NIMBATA SUBSCRIPTION AGREEMENT
Contents
This Subscription Agreement (“Agreement“) governs access to and use of the call-tracking and related software-as-a-service platform operated by Nimbata, LLC, a Massachusetts limited liability company (“Nimbata“, “we“, “us“, or “our“).
By creating an Account, clicking “I accept”, or otherwise accessing or using the Services, the Customer (as defined below) agrees to be bound by this Agreement in its entirety. If the Customer does not agree, it must not access or use the Services.
5. SUBSCRIPTIONS, CANCELLATION, AND REFUNDS
6. INTELLECTUAL PROPERTY RIGHTS
9. LIMITATION OF LIABILITY AND INDEMNIFICATION
10. CALL RECORDING AND TRANSCRIPTION
15. GOVERNING LAW AND DISPUTE RESOLUTION
16. USER IDENTIFICATION AND SECURITY
17. CUSTOMER REFERENCE AND LOGO
1. DEFINITIONS
“Account” means the Customer’s registered account on the Nimbata platform, created at app.nimbata.com or through an authorized white-label partner portal, which grants the Customer and its Authorized Users access to the Services.
“Authorized Users” means the employees, contractors, and agents of the Customer who are authorized by the Customer to access and use the Services under the Customer’s Account.
“Customer” means the individual or legal entity accepting this Agreement. If an individual accepts on behalf of a legal entity, that individual represents and warrants that: (i) they have full legal authority to bind the entity to this Agreement; (ii) they have read and understood this Agreement; and (iii) they agree to this Agreement on behalf of that entity. If the individual accepting this Agreement ceases to be affiliated with the Customer entity, ownership of the Account and all associated data and content remains with the Customer entity.
“Documentation” means Nimbata’s user guides, help articles, and technical specifications for the Services made available at help.nimbata.com or otherwise provided by Nimbata.
“Fees” means the subscription fees, overage charges, and any other amounts payable by the Customer under an Order Form or as set out in this Agreement.
“Fair Use Policy” or “FUP” means Nimbata’s fair use parameters governing average call duration per destination in any billing period, as set out in Section 4.2 and as may be updated by Nimbata from time to time on at least thirty (30) days’ prior written notice to the Customer. The FUP is incorporated into and forms part of this Agreement.
“Order Form” means any of the following, as applicable: (i) the online sign-up page, plan selection page, or free-trial registration through which the Customer selects Services and accepts pricing on Nimbata’s platform or website; (ii) any in-platform plan upgrade, downgrade, or modification made through the Customer’s Account; (iii) any written or electronic order, proposal, or ordering document agreed between the parties (including through an authorized white-label or reseller portal) that sets out the Services subscribed to, the Subscription Term, and the applicable Fees; or (iv) any combination of the foregoing. Where no separate Order Form exists, the plan and pricing selected by the Customer at registration shall constitute the Order Form for the purposes of this Agreement.
“Subscription Term” means the initial and any renewal subscription period for the Services as specified in the applicable Order Form.
“Data Processing Agreement” or “DPA” means any data processing agreement, business associate agreement (“BAA“), or other equivalent contractual instrument entered into between Nimbata and the Customer governing the processing of Personal Data in connection with the Services, as required by applicable Data Protection Laws (including, where applicable, HIPAA), as may be amended or supplemented from time to time. References to the “DPA” in this Agreement include any such instrument in effect between the parties.
“Services” means the cloud-based call-tracking, call-routing, call-recording, call-transcription, caller-identification, advertising-channel attribution, inbound and outbound SMS messaging, form tracking, workflow automation, and related analytics services provided by Nimbata through its platform (including the web interface and any APIs), together with: (i) AI-powered features, meaning artificial-intelligence and machine-learning capabilities applied to call and interaction data, including (without limitation) automated sentiment analysis, call tagging and scoring, intent classification, and other AI-generated insights assigned to calls or interactions; (ii) third-party integrations, meaning connectivity with, and data transfer to or from, third-party platforms, tools, and service providers made available through the Nimbata platform from time to time; and (iii) agentic and protocol features, meaning any Model Context Protocol (MCP) server or client implementations, voice-AI agents, conversational AI agents, and other autonomous or semi-autonomous workflow features that Nimbata makes available as part of the platform; together with any updates, modifications, and new features that Nimbata introduces from time to time, as further described in the applicable Order Form and Documentation.
“Data Protection Laws” means all applicable legislation relating to the protection of Personal Data and privacy of electronic communications, including: (i) Regulation (EU) 2016/679 (“GDPR”) and any national legislation supplementing or implementing the GDPR; (ii) the UK GDPR and the UK Data Protection Act 2018; (iii) the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and its implementing regulations; and (iv) any other applicable privacy or data protection law or regulation in force from time to time in any jurisdiction applicable to either party’s activities under this Agreement.
“Personal Data” has the meaning given in the applicable DPA.
“Customer Personal Data” means any Personal Data that Nimbata Processes on behalf of the Customer in connection with the provision of the Services, as specified in the applicable DPA.
“Service Data” means all data, including Customer Personal Data, call data and form data, submitted to or generated through the Services by or on behalf of the Customer or its Authorized Users.
