Nimbus Health Terms of Service
TERMS OF SERVICE
These Terms of Service (“Terms”) govern your access to and use of the Services (as defined below). Please read these Terms carefully.
By clicking “I accept” or ticking an “I agree” box during your first log-in to the Services or otherwise downloading or using any part of the Services or when we update the Terms, you confirm your acceptance to be bound by the Terms. Upon your acceptance, the Terms form a binding agreement between you (the “User”, “you”) and Nimbus Health Inc and its subsidiaries (“Nimbus”).
If you do not agree to be bound by the Terms, you are not permitted to use or access the Services.
In these Terms, the following terms have the meanings given.
“Services” means the Nimbus digital health technology platform which includes medication use and lung function Sensors, Software and related data services, all of which constitute a services platform which lets consumers or health care professionals track respiratory health.
“Sensor(s)” mean(s) inhaler “add-ons” (e.g., Hailie devices), bluetooth nebulizers (e.g., Yirdoc’s nebulizer), smart pill bottles (e.g., Pilleve’s pill bottle), spirometers (e.g., MIR spirometers), CPAP/BiPAP machines (e.g., ResMed, Respironics devices), and any other hardware tools Nimbus Clinic doctors may deem appropriate for monitoring patients and improving patient care.
“Software” means Nimbus’s proprietary software, including without limitation: mobile and PC applications; websites and web-based portals e.g., www.joinnimbus.com, portal.joinnimbus.com, and their instances (each a “Website”); and any other firmware, software and content provided by Nimbus to help monitor and improve care. The Software also includes all services that are available to the users of the Software or which support the operation of the Software.
TERM
1.1. These Terms commence on the date you accept them and continue until terminated in accordance with clause 16, unless we change or update them in accordance with clause 2.
1.2. Where you install or re-install the Software, your use of the Services is subject to the most recent version of the Terms on the date that you install or re-install the Software. (You are required to accept the most recent version of the Terms during your first log-in to the installed/re-installed Software).
CHANGES TO THESE TERMS
2.1. From time to time, subject to applicable law, we will update these Terms to reflect changes in the law or advances in technology or add information about new features or services. We will notify you at least 10 days in advance before we make material changes to these Terms so that you have time to review them and decide whether you would like to continue to use the Services under the new Terms.
2.2. Where we change the Terms, we will notify you by any reasonable means, including by posting the new Terms on our Websites or through in-App notifications.
2.3. The new Terms will be effective on the date you: accept them or use, access (or continuing to use or access) the Services.
2.4. The new Terms will not apply to any legal action between you and us commenced prior to the Effective Date. Those disputes are governed by the Terms in effect on the date that the events giving rise to the dispute occurred.
USER ACCOUNT
3.1. To access the Services, you must first set up a user account (“Account”).
3.2. You must maintain the security and confidentiality of the username and password for your Account and ensure that they are not shared with or accessed by any other person. Nimbus is not liable for any loss or damage caused by your failure to maintain confidentiality of your username and password. You are responsible for all activity in your Account.
If you are a Patient:
3.3. You can create the Account by providing us with, at minimum, your email address and a password, inhaler type and Sensor serial number, if you have or order a Sensor.
3.4. You may choose to authorize a third party (your Healthcare Professional (as defined below), your family member, etc.) to access your Account to help you manage your condition. Should you do so, the person may have access to all Data (as defined below) relating to you. We are not responsible or liable for any loss or damage caused by such third party accessing your Account or for any privacy breaches caused by any such third party.
If you are a Healthcare Professional:
3.5. “Healthcare Professional” means a healthcare provider or a healthcare practitioner including, without limitation a clinician, principal investigator, investigator, general practitioner, pharmacist, nurse, caregiver, healthcare educator, clinical research organization, research institution.
3.6. We will provide you with a secure log-in (username and password). Subject to a separate agreement, you may be given different levels of patient Account creation and access rights.
3.7. Prior to creating a patient Account, you warrant and represent that:
a) you have obtained all necessary valid consents from the patient (or their guardian or legally authorized representative), including their consent to the collection and processing of their personal information by Nimbus in accordance with Nimbus’s Privacy Policy;
b) you will not submit any personal information to us without a valid consent from the patient; and
c) if you are using the Services for clinical research, you have obtained all necessary human research ethics approvals to conduct the clinical research.
Minimum age to create an Account:
3.8. You represent that you are at least the age of majority in your place of residence and that all information you submit is accurate.
3.9. Minors' Accounts may only be created by their parents or guardians or Healthcare Professionals, with appropriate prior consents.
