit of the parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit, or remedy under this Agreement. The relationship between the parties is that of independent contracting parties. Nothing in this Agreement creates any agency, partnership, joint venture, employment, or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner.
31. Conflict in Terms; Counterparts
If there is a conflict between this Agreement and your Order, the terms of the Order shall govern; provided that nothing in your Order may modify or supersede anything in Sections 13.b, 18.d, 18.f, 18.g, 19, 24, 25, or 26 of this Agreement unless an express cross-reference is made to the relevant provision of this Agreement in the Order and the parties have expressly agreed in the Order to modify the relevant provision. This Agreement and each Order may be executed in counterparts, each of which is deemed an original. A signed copy of this Agreement or an Order delivered by facsimile, electronic mail, or other electronic means is deemed to have the same legal effect as delivery of an original.
32. Definitions
Capitalized terms have the meanings given in this Agreement, including the following:
• "Affiliate" means another entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with you. "Control" means the power to direct or cause the direction of the management and policies of an entity through the ownership of more than 50% of the voting securities of the entity.
• "Authorized User" means your (or your Affiliates') employees, independent contractors, consultants, agents, subcontractors, vendors, or other service providers who access and use the Platform by and through your account, in each case so long as such access and use is in furtherance of (or in order to support) the Permitted Use of the Software under this Agreement.
• "Claim" means any investigation by a governmental body, claim, suit, action, or proceeding.
• "Documentation" means the then-current online, electronic, and written user documentation and guides we make available to you, your Affiliates, and your Authorized Users describing the functionality, components, features, or requirements of the Software, as we may update from time to time.
• "Harmful Code" means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system, or network or (b) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby.
• "Loss" means any and all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification and the cost of pursuing any insurance providers.
• "Order" means the order form, order purchase confirmation page, check-out page, or similar ordering webpage, landing page, or written document presented and offered to you by us and confirmed or otherwise accepted by you, in each case that references this Agreement. An Order may specify applicable pricing and fees, a limit to the number of Authorized Users who may use the Software, how long you are authorized to use the Service, and other terms.
• "Permitted Use" means your internal use to monitor, analyze, and manage building operations and utility costs and usage, in the ordinary course of operations of your business or organization, as well as any other Permitted Uses expressly specified in your Order.
• "Your Data" means information, data, records, or other materials that are submitted to or uploaded directly by you, your Affiliate, or an Authorized User by or through the Software for the purposes of being processed using the Platform.
33. Contact
If you have questions about this Agreement, please contact us:
Nimble Energy, Inc.
148 Coley Ct, Pittsboro, NC 27312
Email: info@nimble-energy.com
Phone: (919) 389-1796