2. SERVICES AND ACCOUNT
2.1 Grant of Access. Subject to the Customer’s compliance with this Agreement and timely payment of all Fees, Nimbata grants the Customer a limited, non-exclusive, non-transferable, non-sublicensable right during the Subscription Term to access and use the Services solely for the Customer’s internal business purposes and in accordance with the Documentation. Nimbata will use commercially reasonable efforts to obtain the telephone numbers requested by the Customer and to initiate and complete any porting requests. The Customer acknowledges that: (i) Nimbata may need to change any telephone number assigned to the Customer due to area code reassignments, regulatory requirements, or carrier requirements; and (ii) if the Services are suspended or terminated for non-payment or breach of this Agreement, the Customer may not be able to recover the same telephone numbers upon any reactivation of the Services. Nimbata will provide reasonable advance notice of any number change where practicable.
2.2 Account responsibility. The Customer is solely responsible for: (i) all use of the Services under its Account, whether authorized or not; (ii) maintaining the confidentiality of its login credentials; (iii) promptly notifying Nimbata upon becoming aware of any unauthorized access or use of the Account; and (iv) ensuring that all Authorized Users comply with this Agreement.
2.3 End Users. Where the Customer deploys the Services to its own end users (“End Users“), the Customer shall maintain a written agreement with each End User that: (i) grants Nimbata the rights necessary to process End User data to the extent required to provide the Services; (ii) includes restrictions on use no less protective of Nimbata than those set out in this Agreement; and (iii) where the Customer is subject to Data Protection Laws, complies with applicable data protection requirements. The Customer shall promptly notify Nimbata of any material breach of such End User agreements of which it becomes aware.
2.4 Service Data. The Customer retains all right, title, and interest in and to Service Data. The Customer grants Nimbata a worldwide, non-exclusive license to Process Service Data solely to the extent necessary to: (i) provide the Services to the Customer; (ii) respond to Customer support requests; (iii) comply with applicable law; and (iv) develop and improve Nimbata’s products and services, provided that any Service Data used for improvement purposes is aggregated and de-identified such that it cannot reasonably be used to identify the Customer or any individual. Nimbata shall not sell Service Data or disclose it to third parties except as necessary to provide the Services or as required by law. To the extent that Service Data includes Personal Data, the parties’ respective rights and obligations are set out in the DPA.
3. COMPLIANCE WITH LAWS
3.1 Geographic availability. The Services may not be available in all countries or regions. The Customer is responsible for ensuring that its use of the Services complies with all laws and regulations applicable in the jurisdictions in which it operates, including (without limitation) those relating to telecommunications, call recording, electronic communications, and data protection.
3.2 Government requests. Nimbata will cooperate with government authorities and provide information about Customer Accounts where required to do so by applicable law, valid court order, or binding legal process. Where legally permissible and where doing so would not require Nimbata to take immediate action (including suspending or closing an Account), Nimbata will use reasonable efforts to provide the Customer with written notice of such a request before disclosing Customer information, so as to allow the Customer an opportunity to seek a protective order or other appropriate remedy. Where advance notice is not legally permissible, or where Nimbata is required to act immediately (including by suspending, restricting, or closing an Account) in response to a government request or legal obligation, Nimbata will provide the Customer with written notice as soon as reasonably practicable after taking such action, to the extent permitted by applicable law. Nimbata shall have no liability to the Customer arising out of or in connection with any such cooperation, disclosure, suspension, or account closure carried out in good-faith compliance with applicable law or a binding legal process. In addition, Nimbata and the Customer will cooperate with each other and, where required, with third parties to identify the origin of any voice call to or from a telephone number operated through the platform that is suspected of being an illegal robocall, including by identifying the upstream service provider or the Customer’s own end user responsible for originating such call. Nimbata makes no warranty regarding the attestation level that any voice service provider may assign to calls under the Customer’s Account and shall have no liability for any such attestation, call blocking, or traffic filtering imposed by a third-party carrier.
4. FEES AND PAYMENT
4.1 Subscription Fees. The Customer agrees to pay Nimbata the Fees set out in the applicable Order Form in accordance with the payment terms set out therein. All Fees are quoted and payable in the currency stated in the Order Form and are exclusive of applicable taxes.
4.2 Fair Use Policy and overages. The Services are subject to Nimbata’s Fair Use Policy (“FUP“). Under the current FUP, if the average call duration (per destination) exceeds 3.5 minutes in any billing period, Nimbata may apply an overage charge calculated as follows: (Observed average call duration minus 3.5 minutes) multiplied by the number of calls for the period multiplied by (cost of an answered call divided by 3.5). Nimbata will notify the Customer of any material change to the Fair Use Policy at least thirty (30) days in advance.
4.3 Billing and payment. Nimbata operates two billing cadences: (a) Subscription (licence) fees are due and payable in advance at the start of each billing period (monthly or annual, as applicable) or as otherwise specified in the Order Form; and (b) usage-basedcharges (including overage charges under the Fair Use Policy and any other consumption-based fees) are invoiced in arrears at the end of each calendar month in which they are incurred. The Customer authorizes Nimbata and its authorized payment processors to charge the payment method on file for all amounts due under both cadences. The Customer is responsible for maintaining accurate and up-to-date payment information.
