Terms & Conditions.

The Terms and Conditions (the “Terms”) described in this section apply to the web sites and the Services provided by Nimbata, its affiliates and subcontractors. The terms Nimbata or “we” or “our” refer to the owner of this web site. Usage of our web site or services imply that Customer agrees with the described Terms and Conditions. All trademarks which are included in this web site and are not the property of, or licensed to Nimbata, are acknowledged. All content on this web site is the property of Nimbata, LLC and it is copyright protected by the United States laws.

Any redistribution or reproduction of part or all of the contents of this web site in any form is prohibited from being used for commercial purposes. Nimbata encourages web site links to its site. However, links must be removed after request from Nimbata.

Nimbata provides its services subject to the terms and conditions contained in these Terms of Service. To become eligible to use Nimbata services, you must review and accept the Terms  when you create your account or other mechanisms provided. Please review the Terms carefully. Once accepted, these Terms become a binding legal commitment (“Agreement”).

Definitions

“Account”: An Account is created in app.nimbata.com or through the website of any whitelabel partner. Customer completes sign up questions and provides payment information to create an Account.

“Customer”: The individual accepting the Terms or the entity such individual represents. If you are accepting these Terms for a company or agency, you hereby warrant that you (1) have the legal right and authority to enter into these Terms for the company as named in the Account, (2) acknowledge that you are accepting these Terms on behalf of a company or other entity (3) you are binding the company or other entity to the Terms and (4) if you becomes no longer affiliated with the company or entity in which you entered the agreement under, then the account and associated content and data is maintained as the property of the company or entity, and the authorized officers of that organization.

“Data Protection Laws”: means applicable legislation protecting the personal data of natural persons and the privacy of electronic communications, including in particular (up to 25 May 2018) the national legislation implementing Directive 95/46/EC (and, from and including 25 May 2018), Regulation (EU) 2016/679 (“GDPR”) and any national legislation with supplements the GDPR, together with national legislation implementing Directive 2002/58/EC (and any legislation which replaces .Directive 2002/58/EC).

“Services”: Nimbata Services consist of one or more of the following: a web-based interface, website number insertion, information about the caller, call forwarding, browser phone, advertising channel information for incoming phone calls, call data access, call data storage as well as software maintenance and upgrades and customer support.

“Standard Contractual Clauses”: means the Standard Contractual Clauses (processors) for the purposes of Article 26(2) of Directive 95/46/EC set out in Decision 2010/87/EU or as revised or updated from time to time by the European Commission.

Acceptance

Our application offers call tracking, call routing, call recording, call classification, call transcriptions, caller details, advertising channel information for incoming phone calls and customer support, that enable Customers to track the performance of their marketing activities (“Products” or “Services” or “Site”).

Customer will be solely responsible for all use (whether or not authorized) of the Nimbata Services under its account. Customer will ensure that it has a an agreement with each End User (“End User Agreement”) that enables Nimbata to use all Customer Data as necessary to provide the Services and that protects Nimbata rights to the same extent as the terms of this Agreement. The End User Agreement must include terms concerning disclaimers, acceptable use, and, where the Customer is subject to the Data Protection Laws, data protection. Nimbata agrees that, subject to the foregoing requirements, the End User Agreement need not specifically refer to Nimbata. Customer will notify Nimbata if it becomes aware of any breach of the terms and will take all reasonable precautions to prevent unauthorized access to the Services.

We collect details on the callers that call the Customer through the phone numbers that are provisioned on our platform. Such information includes the caller’s phone number, the name displayed on the Caller ID (when available), audio recordings, call records, transcriptions, website activity, and other data from Customer’s data sources (when such permission is granted), personal data sources (social contacts, email inboxes, etc, when such permission is granted), and third party data services (collectively, “Service Data”). Customer agrees that we and the service providers that we utilize to assist in providing the Service to Customers shall have the right to access the Customer Account and to use, modify, reproduce, distribute, display and disclose Service Data to the extent necessary to develop, enhance, and provide the Service, including, without limitation, in response to Customer support requests. Compliance with all statutes, ordinances, regulations and requirements of all government bodies, at all levels, is a condition for using our services.

Ordinances And Statuses

Services described on our sites may or may not be available in all countries or regions of the world.

Customer access to and use of this Site are subject to these terms (“Terms”), and agrees to use our Service in accordance with all applicable guidelines as well as all state and federal laws that the Services are subject to. If Customer does not accept and agree to be bound by any of these Terms of Use, the Customer is not authorized to access or otherwise use this Site or any information or Content contained on this Site.

Compliance with all statutes, ordinances, regulations and requirements of all government bodies, at all levels, is a condition for using our services.