SERVICE REQUIREMENTS
4.1. To access the Services, you may need to maintain (at your expense) an adequate internet connection, data transfer capacity, and any compatible devices with updated software which may be required for your access to the Services. You are also responsible for security measures on your devices.
4.2. If you are accessing the Services via an App you must ensure that the App regularly uploads data to the Website by enabling wireless or mobile data use for the App. Failure to do so may result in an incomplete data set, or lost data.
PERMITTED USE
5.1. Subject to your compliance with the Terms, we grant you a personal, non-exclusive, non-transferable, revocable, limited license, without the right to sublicense, to access and use the Services, solely for the purpose of monitoring your (if you are a patient) or your patients’ (if you are a Healthcare Professional) medication adherence and lung function (“Designated Purpose”).
5.2. You must use the Services for their Designated Purpose only, in accordance with any documentation we provide to you in any product manual, packaging or instructions for a Sensor or Software.
PROHIBITED USE
6.1. You agree you WILL NOT:
a) commercially exploit the Services, Sensors or the Software or any of their elements;
b) reverse engineer, disassemble, or in any way interfere with Sensors (or attempt, encourage, or support anyone else’s attempt to engage in such activities);
c) use, display, mirror or frame the Software or any element of the Software;
d) transfer, assign, sell, convey, distribute, market, make available, license, sublicense, or in any way give access to third parties to: the Sensors, the Software, including your own or any other person’s Account, or any passwords or usernames required for accessing the Account, except where access is given pursuant to section 3.4 above;
e) engage in application service provider services or time-sharing arrangements with respect to the Software (unless expressly authorized by us in writing to do so);
f) connect the Software with any device that is not manufactured, distributed, or sold by or on behalf of Nimbus (such as a “knock off” or counterfeit version of our Sensors) other than a mobile device or computer;
g) copy the Software or any part of it, except as expressly permitted by Nimbus in writing, or reproduce, translate, adapt, modify or create derivative works based on the Software by any means;
h) merge, integrate or combine the Software with any other software;
i) circumvent, decipher, decompile, reverse engineer, disassemble, decrypt, extract, attempt to derive the source code of any element of the Software or in any way interfere with (or attempt, encourage, or support anyone else’s attempt to engage in such activities) any of the Software;
j) bypass, circumvent, penetrate, deactivate or interfere with any access control or security measures or usual operation of the Services or attempt to obtain access to any Data (as defined below) to which such measure is intended to prevent access;
k) interfere or attempt to interfere with proper working of, or attempt to probe, scan, test the vulnerability of any element of the Services;
l) alter in any way the automatic data upload into portal.joinnimbus.com from other parts of the Services;
m) use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Services Content (defined below); or
n) remove, change or obscure any proprietary rights’ notices incorporated in or accompanying any element of the Services.
Other Prohibited Content and Activities:
6.2. You must not access, use, or attempt to access or use the Services to take any action that could harm us or any person or entity (a “person”) or use the Services in a manner that violates any laws. For example, and without limitation, you must not:
a) impersonate any person or falsely state or otherwise misrepresent your credentials, affiliation with any person, or the origin of any information you provide;
b) engage in unauthorized spidering, scraping, or harvesting of content or information, or use any other unauthorized automated means to compile information;
c) obtain or attempt to gain unauthorized access to other computer systems, materials, information or any services available on or through the Services;
d) upload or otherwise transmit any communication, software or material that contains a computer virus or is otherwise harmful to us, or other users of the Services;
e) store or transmit inappropriate content (as determined by us in our sole discretion), e.g. content that is unlawful, illegal, infringing on others’ intellectual property rights, misleading, libelous, obscene, abusive, intimidating or breaching another person’s privacy rights; or
f) engage in any other conduct that in any way interferes with another user’s access or enjoyment of the Services, or that, in our sole judgment, exposes anyone to any liability, damages, or detriment of any type.
6.3. Violations of system or network security and certain other conduct may result in civil or criminal liability.
YOUR SUBMISSIONS
7.1. We may from time to time offer areas in the Services where you and other users can post or otherwise submit suggestions, ideas, notes, concepts, information, or other content (collectively “Submissions”). You own and are responsible for your Submissions, but by submitting them, you grant Nimbus Health Inc and our designees a worldwide, irrevocable, perpetual, non-exclusive, royalty-free, fully sub-licensable, transferrable, license to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform and otherwise exploit your Submission (or any portion thereof) in all formats and distribution channels now known or hereafter devised (including on third-party sites and services) for any purpose without further notice to or consent from you. You hereby waive any moral rights you may have in your Submissions. You are not entitled to any payment if we use one of your Submissions. All Submissions are deemed non-confidential and non-proprietary.