4.4 Taxes. All Fees are exclusive of taxes, levies, duties, or similar governmental assessments (including VAT, sales tax, withholding tax, etc.). The Customer is responsible for paying all such taxes. If Nimbata is required to collect or pay any such taxes, the Customer will be invoiced and shall pay such amounts.
4.5 Late payment and payment retry. If any amount due is not successfully collected on the scheduled payment date, Nimbata will automatically retry the charge against the Customer’s payment method on file on the following schedule: (a) three (3) days after the initial failed attempt; (b) five (5) days after the previous retry attempt; and (c) seven (7) days after the previous retry attempt. If all three retry attempts are unsuccessful, Nimbata may suspend the Customer’s access to the Services and subsequently terminate the Customer’s subscription and this Agreement immediately and without further notice, in which case the consequences set out in Section 13.6 shall apply. In the event of late payment of undisputed amounts, Nimbata may additionally: (i) charge interest on overdue amounts at the rate of 1.5% per month (or the maximum rate permitted by law, if lower); and (ii) engage collection services and recover from the Customer all reasonable costs of collection, including legal fees. The Customer is responsible for ensuring that its payment method on file is accurate and has sufficient funds.
4.6 Security deposit. Where specified in an Order Form, Nimbata may require the Customer to pay a one-time, fully refundable security deposit (the “Deposit”) in an amount set out in the applicable Order Form. The Deposit serves solely as security for the Customer’s payment obligations under this Agreement and does not alter the Customer’s standard billing cycle. Nimbata shall hold the Deposit in an account of its choosing and shall not be required to pay interest on the Deposit. Upon expiry or termination of this Agreement (howsoever arising), Nimbata shall refund the Deposit to the Customer within thirty (30) days, less any outstanding Fees or other amounts due and payable by the Customer under this Agreement. Where Nimbata applies any portion of the Deposit against unpaid Fees during the Subscription Term, it may require the Customer to replenish the Deposit to its original amount within fourteen (14) days of written notice. Failure to replenish the Deposit when required shall constitute a material breach of this Agreement for the purposes of Section 13.3.
5. SUBSCRIPTIONS, CANCELLATION, AND REFUNDS
5.1 Subscription Term and renewal. The Subscription Term commences on the date set out in the Order Form and continues for the initial period specified therein. Unless the Customer cancels its subscription in accordance with Section 5.3, the Subscription will automatically renew for successive periods equal to the initial Subscription Term at the then-current list price.
5.2 Free trial. Where Nimbata offers the Customer a free trial of the Services, the duration, scope, and any usage caps applicable to such trial will be specified at the time of registration. If the Customer has provided a valid payment method during or prior to the trial period and: (a) has not cancelled before the end of the trial period; or (b) exceeds any applicable trial usage cap before the end of the trial period, billing will commence automatically at the applicable subscription rate. If the Customer has not provided a payment method, access to the Services will cease automatically at the expiry of the trial period or upon reaching any applicable usage cap (whichever is earlier) without any charge being incurred. No refund is available for any Fees charged following the commencement of a paid subscription where the Customer did not cancel before the end of the free trial period.
5.3 Customer cancellation. The Customer may cancel its subscription at any time through the account management portal or by providing written notice to Nimbata. Cancellation takes effect immediately upon submission. On the effective date of cancellation: (i) the Customer’s access to the Services ceases; (ii) any accrued usage-based charges for the current billing period are calculated on a pro-rata basis up to and including the cancellation date and charged to the Customer’s payment method on file at the time of cancellation — for the avoidance of doubt, no pro-rata calculation or refund applies to any subscription licence fee already paid —; and (iii) no further subscription fees will be billed for periods after the cancellation date. Where the Customer cancels its only or last active subscription under this Section 5.3, such cancellation shall also constitute termination of this Agreement, and the consequences set out in Section 13.6 shall apply accordingly.
5.4 Refunds and settlement on cancellation. Any accrued usage-based charges for a monthly subscription are settled on a pro-rata basis at the point of cancellation in accordance with Section 5.3; no refund is issued for any unused portion of a monthly subscription licence fee already paid. Annual subscriptions are non-refundable following cancellation, except to the extent required by applicable law. No refund is available for any unused portion of an annual Subscription Term.
5.5 Number porting. When porting telephone numbers out of the Nimbata platform, Nimbata reserves the right to pass through any carrier-imposed porting fees. Nimbata will notify the Customer of the applicable porting costs in advance.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Nimbata IP. As between the parties, Nimbata retains all right, title, and interest (including all intellectual property rights) in and to: (i) the Services, the platform, and the Documentation; (ii) any software, algorithms, models, and technology underlying the Services; (iii) any improvements, enhancements, or derivative works of the foregoing; and (iv) all Nimbata trademarks, trade names, and logos. No rights are granted to the Customer in the Services or Nimbata IP other than as expressly set out in this Agreement.
6.2 Customer IP. As between the parties, the Customer retains all right, title, and interest in and to Service Data and any Customer-owned trademarks, logos, or materials uploaded to the Services.
6.3 Feedback. If the Customer provides Nimbata with suggestions, ideas, or feedback regarding the Services (“Feedback“), the Customer grants Nimbata a perpetual, irrevocable, royalty-free, worldwide license to use, reproduce, and incorporate such Feedback into the Services or other products, without any obligation to the Customer.