Nimbata will cooperate and provide requested and available information to any government authority after a written request, as required by the law.

Nimbata will provide available information to government authorities for the purpose of closing any Nimbata issues related to the service provided for Customer.

Indemnification

Nimbata, its affiliates, its subcontractors/vendors and their employees, at all levels, are not liable for any losses, damages, claims, obligations, liabilities, expenses of any type resulted from the usage of our services in connection with the Customer Account.

Data Protection

The terms “Controller”, “Data Subject”, “Personal Data Breach”, “Process” and “Processor” have the meanings given to them by the Data Protection Laws. Application of Data Protection Laws: Where the Data Protection Laws apply to the delivery of the Services under these Terms, the parties agree that Nimbata shall act as a Processor, and that Customer shall either be (i) a Controller; or (ii) another Processor, subject to a separate agreement with the Controller of the Customer Personal Data.

Nimbata obligations shall include:

• Process Customer Personal Data for the purposes of providing the Services and as otherwise necessary to perform its obligations under these Terms.
• Ensure that persons authorized to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
• Implement technical and organizational measures designed to ensure an appropriate level of security for Customer Personal Data, in accordance with Article 32 of the GDPR.
• Disclosing and notifying Customer of any intended changes to its use of Sub-Processors by posting them on Nimbata Privacy page.
• Remaining liable to the Customer for any failure by each Sub-Processor to fulfil its obligations in relation to the Processing of the Customer Personal Data.

Customer expressly acknowledges that Nimbata’s processing facilities are located in the United States of America.  To ensure compliance under the Data Protection Laws, Customer (as “data exporter”) and Nimbata (as “data importer”), with effect from the commencement of the relevant transfer, hereby enter into the Standard Contractual Clauses in respect of any transfer from Customer to Nimbata (or onward transfer) where such transfer would otherwise be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address Data Protection Laws). Appendix 1 to the Standard Contractual Clauses shall be deemed to be pre-populated with the following relevant sections:

1. Subject matter and duration of the Processing of the Customer Personal Data as set out in the Terms.
2. The nature and purpose of the Processing of the Customer Personal Data: Nimbata is engaged to provide the Services to Customer which involve the Processing of Customer Personal Data.  The scope of the Services are set out in the Terms, and the Customer Personal Data will be Processed by Nimbata to deliver those Services and to comply with the Terms.
3. The types of the Customer Personal Data to be Processed: Any personal data introduced by Customer, or Customer’s end users, onto the Nimbata platform, including (by way of example) names, telephone numbers, contents of telephone conversations.
4. The categories of Data Subject to whom the Personal Data relates: Customer’s employees or end users, or the customers or employees of Customer’s end users.
5. The obligations and rights of Customer as set out in these Terms.

Processing operations are deemed to be those described in these Terms.  Appendix 2 to the Standard Contractual Clauses shall be deemed to be pre-populated with the following “Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood for the rights and freedoms of natural persons, Nimbata shall implement appropriate technical and organizational measures as set forth in these Terms.

Disclaimers

Nimbata strives to produce accurate and up-to-date information. Given the limitations of the state of the art of the existing technologies, Nimbata makes no warranty or guarantee, expressed or implied, for the completeness, accuracy, reliability, performance, suitability, error-free, virus/malicious-software-free or availability with respect to the provided information and services. Nimbata, its affiliates and its subcontractors are not liable for any such inaccuracies or errors to the fullest extent permitted by the law.

Nimbata is not liable for any problems with the links to non-Nimbata web sites or their contents for the links included in our site.

Fees And Payments

By selecting a paid service, Customer agrees to pay Nimbata the subscription fees indicated for that service. In the event where the average call duration (per destination) exceeds 3 minutes, Nimbata may incorporate an additional line item(s) to the invoice to reconcile for “overages”. In such circumstance, the following formula will be applied: (observed average call duration – 3 minutes) * # of calls for period * (cost of answered call to the destination / 3). Payments will be charged on the day Customer signs up for a service and will cover the use of that service for a monthly or annual period as indicated or will be invoiced after the period of use . Customer agrees to allow Nimbata payment affiliates to process and/or store Customer payment card information. Customer also agree to pay the applicable fees for the Products and Services as they become due plus all related taxes, and to reimburse us, our payment affiliates and any service providers for all collection costs and interest for any overdue amounts.

Cancellations And Refunds

Early cancellation or termination of annual subscriptions to the Service will be fully refunded retroactively when used for more than 60 days.

Testing

Nimbata highly recommends that Customers test their system before any advertising in order to ensure the quality of Customer advertising campaign. Nimbata is not liable to reimburse a service subscriber for advertising costs, which are the result of failing to execute the needed tests before involving the public.