7.2. By submitting a Submission, you represent and warrant that:
a) your Submission is true and accurate;
b) you own or otherwise control all of the rights to your Submission, including copyrights and trademarks;
c) your Submission is not offensive and does not violate rights of any other person or entity or applicable laws or regulations;
d) you have obtained all necessary permissions from any person identified in or implicated by your Submission and, in the case of minors, from such minors and from their parents or legal guardians, as appropriate.
7.3. You acknowledge and agree that Nimbus has the right (but not the obligation) to alter, remove or refuse to post or allow to be posted any Submission. Nimbus encourages you not to disclose any personal information in your Submissions because other people can see and use the personal information in your Submissions. Nimbus takes no responsibility and assumes no liability for any Submission posted by you or any third party.
DATA AND PRIVACY
8.1. In these Terms, “Data” means:
a) any technical, usage or related information stored on or collected by the Services platform including: name, email and address, type of medication, unique Sensor serial ID number, medication delivery history logs, other inhaler use history logs, Sensor performance data and personal information as defined in Nimbus’s Privacy Policy.
b) results of further analysis of the data stored on the Services platform; and
c) copies of the above.
8.2. In the absence of any express written agreement to the contrary, you are only entitled to use Data contained or produced by the Services solely:
a) if you are a patient, for your own personal purposes; or
b) if you are a Healthcare Professional, to assist your patient or as part of a clinical trial or patient management system.
8.3. You are not permitted to sublicense, assign or transfer the Data or output produced by the Services to a third party or otherwise use Data for any commercial purpose, except where we have expressly enabled our Services to facilitate such transfer.
8.4. To use the Services, you must accept Nimbus’s Privacy Policy. Our Privacy Policy covers our collection, use, disclosure, access, amendment and deletion policies and other privacy practices relating to personal information that we process. If you have any question or concern about data privacy or security or wish to contact us about these matters, please refer to our Privacy Policy for details.
8.5. We accept no responsibility for any dealings with the Data that relates to you by you or your Healthcare Professional.
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
9.1. Nimbus owns all intellectual property rights (“IPR”) to all content, user interface, brand names, information, methods, materials, computer code and software included in the Services (collectively, “Services Content”), unless otherwise specified.
9.2. Intellectual property rights in the Services Content include copyright, designs, patents, trademarks, service marks, trade secrets, database rights or other IPRs. You acknowledge that no right, title or interest in or to the Services and the IPR is transferred or assigned to you under these Terms. Nimbus retains all rights that are not otherwise expressly granted in these Terms.
9.3. You may not copy, reproduce, distribute, publish, enter into a database, display, perform, modify, create derivative works from, frame, disseminate, transmit, broadcast or circulate, or in any way use or exploit any part of the Services Content, without our prior written consent, except to use the Services for its Designated Purpose.
9.4. To obtain written consent to use a copyrighted work, please contact us at contact@joinnimbus.com.
9.5. Any use or misuse of any IPR of Nimbus or third parties in connection with the Services is expressly prohibited, except as permitted herein.
9.6. To obtain written permission to use the trademark or service mark please contact the owner of the mark
ACCESS RIGHTS RESERVED
10.1. We reserve the right to modify, suspend or discontinue, charge and/or change fees charged for use of any element of the Services.
10.2. We are not liable to you or to any third party for any modification, suspension or discontinuation of or charges imposed on any element of the Services.
10.3. We may, from time to time, issue firmware or software updates to the Software to provide patches, bug fixes and/or new, replacement or improved features or functionalities.
SUPPORT
11.1. You may ask us questions, raise claims or report any problems in relation to the Services by sending an email to support@joinnimbus.com.
11.2. Notwithstanding the foregoing and subject to any rights that you may have at law, we do not warrant that all problems will be resolved or that we will respond to your query within a particular time frame.
WARRANTY DISCLAIMER
12.1. SUBJECT TO CLAUSE 12.5 AND WITH THE EXCEPTION OF ANY EXPRESS, SEPARATE MANUFACTURER’S WARRANTIES GIVEN BY NIMBUS IN RELATION TO THE SENSORS, THE SERVICES ARE PROVIDED TO YOU “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE,” WITHOUT ANY WARRANTY OF ANY KIND.