6.4 Restrictions. The Customer shall not, and shall ensure that Authorized Users do not, to the maximum extent permitted by applicable law: (i) copy, modify, or create derivative works of the Services; (ii) reverse engineer, disassemble, or decompile the Services or any part thereof, except to the extent expressly permitted by applicable law; (iii) sublicense, sell, resell, transfer, or otherwise commercially exploit the Services; (iv) remove or alter any proprietary notices on the Services; or (v) use the Services to build a competitive product or service.
7. DATA PROTECTION
7.1 Data Processing Agreement and equivalent instruments. To the extent that Nimbata processes Personal Data on behalf of the Customer in connection with the provision of the Services, such processing shall be governed by the applicable DPA (including, where required by applicable Data Protection Laws, a Business Associate Agreement or equivalent instrument), which constitutes an integral part of this Agreement. Where more than one such instrument is in effect, each shall apply to the processing activities it governs. In the event of any conflict between this Agreement and the DPA (or any equivalent instrument) in respect of data protection matters, the DPA or equivalent instrument shall prevail.
8. DISCLAIMERS AND WARRANTIES
8.1 No Warranty. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NIMBATA AND ITS AFFILIATES, SUBCONTRACTORS, AND LICENSORS EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NIMBATA DOES NOT WARRANT THAT: (I) THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS; (II) ANY INFORMATION OR RESULTS OBTAINED THROUGH THE SERVICES WILL BE ACCURATE OR RELIABLE; OR (III) THE SERVICES WILL MEET THE CUSTOMER’S REQUIREMENTS.
8.2 Third-party links and services. The Services may contain links to, or integrate with, third-party websites or services. Nimbata has no control over such third-party services and makes no representations or warranties regarding their content, availability, or security. The Customer’s use of third-party services is at its own risk and subject to the third party’s terms and conditions.
9. LIMITATION OF LIABILITY AND INDEMNIFICATION
9.1 Exclusion of damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, INCLUDING LOSS OF PROFITS, REVENUE, GOODWILL, DATA, OR BUSINESS OPPORTUNITY, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 Aggregate liability cap. EXCEPT FOR THE CUSTOMER’S PAYMENT OBLIGATIONS AND EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER CLAUSE 9.4(a), TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S TOTAL AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY THE CUSTOMER TO NIMBATA IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9.3 Basis of the bargain. The parties acknowledge that the limitations of liability in this Section 9 reflect a reasonable allocation of risk and form an essential basis of the bargain between the parties, without which Nimbata would not have entered into this Agreement.
9.4 Indemnification. (a) By Nimbata. Nimbata shall defend, indemnify, and hold harmless the Customer and its officers, directors, employees, and agents from and against any third-party claims, losses, damages, and expenses (including reasonable legal fees) arising out of or relating to: (i) any claim that the Services, as used in accordance with this Agreement, infringe any third-party intellectual property right; or (ii) Nimbata’s gross negligence or wilful misconduct. Nimbata’s indemnification obligation in sub-clause (i) shall not apply to the extent the claim arises from: (A) the Customer’s use of the Services in breach of this Agreement; (B) Customer-provided content or Service Data; or (C) modifications to the Services not made by Nimbata. (b) By Customer. The Customer shall defend, indemnify, and hold harmless Nimbata and its officers, directors, employees, and agents from and against any third-party claims, losses, damages, and expenses (including reasonable legal fees) arising out of or relating to: (i) the Customer’s breach of this Agreement; (ii) the Customer’s violation of applicable law; (iii) Service Data, including any claim that Service Data infringes a third-party’s rights; (iv) the Customer’s use of the call-recording features in breach of applicable law; or (v) the Customer’s use of the AI-Powered Features in breach of applicable law or Section 11.
10. CALL RECORDING AND TRANSCRIPTION
10.1 Availability. Nimbata makes call recording and transcription features available at the Customer’s discretion. When enabled, Nimbata will create digital audio recordings or transcriptions of incoming telephone calls.
10.2 Customer compliance obligation and warranty. The laws governing notice and consent requirements for call recording vary by jurisdiction. Nimbata does not provide legal advice and makes no representation that any particular use of the call-recording features complies with applicable law. The Customer should seek independent legal advice before enabling call recording. The Customer is solely responsible for ensuring compliance with all applicable laws and regulations in every jurisdiction in which it uses the call-recording or transcription features, including (where required) obtaining prior, express, and legally sufficient consent from all callers and providing a legally compliant recording notice before or at the commencement of any recording. The Customer represents and warrants on a continuing basis that: (i) it has obtained all consents and provided all notices required by applicable law before enabling or using the call-recording or transcription features; (ii) its use of those features does not and will not violate any applicable wiretapping, eavesdropping, telecommunications, privacy, or data protection law; and (iii) it maintains adequate records of consents and notices sufficient to demonstrate compliance. The Customer shall promptly notify Nimbata in writing if it becomes aware of any actual or threatened regulatory inquiry, claim, or proceeding relating to its use of the call-recording or transcription features.