Call Recording & Transcriptions

Nimbata makes available the ability for our clients to record or transcribe incoming telephone calls when a calling party initiates a call towards a tracking number. Nimbata will, at the Customers’ discretion, create a digital audio recording of the telephone call or a transcription of it. The laws regarding the notice and notification requirements of such recorded conversations vary by jurisdiction. Customers are responsible for applying the local laws in the relevant jurisdiction when using this feature.

If Customers choose to record telephone calls, Customer expressly agree and acknowledge to authorize Nimbata to make incoming call recordings on the Customer’s behalf and that Customer either shall play a voice message notifying the caller that the call is being recorded prior to the call or ensure that the caller is provided with the necessary warning about the presence of any recordings.

Nimbata shall have no liability whatsoever in respect of any use made by Customer, Customer employee, contractor, officer, agent, authorized representative or other third party, of the recordings and its contents, and/or of any personal information.

User Identification Names And Passwords

User identification names and passwords are the keys for preventing unauthorized use of the Services. In the event of fraudulent use of the Services, Nimbata will take steps to deactivate the Customer’s account(s) or help change identification name and password.

Acceptable Use

Services may be used only for lawful purposes and may not be used for any illegal activities (“Acceptable Use Policy”). Using the Services in an illegal, abusive or any other manner that interferes with or diminishes others’ use and enjoyment of the Services is prohibited. We may in our sole discretion determine whether Customers are in violation of this Acceptable Use Policy. Nimbata expressly disclaims any liability for Misuse of the Services. Violation of this Acceptable Use Policy may result in the immediate suspension or termination of the Customer account, as well as civil and/or criminal liability. We reserve the right to change the Acceptable Use Policy from time to time without notice by posting changes to our Site.

Customer accept that the Services are provided for professional use only, and agree that the use of the Services shall not include any of the following (this is not an exhaustive list):

• Participating in a Denial of Service attack on our services or any third parties.
• Attempting to break or bypass any security mechanism in our Services.
• Using our Services to manipulate phone-based systems.
• Engaging in fraud.
• Promoting or engaging in illegal activities.
• Collecting information about others, without their consent.
• Attempting to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services.

Use Of Customer Name And Logo

Customer hereby grants Nimbata a royalty-free, nonexclusive, limited license to use the name and logo of Customer on the Nimbata website or in other public relations materials to include Customer as a customer of Nimbata. Customer may terminate such authorized use upon 30 days written notice.

Service Cancellation

Nimbata reserves the right to modify, suspend or discontinue the offering of this web site and any of the provided services with or without cause. Prior to uspending or discontinuing the service Nimbata will notify its customers with a written notice.

Customer reserves the right to cancel the subscription to any of our services after sending a written a cancellation notice at least one month in advance.

Support

Nimbata Basic Support (“Basic Support”) is available to Customers to help them with questions about their account and the Service.

Basic Support is different from Implementation Support, Premium Support, or Onboarding (“Customized Support”). To request additional support services, customers should send an inquiry to info@www.nimbata.com to discuss pricing and options.

Nimbata may in its sole discretion determine the methods and channels for the Basic Support offering. Customers may contact Basic Support to ask questions about the Service, report issues, or even to recommend new features. Basic Support does not come with any response time or resolution guarantees.

The Nimbata support team can provide support only to authorized users of an Account. Nimbata may in its sole discretion limit support services to only individuals designated as authorized support contacts and/or may limit what topics can be covered based on the role the user has in the account.

In an effort to assist Customers with their inquiry as efficiently and accurately as possible, Basic Support agents may refer Customers to web accessible help articles or guided tours for issues that are addressed by those articles as a resolution to the issue. If Customer wishes to instead have personalized walk throughs of those tutorials, the support rep can connect them with a sales rep to review Customized Support options.

Nimbata has the discretion to limit the frequency and channels in which a Customer can contact Basic Support. If Nimbata determines that a Customer is requesting an excessive amount of time from Nimbata Support, Nimbata may rate limit the number of inquiries responded to from that Customer or refuse to provide service to them.

Changes To The Terms And Conditions

Nimbata reserves the right to revise the Terms and Conditions. Nimbata will notify the subscribers of its services about up-coming changes via e-mail at least one month in advance. Changes may also apply to charge ratings. The latest posting on the web site supersedes all previous releases.

Applied Laws

Nimbata, LLC is an organization of the state of Massachusetts, United States. Any disputes related to the Terms and Conditions will be exclusively dealt by the courts of Massachusetts,United States.

Contact Information

Nimbata, LLC | support@www.nimbata.com

Last Updated: Oct 2020