12.2. WE SPECIFICALLY DISCLAIM AND HAVE NO LIABILITY TO YOU FOR THE FOLLOWING RISKS: (A) OPERATING SYSTEM FAILURES OF YOUR MOBILE PHONE, TABLET OR OTHER COMPUTING DEVICE (‘DEVICE’); (B) INTERACTIONS BETWEEN YOUR DEVICE AND THE SERVICES; (C) VIRUSES, MALWARE OR OTHER MALICIOUS SOFTWARE ON YOUR DEVICE; (D) COMMUNICATION DELAYS WITHIN THE SERVICES.
12.3. SUBJECT TO CLAUSE 12.5, AND WITH THE EXCEPTION OF ANY EXPRESS, SEPARATE MANUFACTURER’S WARRANTIES GIVEN BY NIMBUS IN RELATION TO THE SENSORS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NIMBUS, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS, SUPPLIERS, DISTRIBUTORS AND SERVICE PROVIDERS (“NIMBUS PARTIES”) EXPRESSLY DISCLAIMS AND EXCLUDES ALL REPRESENTATIONS AND WARRANTIES WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, WRITTEN OR UNWRITTEN, WITH RESPECT TO THE SERVICES OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, NIMBUS PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. ALL REPRESENTATIONS, WARRANTIES AND LIABILITIES IN CONNECTION WITH ANY USER CONTENT OR SERVICES CONTENT ARE DISCLAIMED AND NO ORAL OR WRITTEN INFORMATION MADE AVAILABLE BY OR ON BEHALF OF ADHERIUM SHALL CREATE ANY WARRANTY.
12.4. SUBJECT TO CLAUSE 12.5, WE SPECIFICALLY DISCLAIM ANY LIABILITY ARISING FROM YOUR OR YOUR HEALTHCARE PROFESSIONAL’S RELIANCE ON THE INFORMATION OR DATA ACCESSED USING THE SERVICES. YOU ASSUME ALL RISK ASSOCIATED WITH YOUR RELIANCE ON THE SERVICES.
12.5. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF ANY PARTICULAR IMPLIED OR STATUTORY WARRANTIES, THE ABOVE EXCLUSIONS WILL ONLY APPLY TO YOU TO THE FULLEST EXTENT PERMITTED BY THAT APPLICABLE LAW.
12.6. PLEASE NOTE THAT SOME PRODUCT WARRANTIES MAY BE VOIDED IF INSTRUCTIONS CONTAINED IN THE PRODUCT MANUAL ARE NOT FOLLOWED.
MEDICAL DISCLAIMER
13.1. You understand and agree that Nimbus does not practice medicine and no patient-physician relationship exists between you and us.
13.2. The Services are not a substitute for competent professional medical advice. You (and your Healthcare Professional, if you are a patient) are exclusively responsible for any patient management and care decisions made using the Services, and any consequences of such decisions.
13.3. The Services or any other service offered by Nimbus are an information tool only and are not intended to be relied on for medical advice. Reliance on and use of any of the Services is solely at your own risk.
13.4. We are not responsible or liable for your relationship with your Healthcare Professional.
13.5. You agree not to bring any claim against Nimbus, its affiliates or licensees, and their respective officers and employees, alleging that any improper medical treatment resulted from your (or your Healthcare Professional’s) reliance on the Services.
LIMITATION OF LIABILITY
14.1. SUBJECT TO CLAUSES 14.2 TO 14.4, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP USING THE SERVICES.
14.2. THE TOTAL LIABILITY OF NIMBUS, ITS AFFILIATES AND THEIR RESPECTIVE REPRESENTATIVES IS LIMITED IN ALL CASES AND IN THE AGGREGATE TO THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER OR HEALTHCARE PROVIDER FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE EVENT THAT IS THE BASIS FOR THE FIRST CLAIM.
14.3. SUBJECT TO CLAUSE 14.4, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ANY OF THE NIMBUS PARTIES HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES FOR:
a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION; OR
b) INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR NIMBUS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.4. THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES IS NOT PERMITTED IN SOME JURISDICTIONS. OUR LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
INDEMNIFICATION
15.1. Subject to clause 15.2 below, you agree to indemnify, hold harmless, and defend the Nimbus Parties, and each of their respective officers, directors, contractors, agents, employees, successors and assigns from and against any and all demands, claims, damages, liabilities, judgments, fines, interest, penalties, losses, awards, fines, costs, expenses and harms, including without limitation reasonable attorneys’ fees and fees of other professional advisers (together ‘Losses’), arising out of or relating to your use or misuse of the Services (including, without limitation, your Submissions and your use of any Services Content) or your violation or breach of these Terms. These obligations will survive any termination of these Terms.
15.2. Your obligation of indemnification does not apply to Losses that arise solely from Nimbus’s gross negligence or willful misconduct, unless expressly prohibited by applicable law.