10.3 Customer authorization and instruction. By enabling the call-recording or transcription features, the Customer: (i) expressly authorizes and instructs Nimbata, acting solely as a technical service provider on the Customer’s behalf, to make, store, and process recordings and transcriptions in accordance with the Customer’s configuration; (ii) acknowledges that Nimbata acts only on the Customer’s instruction and exercises no independent judgment as to the lawfulness of any individual recording; (iii) represents that all instructions given to Nimbata to make recordings are lawful; and (iv) accepts sole responsibility for ensuring that all required notices are provided to callers and that all required consents are obtained prior to or at the commencement of recording. Nimbata shall be entitled to rely on the Customer’s instructions without independent inquiry into their lawfulness.
10.4 No Nimbata liability; Customer indemnification. To the fullest extent permitted by applicable law, Nimbata shall have no liability whatsoever arising out of or in connection with: (i) any use made by the Customer, its Authorized Users, employees, contractors, agents, or any third party of call recordings or transcriptions; (ii) any personal information or sensitive data contained in recordings or transcriptions; (iii) the Customer’s failure or alleged failure to comply with any applicable law relating to call recording, transcription, consent, or notice; (iv) any regulatory investigation, enforcement action, fine, penalty, or sanction imposed on the Customer or any third party in connection with the Customer’s use of the call-recording or transcription features; or (v) any third-party claim arising out of or relating to any recording or transcription made at the Customer’s instruction. Without limiting the foregoing, the Customer’s indemnification obligations under Section 9.4(b) expressly extend to all claims, losses, damages, fines, penalties, and expenses (including legal fees) arising from the Customer’s use of the call-recording or transcription features in breach of applicable law or this Agreement.
10.5 Storage and retention of recordings. Call recordings and transcriptions constitute Service Data and are subject to the DPA and Nimbata’s standard data retention practices as published in the Documentation. Nimbata shall have no obligation to retain recordings or transcriptions beyond the applicable retention period. The Customer is solely responsible for extracting, archiving, or otherwise preserving any recordings or transcriptions it requires for legal, regulatory, or business purposes before the expiry of the applicable retention period. Nimbata shall not be liable for the deletion of recordings or transcriptions in accordance with its standard retention schedule.
10.6 Nimbata right to suspend. Nimbata’s general right to suspend access to the Services is set out in Section 13.4. Without limiting that right, Nimbata may also suspend or disable the call-recording or transcription features specifically if it reasonably determines that: (i) the Customer’s use of those features creates a material legal, regulatory, or reputational risk for Nimbata; (ii) the Customer is using those features in violation of applicable law or this Agreement; or (iii) Nimbata receives a complaint, regulatory inquiry, or third-party claim arising from the Customer’s use of those features. Nimbata shall restore access to the suspended features promptly following the Customer’s demonstration, to Nimbata’s reasonable satisfaction, that the basis for suspension has been remedied. Any such suspension does not give rise to liability on the part of Nimbata or any right to a refund or service credit.
11. AI-POWERED FEATURES
11.1 Scope. This Section 11 applies to the AI-Powered features component of the Services, including (without limitation) automated sentiment analysis, call tagging and scoring, intent classification, AI-generated call summaries, and other artificial-intelligence or machine-learning outputs applied to call or interaction data (“AI Outputs”). To the extent of any conflict between this Section 11 and any other provision of this Agreement in relation to AI-Powered Features, this Section 11 shall prevail.
11.2 Nature of AI Outputs. AI Outputs are generated automatically by statistical models and are probabilistic in nature. They are provided for informational and operational convenience only and do not constitute legal, financial, psychological, or other professional advice. Nimbata does not warrant that AI Outputs will be accurate, complete, unbiased, or fit for any particular purpose. The Customer is solely responsible for verifying AI Outputs before relying on them for any business, employment, or other consequential decision.
11.3 Customer compliance obligations. The use of AI-Powered Features may be subject to applicable law, including Data Protection Laws, employment and labour laws, consumer protection laws, and sector-specific regulations governing the automated processing of personal data, profiling, and AI-assisted decision-making (including, where applicable, the EU AI Act and equivalent national legislation). The Customer is solely responsible for: (i) assessing whether the applicable legal framework in its jurisdiction permits or restricts its intended use of AI-powered features; (ii) obtaining any notices, consents, or authorizations required by applicable law before enabling AI-Powered Features on call or interaction data that includes Personal Data; (iii) ensuring that its use of AI Outputs in employment, HR, or consumer-facing decisions complies with all applicable anti-discrimination, data protection, and AI governance obligations; and (iv) maintaining adequate records of any consents or impact assessments required by applicable law.
11.4 Sentiment and scoring data. Where the Customer enables sentiment analysis, call scoring, or similar AI-powered features that assign a nominal or ordinal value to an individual’s emotional state or communication style: (i) the Customer acknowledges that such outputs constitute inferences about individuals and may qualify as Personal Data (including, in certain jurisdictions, as sensitive or “special category” data) under applicable Data Protection Laws; (ii) the Customer shall not use sentiment scores or similar AI Outputs as the sole or decisive basis for any decision that produces a legal or similarly significant effect on any individual, without implementing appropriate human review and safeguards as required by applicable law; and (iii) the Customer shall ensure that any notice provided to callers or end users discloses the use of automated sentiment analysis to the extent required by applicable law.
11.5 Voice-AI agents and autonomous interactions. Where the Customer deploys Nimbata’s voice-AI agent features to interact with callers or end users in a real-time or asynchronous conversational capacity: (i) the Customer is solely responsible for disclosing to any person interacting with a voice-AI agent that they are communicating with an automated system, to the extent required by applicable law (including any applicable prohibition on impersonating a human without disclosure); (ii) the Customer shall ensure that voice-AI agent interactions comply with all applicable telecommunications, consumer protection, AI and data protection laws; (iii) the Customer shall not configure voice-AI agents to make, or to facilitate the making of, representations that are false, misleading, or likely to constitute deceptive conduct under applicable law; and (iv) the Customer remains solely responsible for the content, accuracy, and lawfulness of any scripts, prompts, or instructions provided to the voice-AI agent.
11.6 MCP and third-party integrations. Where the Customer uses Model Context Protocol (MCP) server or client implementations, or any third-party integrations made available through the platform, to connect Nimbata’s AI-Powered Features with external systems, tools, or data sources: (i) the Customer is responsible for ensuring that any data flows to or from third-party systems comply with applicable Data Protection Laws, including the execution of any required data processing or transfer agreements with those third parties; (ii) Nimbata makes no representations or warranties regarding the performance, security, or availability of third-party systems accessed via MCP or other integration mechanisms; and (iii) the Customer shall not use MCP integrations to circumvent any access controls, usage restrictions, or rate limits applicable to the Services.
11.7 Prohibited uses of AI-Powered features. In addition to the prohibitions in Section 12.3, the Customer shall not, and shall ensure that its Authorized Users do not, use the AI-powered features to: (i) profile or monitor individuals on the basis of protected characteristics (including race, gender, religion, disability, or sexual orientation); (ii) generate, infer, or process biometric data or health-related data without the explicit consent of the individuals concerned and compliance with all applicable legal requirements; (iii) make fully automated employment decisions (including decisions to hire, dismiss, or materially alter the terms of employment of any individual) without implementing human review to the extent required by applicable law; or (iv) engage in any form of subliminal or manipulative AI-driven communication targeted at vulnerable individuals.
11.8 No Nimbata liability for AI Outputs; Customer indemnification. To the fullest extent permitted by applicable law, Nimbata shall have no liability arising out of or in connection with: (i) the accuracy, completeness, or fitness for purpose of any AI Output; (ii) any decision made or action taken by the Customer or any third party in reliance on an AI Output; (iii) any claim that the Customer’s use of AI-powered features violates applicable law, including Data Protection Laws or AI-specific legislation; or (iv) any regulatory investigation, enforcement action, fine, penalty, or sanction arising from the Customer’s use of AI-powered features. The Customer’s indemnification obligations under Section 9.4(b) expressly extend to all claims, losses, damages, fines, penalties, and expenses (including legal fees) arising from the Customer’s use of AI-powered features in breach of applicable law or this Agreement.
11.9 Nimbata right to suspend AI-powered features. Nimbata reserves the right to suspend or disable any AI-powered feature, in whole or in part, immediately on written notice to the Customer if Nimbata reasonably determines that: (i) the Customer’s use of those features creates a material legal, regulatory, or reputational risk for Nimbata; (ii) the Customer is using those features in violation of applicable law or this Agreement; or (iii) Nimbata receives a complaint, regulatory inquiry, or third-party claim arising from the Customer’s use of those features. Nimbata shall restore access promptly following the Customer’s demonstration, to Nimbata’s reasonable satisfaction, that the basis for suspension has been remedied. Suspension under this clause shall not give rise to any liability on the part of Nimbata or any right to a refund or service credit.
12. ACCEPTABLE USE
12.1 Permitted use. The Services are made available for lawful, professional business purposes only. The Customer shall ensure that its Authorized Users comply with this Section 12 and with Nimbata’s Acceptable Use Policy (“AUP“) as published on Nimbata’s website and updated from time to time. Nimbata will provide at least thirty (30) days’ written notice of any material changes to the AUP.
12.2 Testing obligation. Nimbata strongly recommends that the Customer test the Services prior to any live campaign or public deployment to verify functionality and quality. Nimbata is not liable to reimburse the Customer for any advertising or campaign costs incurred as a result of the Customer’s failure to conduct adequate pre-launch testing.
12.3 Prohibited Uses. The Customer shall not, and shall ensure that its Authorized Users do not, use the Services to: (i) violate any applicable law or regulation, including telecommunications, wiretapping, privacy, or data protection laws; (ii) transmit unsolicited commercial messages (spam) or engage in any activity that violates anti-spam laws; (iii) record, store, or process calls without the legally required consent of all parties in the relevant jurisdiction; (iv) re-sell, sublicense, or otherwise make the Services commercially available to third parties except as expressly permitted in writing by Nimbata; (v) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (vi) attempt to gain unauthorized access to the Services or their related systems or networks; (vii) use the Services in any manner that could damage, disable, overburden, or impair the Services or Nimbata’s infrastructure; (viii) use the Services to build a competing product or service; or (ix) permit any person under the age of 16 to access or use the Services.
12.4 Emergency services exclusion. The Services are not designed or intended to support or carry emergency calls to emergency services (including 999, 911, or any equivalent emergency number). The Services rely on third-party networks and will not route to local emergency services. The Services will not be available if the Customer experiences a power or internet outage, or if the Services are suspended or terminated. The Customer is solely responsible for maintaining an alternative telecommunications solution capable of placing emergency calls, and must provide clear written notice to all Authorized Users of these limitations. The Customer shall indemnify and hold harmless Nimbata against any claim arising out of the Customer’s failure to provide such notice or maintain such alternative arrangements.