TERMINATION
16.1. We may terminate these Terms and the provision of the Services to you without notice or suspend your access to the Services if we believe that you have breached the Terms.
16.2. You may terminate these Terms at any time by sending us an email to support@joinnimbus.com.
16.3. In the event of termination for any reason:
a) we may continue to retain your Data, subject to our Privacy Policy and applicable laws;
b) termination will be without prejudice to either party's rights and remedies in respect of any breach of these Terms by the other party, where the breach occurred before the termination; and
c) the provisions of clauses 4, 5, 6, 7, 8, 9, 12, 13, 14, 15 and this section 16.3, together with those other provisions of these Terms which are incidental to, and required in order to give effect to, those clauses, will remain in full force and effect.
DISPUTE RESOLUTION
17.1. Governing Law and Jurisdiction:
a) If you reside in the United States, these Terms are governed by the laws of the State of Georgia, and the parties submit to the jurisdiction of the state and federal courts having jurisdiction over disputes arising in Fulton County, Georgia, and you hereby agree to consent to the personal jurisdiction of such courts.
17.2. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
NOTICE TO CALIFORNIA RESIDENTS
18.1. BY USING THE SERVICES, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
18.2. If the Services are at any time deemed an electronic commercial service (as defined under California Civil Code Section 1789.3), California residents are entitled to the following specific consumer rights information:
The provider of the Services in the U.S.A. is: Nimbus Health, Inc. If the Services are deemed as electronic commercial service, you may file a complaint regarding the Services or to receive further information regarding use of the Services by sending a letter to the attention of Legal Department, 190 Walker Street SW, #301, Atlanta GA, 30313.
LINKS TO OTHER WEBSITES AND SERVICES
19.1. The Services also may contain links to other websites or online services that we think may interest you (collectively, “Linked Services”). Linked Services are not under the control of Nimbus and Nimbus is not responsible for Linked Services or for any information or materials on, or any form of transmission received from, any Linked Service. The inclusion of a link does not imply endorsement by Nimbus of the Linked Services or any association with the operators of the Linked Services. Nimbus does not investigate, verify or monitor the Linked Services. Nimbus provides links to Linked Services for your convenience only. You access Linked Services at your own risk.
GENERAL
20.1. Nimbus may assign all or any of its rights under these Terms to any person or entity.
20.2. These Terms constitute the entire arrangement between the parties on the subject matter dealt with herein and supersede all previous arrangements.
20.3. If any provision of these Terms is held to be unenforceable for any reason, it will be severed and the remainder will continue in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provision.
20.4. The rights, powers and remedies provided under these Terms are cumulative and are in addition to any rights, powers or remedies provided by law.
20.5. Any waiver by a party of any rights or remedies under these Terms will be effective only if recorded in writing. No failure to enforce any provision of these Terms at any time by either party will in any way affect, limit or waive that party's right to subsequently require strict compliance with these Terms.
20.6. These Terms will not be construed as giving any third party any right, remedy or claim, unless expressly stated otherwise in these Terms or a separate agreement.
MOBILE APPLICATIONS
If you download an Nimbus’s App from a third party app store (the “App Platform”), you acknowledge and agree that:
21.1. These Terms are an agreement between you and us and not with the App Platform. As between Nimbus and the App Platform, Nimbus is solely responsible for the App.
21.2. The App Platform has no obligation to provide any maintenance and support services with respect to the App.
21.3. In the event of any failure of the applications to conform to any applicable warranty, (i) you may notify the App Platform and the App Platform may refund the purchase price for the App to you (if applicable), (ii) to the maximum extent permitted by applicable law, the App Platform will have no other warranty obligation whatsoever with respect to the App, and (iii) any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty is, as between Nimbus and the App Platform, Nimbus’s responsibility.
21.4. The App Platform is not responsible for addressing any claims you have relating to the App or your possession and use of the App.
21.5. If a third party claims that an App infringes another party’s intellectual property rights, as between the App Platform and Nimbus, Nimbus is responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
21.6. The App Platform and its subsidiaries are third-party beneficiaries of these Terms as it relates to your license to the App. Upon your acceptance of the terms and conditions of these Terms, the App Platform will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof.
21.7. You must also comply with all applicable third-party terms of service when using the App.
PLEASE CONFIRM YOUR ACCEPTANCE OF THE ABOVE TERMS BY:
(A) TICKING THE BOX ON THE USER CONSENTS PAGE OF THE APP OR
(B) CLICKING “ACCEPT” ON THE WEBSITE.