13. TERM AND TERMINATION
13.1 Term. This Agreement commences on the date the Customer first accepts it and continues until all Subscription Terms have expired or been terminated.
13.2 Customer termination for convenience. The Customer may terminate this Agreement or any Order Form at any time in accordance with Section 5.3.
13.3 Termination for cause. Either party may terminate this Agreement immediately on written notice if the other party: (i) materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice describing the breach; or (ii) becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to any insolvency, bankruptcy, or administration proceedings.
13.4 Suspension. Without prejudice to Nimbata’s rights under Section 4.5, Nimbata may suspend the Customer’s access to the Services immediately on written notice if: (i) the Customer materially breaches the AUP or Section 12; or (ii) the Customer’s continued use creates a security or legal risk to Nimbata or other customers. Nimbata will restore access promptly upon the Customer’s cure of the applicable breach.
13.5 Nimbata service modifications, plan changes, and discontinuation. Nimbata reserves the right to modify or update the features and functions of the Services from time to time, provided that Nimbata will not materially decrease the overall functionality of the Services without reasonable advance notice to the Customer. Nimbata will use commercially reasonable efforts to provide information necessary for the Customer to continue using the Services following any material change. Where Nimbata introduces new pricing or new subscription plans, Customers on existing plans will generally be grandfathered to their current plan and pricing for the duration of their then-current Subscription Term. Where Nimbata determines that a legacy plan must be retired and migrated to an equivalent active plan, Nimbata will: (i) provide the Customer with at least sixty (60) days’ prior written notice of the required migration; (ii) offer the Customer an incentive to self-migrate to the applicable active plan within that period; and (iii) if the Customer has not self-migrated by the end of the notice period, migrate the Customer’s Account to the applicable active plan automatically. Nimbata will use reasonable efforts to ensure that any such migration does not result in a material reduction in the features or functionality available to the Customer relative to their prior plan. In the event of a full discontinuation of the Services, Nimbata will provide the Customer with at least thirty (30) days’ prior written notice and will provide the Customer with a pro-rata refund of any prepaid Fees for the affected period.
13.6 Effect of termination. Upon expiry or termination of this Agreement: (i) the Customer’s right to access and use the Services terminates immediately and Nimbata will lock the Customer’s Account; (ii) each party shall promptly return or destroy the other party’s Confidential Information; (iii) Nimbata shall make the Customer’s Service Data available for export for a period of ninety (90) days following termination, after which Nimbata may permanently delete the Service Data without further notice; the Customer is solely responsible for exporting any Service Data it requires before the expiry of that period; and (iv) any provisions that by their nature should survive (including Sections 4, 5.4, 6, 7, 8, 9, 10, 11, 12, 13.6, 14, 15, 16, and 19.7, and the DPA) shall survive termination or expiry.
14. CONFIDENTIALITY
14.1 “Confidential Information” means any non-public information disclosed by one party (the “Disclosing Party“) to the other (the “Receiving Party“) in connection with this Agreement that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Nimbata’s Confidential Information includes the Services, pricing, and technical documentation. The Customer’s Confidential Information includes Service Data and Account information.
14.2 Obligations. The Receiving Party shall: (i) use the Disclosing Party’s Confidential Information only as necessary to exercise its rights or perform its obligations under this Agreement; (ii) protect Confidential Information using at least the same degree of care it uses to protect its own confidential information, and in no event less than reasonable care; and (iii) not disclose Confidential Information to third parties without the Disclosing Party’s prior written consent, except to its employees, contractors, and advisors who have a need to know and are bound by confidentiality obligations no less protective than those in this Section.
14.3 Exceptions. Confidentiality obligations do not apply to information that: (i) is or becomes publicly known other than through the Receiving Party’s breach of this Agreement; (ii) was in the Receiving Party’s possession prior to receipt from the Disclosing Party; (iii) is received from a third party without restriction; or (iv) is required to be disclosed by law or court order, provided that the Receiving Party gives the Disclosing Party advance written notice (where permitted) and cooperates with the Disclosing Party in seeking a protective order.
15. GOVERNING LAW AND DISPUTE RESOLUTION
15.1 Governing Law. This Agreement is governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, United States, without regard to its conflict of law principles.
15.2 Jurisdiction. Each party irrevocably submits to the exclusive jurisdiction of the state and federal courts located in Suffolk County, Massachusetts, United States, for the resolution of any dispute arising out of or relating to this Agreement. Each party waives any objection to the personal jurisdiction of or venue in such courts.
15.3 Injunctive relief. Nothing in this Section 15 shall prevent either party from seeking injunctive or other equitable relief in any court of competent jurisdiction to protect its intellectual property rights or Confidential Information.
16. USER IDENTIFICATION AND SECURITY
User credentials (usernames and passwords) are the Customer’s primary means of preventing unauthorized access to the Services. The Customer is responsible for maintaining the security and confidentiality of all credentials issued to Authorized Users. In the event of suspected fraudulent use of the Services or a security incident, Nimbata will work with the Customer to deactivate compromised accounts and issue replacement credentials. The Customer must notify Nimbata immediately upon discovering or suspecting any unauthorized access to or use of its Account. The Customer acknowledges that the internet and third-party telecommunications networks are inherently insecure. Accordingly, Nimbata is not liable for any interception, alteration, or loss of Service Data while in transit via the internet or a third-party telecommunications network, except to the extent caused by Nimbata’s gross negligence or wilful misconduct.
17. CUSTOMER REFERENCE AND LOGO
The Customer hereby grants Nimbata a limited, royalty-free, non-exclusive licence to display the Customer’s name and logo on Nimbata’s website and in marketing and public relations materials solely to identify the Customer as a user of the Services. The Customer may withdraw this consent at any time upon thirty (30) days’ written notice to Nimbata, whereupon Nimbata shall cease to use the Customer’s name and logo in new materials (but may continue to use materials already in distribution for a reasonable period thereafter).
18. SUPPORT
18.1 Basic Support. Nimbata provides Basic Support to all Customers to assist with questions about the Account and the Services. Basic Support is available via the channels and during the hours published on Nimbata’s website. Basic Support does not include any guaranteed response time or resolution commitment.
18.2 Customized Support. Implementation Support, Premium Support, and Onboarding services (collectively, “Customized Support“) are available at additional cost. Customers wishing to procure Customized Support should contact info@nimbata.com to discuss terms and pricing.
18.3 Support scope and limitations. The support channels available to the Customer depend on the Customer’s subscription plan, as set out on Nimbata’s website or in the applicable Order Form. By way of example, in-app chat support may not be available on entry-level plans. Nimbata may, in its discretion: (i) restrict support services to Authorized Users designated as support contacts on the Account; (ii) limit the scope of topics addressed under the applicable support tier; (iii) refer Customers to help articles or guided tutorials for matters addressed by those resources; and (iv) rate-limit support interactions where a Customer is making excessive demands on the support function. Nimbata will exercise this discretion reasonably and in good faith. Nimbata will publish the support channels and hours available for each subscription plan on its website and will provide at least thirty (30) days’ notice of any material reduction in support channels.
18.4 Scheduled maintenance. Nimbata may from time to time interrupt or affect the Services for routine or emergency maintenance. Where planned maintenance is anticipated to materially affect the Services, Nimbata will use commercially reasonable efforts to provide the Customer with reasonable advance notice by email or via the platform. Nimbata will use commercially reasonable efforts to schedule planned maintenance during periods of low usage and to minimize disruption to the Customer.
19. GENERAL PROVISIONS
19.1 Entire Agreement. This Agreement, together with all Order Forms and any addenda incorporated by reference, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements, representations, and understandings. In the event of a conflict between this Agreement and an Order Form, the Order Form shall prevail to the extent of the inconsistency.
19.2 Amendments. Nimbata may update or modify this Agreement from time to time. Nimbata will notify the Customerby email at least thirty (30) days prior to any material changes taking effect. The Customer’s continued use of the Services after the effective date of a modification constitutes acceptance of the modified Agreement. If the Customer objects to any modification, it may terminate this Agreement by written notice before the effective date of the change. Notwithstanding the foregoing, where a material update arises from a change in applicable law, regulation, or a telecommunications provider requirement, Nimbata will provide such notice as is reasonably practicable under the circumstances.
19.3 Assignment. The Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder without Nimbata’s prior written consent. Nimbata may assign this Agreement in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, upon notice to the Customer. This Agreement is binding on and inures to the benefit of the parties’ successors and permitted assigns.
19.4 Force majeure. Neither party shall be liable for any failure or delay in performance caused by circumstances beyond its reasonable control, including acts of God, natural disasters, pandemic, war, terrorism, government action, or internet or telecommunications failures.
19.5 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement remains in full force and effect.
19.6 Waiver. No failure or delay by either party in exercising any right under this Agreement shall operate as a waiver of that right.
19.7 Anti-corruption and trade compliance. Each party warrants that it will comply with all applicable anti-corruption, anti-money-laundering, economic and trade sanctions, export control, and other international trade laws and regulations in the jurisdictions applicable to the Services (collectively, “Trade Compliance Laws“), including (without limitation) those of the United States. Each party represents that neither it nor, to its knowledge, any of its officers or employees has made, offered, or authorized any payment or transfer of value in violation of Trade Compliance Laws. The Customer shall promptly notify Nimbata in writing of any actual or potential violation of Trade Compliance Laws in connection with its use of the Services. Each party represents that it is not, and in the Customer’s case its Authorized Users are not, listed on any applicable government sanctions or prohibited-parties list. Either party may terminate this Agreement immediately on written notice if the other party is in material breach of its obligations under this clause.
19.8 Relationship of the parties. The parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture, agency, or employment relationship between the parties.
19.9 Notices. All formal notices under this Agreement shall be in writing and delivered by email to the email addresses set out in the Order Form or on the Account. Notices to Nimbata must be sent to: support@nimbata.com.
19.10 Geographic availability. Services described on Nimbata’s website may not be available in all countries or regions. Nimbata makes no representation that the Services are appropriate or available for use in any particular location.
20. CONTACT INFORMATION
Nimbata, LLC | General: support@nimbata.com | Data protection: privacy@nimbata.com | Website: www.nimbata.com
Last Updated: September 2026